Date: 20010316
Docket: IMM-953-00
Neutral Citation: 2001 FCT 195
BETWEEN:
MEI FENG XIAO,
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent
REASONS FOR ORDER AND ORDER
MULDOON, J.
Introduction
[1] This is an application for judicial review of the decision of a panel of the Convention Refugee Determination Division of the Immigration and Refugee Board (the CRDD), dated February 9, 2000, wherein the CRDD determined that the applicant was not a Convention refugee.
Statement of Facts
[2] The applicant was born on October 12, 1982. She is from the Fujian province in the People's Republic of China and arrived on or about August 31, 1999 in British Columbia by ship unaccompanied by any adult family member or other legal guardian, in so far as her identity can be determined.
[3] Subsequent to her initial detention under immigration procedures upon her arrival, the applicant has been residing with approximately 70 other unaccompanied minors, who also arrived by ship from the Fujian province, in a group home operated by the Ministry of Children and Families in Burnaby, B.C.
[4] Many of the minors' claims involved similar issues, and several claims were heard jointly by the refugee board. The applicant's claim was not joined because her particular circumstances raised the additional issue of religious persecution and the additional persecution she may suffer if returned because of alleged risks to female detainees in China. Her claim included the common issues which were raised in the joined claims and the additional issues particular to her.
[5] The same firm was retained by the Attorney General to represent the applicant and the other minors in their Convention refugee claims. The initial joined claims of 24 minors were held concurrently with the applicant's hearing. The submissions in the initial joined claims were not scheduled to be made until December 6, 1999, five days after the applicant's hearing. CRDD member Vanderkooy presided over both the hearing of the joined claims and over the hearing of the applicant's application.
[6] Counsel for the applicant requested permission to make submissions in writing rather than orally because of the number of issues, the amount of evidence, the complexity of the arguments and that arguments had not yet been made in the joined claims. The refugee determination board declined the request and limited the time for oral submissions to one hour. Mr. Vanderkooy was unwilling to discuss the matter : he stated that oral reasons were the norm, that the other hearings were irrelevant, and that he had to leave by 5 p.m. As a result, the oral submissions for the applicant were delivered in an extremely rushed manner, it is now alleged. This Court finds no reason to quash the CRDD's decision in the above mentioned complaints.
3. Issues
a. Did the Board err by refusing t provide the applicant with a proper opportunity as her counsel alleges, to present her case, and thus denying her natural justice because she was not offered a full and fair hearing, as is also alleged;
b. Did the Board err by misconstruing the applicant's particular social group; and
c. Did the Board breach the rules of natural justice by failing to address one of the applicant's principal arguments.
4. Applicant's submissions
a. Denial of full opportunity to present the case
[7] It is a breach of the principles of natural justice if a tribunal denies an applicant the opportunity to present the case properly[1]. Much depends on how the applicant defines "properly" and whether the applicant is really seeking special privilege, as distinct from the articulation of true rights.
[8] In Iossifov v. M.E.I.[2], Mr. Justice McKeown stated:
[2] In my view the Board did not provide the applicant with a full and fair hearing of his claim. I am in sympathy with the Board in trying to limit the amount of time applicable to any matter before it, but the Board must observe the principles of natural justice. The Board continually and repeatedly prevented the applicant from presenting his evidence relevant to persecution prior to 1990 in an organized fashion... Furthermore the Board reached no conclusion on whether there was past persecution in its decision. While I agree that the primary question in this matter is whether there was a well founded fear of future persecution, this cannot be decided in the matter before me without determining if there was past persecution.
[9] Counsel requested twice to make submissions in writing rather than orally. The reasonableness of the request was evinced by the actions of a differently constituted panel of the board hearing a separate claim only two days earlier. There, a panel composed of board members Hamelin and Graub, acceded to the request to provide written submissions following the submissions in the main joined hearing. Written submissions would have also provided an alternative to limiting the time to present the arguments. However, Mr. Vanderkooy may have been quite correct in saying that other hearings are irrelevant.
[10] The applicant submits that at the very least, the CRDD has an obligation to consider the reasons for the request if the applicant demonstrates that there are extenuating circumstances or reasons which present a claimant's arguments from being properly made. The applicant also submits that the CRDD ought to have provided reasons for its refusal. The request was denied by the board without any explanation to satisfy the applicant, and a time limit was set arbitrarily or peremptorily without explanation. Counsel objected many times but the CRDD refused to discuss the matter. But, perhaps counsel thought some delay would be salutary. One can view the matter in both lights.
[11] The applicant has submitted excerpts from the transcripts of the hearing which purport to demonstrate that the oral submissions were made in a hurried manner. One could equally conclude that counsel did not have his submissions clearly in mind. As in Iossifov, counsel claims that he was prevented from presenting the evidence in an organized manner. This Court ratifies and adopts the content of paragraphs 6 and 7, page 3 of the respondent's further memorandum or argument. Consequently, the CRDD is said to have ignored at least one of the applicant's principal arguments : that if she were returned to China, she would be at risk of being trafficked again. The board did not reach a definitive conclusion regarding that argument and declined to make any reference to the risk of future persecution as a consequence. This is claimed to be an error of law, although it avoids speculation of any kind.
[12] Despite Mr. Vanderkooy's assurances that the other hearing had no relevance to the proceedings in the applicant's claim, he nonetheless turned his mind specifically to evidence and submissions in the joined claims, wherein he stated at page 12 of the decision:
In these joined refugee claims, only the thinnest of any real or perceived religious practice or membership in a particular social group, in conflict with the government of China, has been made out. (Emphasis added).
The applicant's counsel persists in interpreting the above as being a reference to some joined claims of two or more applicants instead of the applicant's own various claims.
[13] Despite his assurances that the joined hearing over which he presided was not relevant to the applicant, Mr. Vanderkooy nonetheless refers to the joined hearing in denying the applicant's claim to refugee status. This the applicant's counsel urges, is unreasonable and unfair to the applicant. The Court does not see it that way.
b. Particular social group
[14] When counsel attempted to develop the argument regarding the applicant's particular social group, the presiding member implied that this aspect of the claim was fundamental and did not have to be reiterated. In oral submissions, counsel introduced the leading Supreme Court of Canada decision on membership in a particular social group and referred the tribunal to a number of CRDD and Federal Court decisions to support the proposition that persons under the age of 18 constitute a particular social group, i.e. children.
[15] The international definition of children is persons under the age of 18. The applicant asserts, without documentary proof, that she was 17 years old and submits that she is a member of that particular social group. The CRDD did accept that she was, at material times, 17 years of age, without any reference to the time taken for her mother's gestation. Moreover, there is no requirement for a particular social group to be in conflict with the source government[3]. "Therefore" the applicant submits that the CRDD erred in law by misconstruing the applicant's particular social group. She or her counsel seem to forget that the onus rests on the applicant to prove every necessary ingredient of her application.
c. Failure to deal with argument about trafficking
[16] Having submitted that the applicant belonged to a particular social group of children, as defined by the Convention on the Rights of the Child, counsel for the applicant then defined persecution by relying on the IRB Guidelines for Child Refugee Claimants, as if they were the law of the realm. Nevertheless, the CRDD complied with subsection 69(4) of the Act, even although it was quite apparent from her testimony that the applicant was amply able to appreciate the nature of the proceedings.
[17] In Baker v. M.C.I.[4], the Supreme Court of Canada held that the values reflected in international human rights law help to inform the contextual approach to statutory interpretation. The applicant relied on international instruments for their proscriptions on trafficking. The condemnation of forced labour and trafficking, notably of minors, has long been emphasized in many international instruments. Being trafficked denied the applicant a basic human right, and the denial of the right resulted in persecution. Once the applicant had been trafficked, the evidence showed that if she returned to China, she would probably be trafficked again. Accordingly, the applicant argued that once she was thus persecuted, she would likely be persecuted again. This argument is not proof : it is speculation, even if informed speculation.
[18] In its decision, the CRDD did not employ the approach suggested in the Guidelines and in Baker. The board did not examine the provisions of the Convention on the Rights of the Child in any meaningful way, nor did it refer to the other international instruments which were cited. In fact, the CRDD never found the risk of trafficking as persecution at all. The Convention on the Rights of the Child (resolution 44/25 of the G.A. of the U.N. of November 20, 1989) is comprehensive. While 18 years of age is the highest age of minority, the transition is not sudden; the Convention clearly recognizes that maturity is an on-going process such that some "minors" grow into maturity gradually, before attaining the age of 18. A seventeen-year-old is therefore an "elderly" minor. So it appears in this case. Various passages of the Convention illustrate the point; thus
Article 1
For the purposes of the present Convention, a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier.
Article 5
States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by the local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.
Article 11
1. States Parties shall take measures to combat the illicit transfer and non-return of children abroad.
2. To this end, States Parties shall promote the conclusion of bilateral or multilateral agreements or accession to existing agreements.
Article 12
1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
Article 14
1. States Parties shall respect the right of the child to freedom of thought, conscience and religion.
2. States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her rights in a manner consistent with the evolving capacities of the child.
[Applicant's record pp. 64-67 & seq.]
The Convention is too long to recite here in full, but it makes other references to a child's evolving capacities, showing no sudden transition. The provisions are quite adaptable to the applicant herein, despite her counsel's efforts to make her seem to be a helpless infant.
[19] It is well-established that a tribunal errs in law when it fails to consider the totality of the evidence properly before it or fails to satisfy the Court that it has done so[5]. Given the sparse references to the trafficking arguments or to the materials used to support them from the board, the applicant submits that the CRDD failed to account for important evidence. On the other hand here are pertinent passages from the decision written by the CRDD's presiding member, in which the other member concurred : Speaking of the witness Dr. Graham Johnson whose testimony was before the CRDD, the panel wrote :
He is not an expert or scholar in law. Indeed, it seems that his most precise opinion evidence on the pattern of penalties for illegal emigrants (transcript of his evidence, pages 51, 81ff. and 91) happen to be drawn from the an (sic) article found in evidence, the Fuzhou Ribao of 28 September 1999. (Exhibit 5.1, Vol 1, Tab 1. The percentages used by Dr. Johnson differ from that found in the article, but are similar, comparatively speaking.).
***
The transcript also reveals a witness who is apparently reluctant to qualify his weak sources for Fujian. Dubious explanations were offered to pointed questions about it. For example, he referred to the Chinese government's alarm at the recent arrivals in Canada of ships carrying Fujianese (page 60), suggesting that returnees were now much more vulnerable to serious repercussions. His evident source for this, elicited from him in descending order of relevance:
i) senior members of the Foreign Ministry in Beijing (pages 4 and 47);
ii) who were very senior members of the Foreign Ministry and are now retired to a corresponding NGO (page 57);
iii) friends who are former diplomats, over a 'formal' dinner hosted for his benefit (pages 58); and
iv) it turns out that it was a luncheon unrelated to the question of illegal migrations, in August 1999 in Beijing, in which these friends happened to discuss it with him (page 89).
He also conceded that the Chinese Foreign Ministry carries no jurisdiction over the penalties meted out to illegal migrants. In sum, this witness portrayed his source work as very sound, yet when judiciously probed, it proved more to be more like a dinner conversation with retired officials without responsibility for the issue. I find this to be an unfortunate show of equivocation as to sources, rendering his evidence unreliable for the purpose of assisting the claims at hand.
Also, I cannot accede to counsel's argument that extensive Canadian media coverage (Exhibit 6, Vol.III) of the four smuggling ship arrivals may move the Chinese authorities to harshly and disproportionately punish returned claimants that it would amount to persecution, not prosecution. It is simply not established. In this respect, because of my finding that he was reluctant to qualify his (in my view, deficient) sources, I discount Dr. Johnson's testimony that the four boats arriving in B.C. waters "were seen as great embarrassment to China," and "that something would have to be done to discourage this." When probed him on point, he began to retract his commentary, changing it from embarrassment to puzzlement - not of the Chinese government, but of his Beijing luncheon hosts (page 60).
Therefore, I find that the claimant has not established a well-founded fear of persecution on account of her illegal exit from China.
(Applicant's record pp. 015 and 016)
What the claimant fears is what she knew could happen to her all along, even prior to boarding the snakeheads' ship : prosecution, not persecution.
d. Credibility of the applicant
[20] The applicant submits that the tribunal did not find that the applicant was not a credible witness in general, but only on the issue of her religion. It found that she was 17 years old, that she was from the Fujian Province and that she had arrived in British Columbia by smuggling ship on or about August 31, 1999. The CRDD found the applicant to be credible regarding the essential facts for the argument about trafficking at the hearing.
e. Summary
[21] The applicant submits that she provided clear and convincing proof of her claim to be a Convention refugee at the hearing, but because of the manner in which the board insisted that her case be presented, the proof and the arguments were misconstrued and ignored. Neither she nor her counsel was persuasive in making these last contentions. As to her growing and ever-developing maturity to make life's decisions for herself, as mentioned in the Convention on the Rights of the Child (supra), the applicant testified :
Q. Okay. Now, Mei Feng, I'm going to ask you some questions about your trip to Canada. Whose decision was it for you to leave?
A. I make the decision myself.
Q. Okay. Why did you leave?
A. Two reason. One is because the family's very difficulties, with the hardships. Another reason, when I come to Canada, I be able to practice my religion freely.
Q. Okay. When you say "hardships that are suffered by your family," what do you mean by those?
THE PRESIDING MEMBER: Just -- just -- sorry, I think this is important testimony. So was -- and if I may draw back to this, what I heard. It was the claimant's decision to leave. She decided it herself, and then your question was why?
MR. PUDDICOMBE: My question is why did she leave, yes.
THE PRESIDING MEMBER: Yes, okay. And if I could hear that response again.
A. My parent let me come, too.
MR. PUDDICOMBE:
Q. Okay. The question the board member --
THE PRESIDING MEMBER : Just a -- but I think I understand her. She's saying ... Your parents agreed that you could come, as well.
A. Yes.
MR. PUDDICOMBE:
Q. I think the question that the presiding board member had, and I had earlier, was why did you leave?
A. Yeah, because I had some hardships at home, and I can practice religion freely in Canada.
Q. Okay. So when you say "hardship," what do you mean by "the hardships"?
A. Family owe a lot of money.
Q. Okay. Any other hardship?
A. I have a lot of brother and sister at home.
Q. Okay. And is there any other source of income, other than the money your father makes from the fishing?
A. No.
Q. How old are your brother and sister?
A. My sister is 16 years old, brother 14.
THE PRESIDING MEMBER: Sister's 16, brother 14.
THE INTERPRETER: Fourteen.
A. Another one 11 years old.
THE PRESIDING MEMBER: Brother?
A. Brother, yes.
THE PRESIDING MEMBER: Four (speaking in Chinese) in family?
A. Yeah, four in the family.
***
Q. Do you know how much the trip cost?
A. Don't know.
Q. How is the cost of the trip supposed to be paid? Who will pay it?
A. Don't know.
Q. Now, when you left China, what was your intention upon arriving in Canada? What were you supposed to do when you arrived?
A. Have two intention, two reason. One is to make money to help my father to pay for the debt. Another reason is to practice my religion freely.
***
A. Because I wasn't persecute directly. Because at that time, I never really thought about it.
Q. When you were leaving China, in your mind, were you leaving China because you wanted to come here to earn money, or were you leaving China because of religious persecution?
A. Both.
Q. And was it your intention to tell somebody, once you left China, about this persecution?
A. Yes, but when Immigration asked me questions, I was very nervous, so I forgot.
Q. All right. And I'll just ask you one more on this point. If you were nervous or you forgot, why is everything else that they asked you able to get a correct answer?
A. I remember everything very clearly, or remember them very well, the rest.
Q. Give me some examples of -- of -- of the fact that you -- sorry, I should say this again. What do you mean when you say you weren't persecuted directly because of your religion?
A. Maybe before I come to Canada, the government haven't come to arrest me yet -- arrest myself yet.
Q. They arrested anybody in your family before?
A. No.
Q. Have you ever had any problems with the government because of your religious beliefs?
A. Not in my household or not my family.
Q. All right.
This Court finds no fault or failure in the CRDD's disposition of this case on the basis of this testimony by the applicant.
5. Respondent's submissions
a. Decision of the CRDD
[22] The issue before the board was whether the applicant had a well-founded fear of persecution based on her religion and membership in a particular social group. The CRDD concluded that the applicant was not a Convention refugee, that she was not a credible witness and that she had not established an objective basis for her fear of persecution.
b. Denial of full opportunity to properly present the case
[23] The respondent submits that the limitation of oral arguments to 45 minutes is not a reviewable error. There is no obligation on a panel of the CRDD to provide the opportunity for written submission, or to provide the applicant with an unlimited amount of time during which to make oral submissions. The CRDD has the duty to dispose of a matter expeditiously, and to allow a reasonable opportunity to make submissions. Here, the applicant's arguments comprised 50 pages of the hearing transcript. The applicant submitted a voluminous collection of authorities. There was a reasonable opportunity to make submissions and no breach of procedural fairness occurred. Immigration Act, subsections 68(2) and 69.1(5), provide so.
[24] The Iossifov decision is distinguishable. Iossifov concerned a situation where the applicant had been prevented from presenting evidence to substantiate his claim to persecution. Here, the applicant was given more than the originally allowed time to present her evidence. A reasonable limitation, as demonstrated here, on the amount of time allotted to oral submissions is not a breach of natural justice.
c. Particular social group
[25] The respondent submits that the CRDD did not err in failing to hold that the applicant was not a Convention refugee. The applicant's fear was engendered by the method that she chose to leave China, not because she was a person who was not yet 18
years of age. As the Supreme Court of Canada stated in Canada (Attorney General) v. Ward[6] the fear itself was based on action, not on affiliation.
[26] The authorities indicate that it is the intent of the persecutor which is relevant in determining whether the harm that an individual fears is related to a Convention ground. Here, the alleged persecutors are the snakeheads who smuggle people out of China. No evidence was presented to the Board that the snakeheads targeted the applicant because of her status as a minor, or because of any Convention ground. The evidence demonstrated that the snakeheads smuggle for profit, if not callous greed. Accordingly, no nexus existed between the feared harm and an enumerated ground of persecution under the Convention refugee definition.
d. Failure to deal with trafficking as persecution
[27] Because the board did not find that the applicant had a fear by reason of her membership in a particular social group, it was unnecessary for it to analyze any further, every aspect of the alleged fear. Moreover, the CRDD is not required to discuss all of the evidence which was introduced[7].
[28] The Federal Court of Appeal has held that the definition of persecution is "systematic infliction of punishment directed against those holding a particular (religious belief); persistent injury ... from any source."[8]. The CRDD correctly applied the definition when it stated :
... neither do I find the punishments mentioned, flowing from these laws of general application in China, to be so serious or disproportionate as to clearly amount to persecution. As to possible beating
of those held in detention for illegal exit, it has not been reliably established that there is more than a mere possibility of its occurrence for this young claimant.
(Applicant's memo of argument : p. 013)
e. Summary
[29] The onus, in law, is on the applicant to provide proof of her claim to refugee status. The respondent submits that the applicant did not adduce sufficient evidence to establish a well-founded fear of persecution. This finding was reasonably open to the board based on the evidence which was before it, and does not constitute an error of law. This Court adopts and ratifies the arguments expressed in the respondent's memorandum of arguments filed herein.
6. Remedies
[30] The applicant asks for the following relief:
a. An interim order that the tribunal record in this matter, including all documents filed in relation to the applicant's claim to be a Convention refugee, shall be provided by the tribunal within two weeks of the date of the order;
b. An order quashing and setting aside the decision of the board;
c. A declaration that the applicant has established her claim to be a Convention refugee; and
d. An order that this matter be referred back to a differently constituted panel for a determination not inconsistent with this Court's decision.
The applicant failed to discharge the onus to make her case, and accordingly, her application is to be dismissed.
[31] The respondent requests that this application for judicial review be dismissed, and so it is.
Ottawa, Ontario
March 16, 2001
Judge
O R D E R
This application by Mei Feng Xiao for leave to bring judicial review, and for such review, of the Convention Refugee Determination Division's decision of January 31, 2000, in CRDD file N0 V99-03527, wherein the CRDD found the applicant not to be a Convention refugee be, and it is hereby dismissed.
Judge