Date: 20041014
Docket: IMM-1613-04
Citation: 2004 FC 1419
BETWEEN:
YAN FEI LIN
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
[1] This is an application under s. 72(1) of the Immigration and Refugee Protection Act (IRPA) for a judicial review of a decision by the Refugee Protection Division (RPD), dated January 30, 2004, wherein the claim of Yan Fei Lin, the Applicant, was rejected. The RPD concluded that she was neither a Convention refugee nor a person in need of protection.
Facts
[2] The Applicant is a citizen of the People's Republic of China. She was born on November 3, 1987. She is now 16 years old.
[3] When in China, she lived with her parents, paternal grandparents and older brother. Her family is poor since her dad has health problems; her mother was recently laid off from work. Her parents could not afford to send her to school; she finished grade 8 and remained at home.
[4] Her parents decided to send her to the United States to work to support herself and her family. They found people to help smuggle her to North America and, in January 2003, she left her home and met with two women. One worked for the person in charge of arranging travel to the US and the other accompanied the Applicant. She pretended that the lady was her mother during the trip and upon her arrival in Canada. They travelled with false French passports.
[5] On their way to the US, they stopped in Canada where Canadian immigration officials interrogated them. The Applicant pretended to be the daughter of the lady travelling with her. They claimed refugee protection pursuant to s. 96 and 97 of the IRPA. They were detained. The Applicant was released from detention and sent to a foster home. In March, she finally told her social worker her true identity, the circumstances surrounding her departure from her country and that the lady she was travelling with was not her mother.
[6] On September 10, 2003, the RPD heard the Applicant's claim and it was rejected on January 30, 2004.
The RPD's Decision
[7] In their decision, the RPD determined that the Applicant was credible. They found that the claimant's fear of persecution was not linked to any of the five grounds, including membership in a particular social group. The Applicant alleged being afraid to return to China because she left illegally, she would be detained, fines would be imposed, and she also disclosed details about her smuggler. The RPD determined there would not be a reasonable chance of her being persecuted if she returned to China; that she was not at risk to be harmed. If she remained in Canada, she would work to remit money to her parents and eventually to smugglers. Finally, it was in her best interest to be with her parents. If she continued to the US as planned she would face a life of servitude.
[8] The Applicant submits that there are two issues:
Did the RPD err by failing to consider whether the treatment of the Applicant in her country as a second child amounted to persecution?
Did the RPD err by failing to properly access the best interests of the Applicant in accordance with s. 3(3)(f) of the IRPA and the Convention on the Rights of the Child?
[9] On the first issue, the Applicant submits that she is a second child and only daughter; that though not raised during her attendance before the Board, it was clear from the documents on file. The Board had an obligation to determine what could be the result of returning a minor second child to the Peoples' Republic of China. Relying on Cheung[1], he argued that the Court had made a finding that second children face severe discrimination and they were found to constitute a particular social group within the meaning of the Convention Relating to the Status of Refugees. The Applicant submits that the RPD made no analysis of the possible repercussions of that status.
[10] Secondly, the Applicant argues that s. 3(3)(f) of the IRPA imposes an obligation to the RPD to apply IRPA in a manner that complies with the Convention on the Rights of the Child. In all actions concerning children, the best interest of the child shall be of primary consideration. In the impugned decision, the RPD concluded that the best interest of the Applicant is to be with her parents. In the case at bar, her parents sent her to North America purposely to "work like a slave". The needs of her family for funds necessary for survival have not changed and there is the strong likelihood that the Applicant would once again be sent to North America.
[11] The Respondent argues that an Applicant has the onus of making her case and, at a minimum, establish on a balance of probabilities that she meets both the objective and subjective factors that constitute persecution. In this case, the Applicant did not raise any concerns about being a second child and did not describe any persecution arising from that situation which could suggest that she had any subjective fear. There were no facts advanced or argued with respect to either the objective or subjective basis of fear of persecution based on being a second child. The Respondent further submits that the onus is on the Applicant to bring forth the evidence to support her claim.
[12] On the second issue, the RPD reasonably considered all the grounds advanced by the Applicant with respect to risk to life and torture. The decision adequately considered the best interest of the Applicant based on all the evidence and it was concluded that the Applicant would not be at risk should she be returned to her country.
[13] Section 96 of the IRPA defines a Convention refugee:
96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
[14] The decision in Cheung does not support the proposition advanced by the Applicant. The Federal Court of Appeal found that a woman in China, who has more than one child and is faced with forced sterilization, can form a particular social group within the meaning of section 96 of the IRPA; "she had already experienced deprivation and could be subject to further persecution should she be returned to China". These are not the facts in the case before the Court. This is not a situation of forced sterilization and the decision in Cheung is not useful and was totally misinterpreted by the Applicant.
[15] The Applicant is not a member of any particular social group. Nothing in the evidence supports such a claim; she has not suffered deprivation because of her status as a "second child". There are no objective or subjective factors that constitute persecution. The "second child particular social group" does not apply to young females, but primarily to women giving birth to more than one offspring.
[16] In my opinion, the Applicant is not a refugee as defined in the IRPA. I can understand why she prefers Canada to China and as counsel pointed out she is an economic refugee, not a Convention refugee.
[17] On the second issue, it is correct that the RPD must apply IRPA in a manner that complies with the Convention on the Rights of the Child. But, that does not change her circumstances. The RPD provided a detailed analysis of what the Applicant could face if returned to China and their decision is reasonable and should not be interfered with.
[18] The Board rightfully concluded that this Applicant was not a person in need of protection nor would she be subject to any personal risk to her life or unusual treatment if returned to China.
[19] The application for judicial review will be dismissed. No serious question will be certified.
(Sgd.) "Paul Rouleau"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1613-04
STYLE OF CAUSE: YAN FEI LIN v. THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: October 13, 2004
REASONS FOR ORDER: ROULEAU J.
DATED: October 14, 2004
APPEARANCES:
Mr. Warren Puddicombe FOR APPLICANT
Mr. Peter Bell FOR RESPONDENT
SOLICITORS OF RECORD:
Embarkation Law Group FOR APPLICANT
Vancouver, BC
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada