Date: 20010813
Docket: IMM-2746-00
Neutral Citation : 2001 FCT 884
Ottawa, Ontario, August 13, 2001
Present: The Honourable Mr. Justice Muldoon
Between:
LONG WEI ZHU,
FU LIN,
FU SHENG BIAN,
FU ZHEN BIAN,
ZENG TIAN TIAN,
MING ZHOU,
JIN FU LIN,
JIANG YONG YAN,
PENG LIN,
RUE CHU LIN,
XING WEI OU,
ZI GUANG WANG,
HUI ZHANG,
FA FU SUN,
CAI YANG LI,
SUN PING JIANG,
Applicants,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS for ORDER and ORDER
1. 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, certified on May 11, 2000, wherein the Board determined that the applicants are not Convention refugees. The applicants here, sixteen in all, jointly sought a determination that, pursuant to Act section 69.1, they were Convention refugees. The joinder of their claims arose through collective request by their counsel.
2. Statement of Facts
[2] The applicants are all from Fujian Province, People's Republic of China. In August, 1999, they were "dumped" off on the British Columbia coast by "a smuggling ship" which then tried to escape. They are all young and male. Each claimed to be under the age of 18 before leaving China in June, 1999. Two attained the age of 18 before th CRDD hearing: Zhang, Hui and Tian, Zeng Tian; the CRDD determined Zhou, Ming to be already 20 or older.
[3] The applicants' trip to Canada was difficult and dangerous. They are in Canada without parents and are in the care of the British Columbia Ministry of Children and Families.
3. Issues
a. did the tribunal misconstrue or fail to consider properly if a child under the age of 18 can legally consent to being trafficked and exploited; and
b. did the tribunal misconstrue "persecution", and deny the procedural fairness to the applicants by failing to address maningfully their principal legal argument.
4. Applicants' Submissions
The Decision
[4] As mentioned above, the age distribution is as follows : the tribunal held that 7 of 16 applicants were 16 or under. Six applicants were 17 at the time of the tribunal's hearing; 2 applicants, above mentioned, were 18; and one was 20 or older.
[5] In written and oral submissions, counsel for the applicants set out the leading jurisprudence on membership in a particular social group and identified four previous decisions of the Refugee Division and one Federal Court of Appeal decision to support the proposition that children can constitute a particular social group. By relying on the international definition of children as persons under the age of 18, and by submitting that the relevant time for determining their age is when they left China, the applicants argued that they were members of a particular social group, to wit, children.
[6] Counsel then defined the nature of the feared persecution, and referred to the Chairperson's Guidelines for Child Refugee Claimants, which states:
In determining the child's fear of persecution, the international human rights instruments, such as the Universal Declaration of Human Rights, the International Covenant Of Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and the Convention on the Rights of the Child, should be considered in determining whether the harm which the child fears amounts to persecution.
[7] Citing international human rights instruments which protect minors against servitude or forced labour, and from being trafficked or exploited, the applicants asserted that such harm amounts to persecution. The applicants submitted that the key violation here is the right of the minors to be protected from trafficking and exploitation.
[8] Notwithstanding the applicants' explicit submissions that trafficking, exploitation and forced labour were the key violations, the tribunal focused on the applicants' supplementary argument regarding the penalties which they would face upon return for illegally exiting China. It is only following the determination of the refugee claims that the tribunal refers in passing to counsel's argument.
[9] In the tribunal's brief consideration of the argument, it fails properly to identify and consider the key issue of persecution, namely, the trafficking, exploitation and forced servitude of children. Rather, the tribunal discusses the applicants' supplementary argument regarding penalties for illegal exit. At page 28 of the reasons, the tribunal states:
Counsel for the claimants have relied on allegations that each of these eighteen [sic] claimants was not yet eighteen years of age when he left China in June 1999. Therefore, they argue, each was then a "child" as defined by the United Nations Convention on the Rights of the Child. They then seek to have this panel relinquish, in effect, its own fact-finding function in favour of deeming that all these "children", as formally defined, lack volitional powers. For this purpose, they invoke a formal concept of filial piety, especially as it has been adopted by Dr. Johnson. Then, shifting to the claims at hand, they ask the panel to assign these "facts" to each claimant: they could not have freely decided to leave China; therefore it was imposed upon them; this imposition is a form of persecution, or at least it leads to persecution -- in the form of penalties for illegal exit.
Ergo, the claimants' own personal stories no longer matter and, by definitional sleight of hand, each "child" is necessarily a Convention refugee.
Children and Consent
[10] The tribunal focuses on whether the applicants consented to leave China, but it did not address whether the children knew that they were being trafficked, and would likely be exploited. Except for the unconscionable "fare" charged by the snakeheads, where is the evidence to show that they "would likely be exploited"? The issue of consent to being trafficked is different from the issue of consent to leave China for better economic opportunities. The tribunal is alleged to have erred in failing to consider whether these children knowingly consented to being trafficked or exploited. The applicants submit that volition to leave China is not the same as consenting to being trafficked and exploited, if such were the case.
[11] Even if the tribunal had held that these applicants wanted to leave China, it would then have had to consider whether children can legally consent to being trafficked or exploited. The tribunal fails properly to consider this issue, according to the applicants.
[12] The Convention defines a child as "every human being below the age of eighteen years, unless under the law applicable to the child, majority is attained earlier." It is conditional. In other international instruments, any person under the age of 18 is specifically protected from forms of compulsory labour. Similarly, the Refugee Division's Guidelines regarding Child Refugee Claimants simplistically defines a child as "...any person under the age of 18 who is the subject of proceedings before the CRDD".
[13] International and domestic law recognize that children require special protections. The preamble to the Convention on the Rights of the Child, recalls that "in the Universal Declaration of Human Rights, the United Nations proclaimed that childhood is entitled to special care and consideration." Article 3 of the Convention further provides that "the best interests of the child shall be a primary consideration" in all actions concerning children, whether undertaken by public welfare institutions, courts of law, administrative authorities or legislative bodies. Who can say with certainty that escaping that authoritarian State, the Peoples' Republic of China, was not in these young persons' best interest?
[14] The Convention on the Rights of the Child speaks to protecting children from a number of specific forms of exploitations including economic exploitation and sexual exploitation, and provides that "States Parties shall protect the child against all other forms of exploitation prejudicial to any aspects of the child's welfare." No doubt can be sanely entertained on that score.
[15] In Baker v.M.C.I. [1999] 2 S.C.R. 817 at [71], the Supreme Court of Canada noted that the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review. The Court stated:
[71] The values and principles of the Convention recognize the importance of being attentive to the rights and best interests of children when decisions are made that relate to and affect their future. In addition, the preamble, recalling the Universal Declaration of Human Rights, recognizes that "childhood is entitled to special care and assistance". A similar emphasis on the importance of placing considerable value on the protection of children and their needs and interests is also contained in other international instruments. The United Nations Declaration of the Rights of the Child (1959), in its preamble, states that the child "needs special safeguards and care". The principles of the Convention and other international instruments place special importance on protections for children and childhood, and on particular consideration of their interests, needs, and rights. They help show the values that are central in determining whether this decision was a reasonable exercise of the H & C power.
[16] Given the recognition that "childhood is entitled to special care and assistance" and the similar emphasis on "the importance of placing considerable value on the protection of children and their needs and interests", it would be contradictory to suggest that children could forgo all such special protections and care if they were perceived to have consented to such exploitations. However, the tribunal never considered this because it considered only whether the children consented to leaving China. Exploitations are not so clearly shown here as to be considered proved.
Misconstrued "Persecution"
[17] The applicants relied on international instruments to establish an international proscription on trafficking. The condemnation of forced labour and trafficking, especially for minors, is widespread and longstanding in the international instruments. Being trafficked, the applicants asserted, denied them a core human right. The applicants equated denial of a core human-right with persecution. Having once been trafficked, the applicants speculated that they are likely to be trafficked again. Accordingly, once persecuted, they would likely be persecuted again. The tribunal, however, does not meaningfully examine the provisions of the Convention on the Rights of the Child and fails to refer to any of the other international instruments, the applicants complain.
[18] The IRB Guidelines on Child Refugee Claimants provide that in determining the child's fear of persecution, international human rights instruments should be considered in determining whether the harm which the child fears amounts to persecution. The tribunal failed to do this.
[19] The tribunal failed to consider properly whether trafficking or exploitation are forms of persecution per se. Instead, it only considers whether punishment for illegal exit amounts to persecution.
[20] The tribunal does not consider the documentary evidence which establishes that the applicants were being trafficked and would likely have been subjected to exploitation. For instance, Mr. Dennis McNamara discusses the vulnerability of children refugees, and notes that refugee children are "... the most vulnerable category of an already vulnerable population. When they cross a border to flee persecution or conflict, refugee children often lose whatever social or familial protection they enjoyed at home." Such an assertion begs the question in these circumstances._ The tribunal also ignored the statement of Elinor Caplan, Minister of Citizenship and Immigration, wherein she stated:
Today, criminally-organized smuggling and trafficking operations are conducting, an extensive international trade in lives and in the forced labour of human beings.
The United Nations estimates that international smuggling and trafficking operations have grown to a ten billion-dollar a year industry.
Organized criminals are demanding as much as $50,000 in unconditional debt from their naive or misguided victims, exploiting their simple desire for a better life.
We know that this debt is typically repaid over a short and brutal lifetime of illicit activity, sexual exploitation and forced labour. This is a truly despicable set of circumstances.
But we must be clear about its source, and direct our rightful anger and outrage toward the criminals who seek profit in human suffering, rather than toward their victims, who in search of a better life, allowed themselves to be put into such a mess.
(Applicants' record pp. 96 & 97)
* * * * *
Human trafficking, however, is more akin to human slavery. The goal of traffickers is profit from indentured human servitude. Once their debts have been imposed, the victims of human trafficking are bound to a long term repayment plan involving forced labour, prostitution and other illicit activity.
These victims often have reason to fear for their lives, and the lives of their family members back home. This exploitation is reprehensible.
In such criminally-organized human trafficking, Canada is facing something new.
* * * * *
For human traffickers, however, the goal is not legal status. In the first instance, it is to evade detection at our ports of entry, in order to enter unnoticed, and force their passengers underground and into servitude as soon as possible.
(Applicants' record p. 98)
Sage words, indeed. Even if quoted fully the Minister's advice could hardly be determinative of the issues herein.
[21] In addition, the Minister's representative submitted a book of documents which contained an article by Ko-Lin Chin of Rutgers University, entitled "Safe House or Hell House? The Experience of Newly Arrived Undocumented Chinese". Professor Chin states:
Upon arrival in the United States, undocumented Chinese are reported to be locked up in safe houses operated by people hired by the human smugglers to collect the passage fees. The migrants are released only after their families or relatives pay off the smuggling charges. In the process, many Chinese migrants are believed to have been physically and sexually assaulted by the debt-collectors.
[22] Professor Chin explains that, according to his survey, not every migrant who owes money to the smuggler is detained after he or she enters the United States. However, his data suggests that younger migrants are more likely to be detained than older migrants. He also reports that once a migrant overstays the grace period, the debt-collector may intensify the cruel and unusual punishment of the migrant. It is possible that his observations apply in Canada.
State Protection
[23] If the Chinese authorities are unable to protect the applicants from being re-trafficked, there is no requirement that the state's inability be linked to a Convention ground. Rather, the applicants must demonstrate that there is more than a mere possibility of persecution and that the state is unable to effectively protect them; or that they were unwilling to seek state protection because their fear of persecution.
[24] In Canada (Attorney General) v. Ward [1993] 2 S.C.R. 689., the Supreme Court of Canada reviews the issue of "state protection" and in particular the two branches of "unwilling" and "unable":
[57] Whether the claimant is "unwilling"or "unable"to avail him- or herself of the protection of a country of nationality, state complicity in the persecution is irrelevant. The distinction between these two branches of the "Convention refugee"definition resides in the party's precluding resort to state protection: in the case of "inability", protection is denied to the claimant, whereas when the claimant is "unwilling", he or she opts not to approach the state because his or her fear on an enumerated basis. In either case, the state's involvement in the persecution is not a necessary consideration. This factor is relevant, rather, in the determination of whether a fear of persecution exists.
(pp. 720-21)
[25] The Court then reviews the circumstances where the failure to approach the state for protection:
[67] Most states would be willing to attempt to protect when an objective assessment established that they are not able to do this effectively.
... it would seem to defeat the purpose of international protection if a claimant would be required to risk his or her life seeking ineffective protection of a state, merely to demonstrate that ineffectiveness.
[68] Like Hathaway, I prefer to formulate this aspect of the test for fear of persecution as follows: only in situations in which state protection "might reasonably have been forthcoming", will the claimant's failure to approach the state for protection defeat his claim. Put another way, the claimant will not meet the definition of "Convention refugee"where it is objectively unreasonable for the claimant not to have sought the protection of his home authorities; otherwise, the claimant need not literally approach the state. (Ward, S.C.R. p. 724)
[26] The Court further notes that where the state does not concede its inability to provide protection, "clear and convincing confirmation of the state's inability to protect must be provided." The Court then provides as examples of such clear and convincing confirmation:
[69] ... For example, a claimant might advance testimony of similarly situated individuals let down by the state protection arrangement or the claimant's testimony of past personal incidents in which state protection did not materialize. Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens. Security of nationals is, after all, the essence of sovereignty. Absent a situation of complete breakdown of state apparatus, such as that recognized in Lebanon in Zalzali, it should be assumed that the state is capable of protecting a claimant. (pp. 724-25)
[27] The Supreme Court of Canada summarizes the issue of state protection in Ward, as follows:
[72] In summary, I find that state complicity is not a necessary component of persecution, either under the "unwilling" or under the "unable" branch of the definition. A subjective fear of persecution combined with state inability to protect the claimant creates a presumption that the fear is well-founded. The danger that this presumption will operate too broadly is tempered by a requirement that clear and convincing proof of a state's inability to protect must be advanced. I recognize that these conclusions broaden the range of potentially successful refugee claims beyond those involving feared persecution at the hands of the claimant's nominal government. As long as this persecution is directed at the claimant on the basis of one of the enumerated grounds, I do not think the identity of the feared perpetrator of the persecution removes these cases from the scope of Canada's international obligations in this area. ... (P. 726)
[28] The reasonableness of the applicants' willingness to seek protection of the state, even if it were available, which is denied, must be assessed in light of their status as minors. As children, the applicants may be less inclined to seek the protection of the state, particularly where this would require them going against their parents' directions. (Evidence on this last argument is far from complete or compelling.)
Denial of procedural fairness
[29] The Supreme Court of Canada in Ward affirmed that the tribunal must consider all of the grounds for making a claim to refugee status even if the grounds were not raised by the claimant during the course of the hearing. In the instant case, the tribunal failed to consider an issue that was raised during the hearing, say the applicants.
[30] The tribunal is alleged to have failed to deal meaningfully with the applicants' principal argument or evidence adduced to support it. The tribunal contrived the argument into a more conventional one by relying on penalties for return upon illegal exit to ground the claim. That risk was secondary and provided as a supplementary argument, according to the applicants.
[31] Relevant evidence properly before the tribunal included portions of the Convention on the Rights of the Child and several trafficking-specific and general human rights instruments. In addition there was specific reference made to the Refugee Division's own Guidelines on Child Refugee claimants and to the UNHCR Handbook.
[32] By ignoring the evidence and by failing to address the principal argument of the applicants, the tribunal denied them the procedural fairness to which they were entitled. (Ioda v.M.E.I. (1993), 65 F.T.R. 166 (T.D.).) They were assuredly entitled to procedural fairness, but this Court is not convinced that it was denied.
5. Respondent's Submissions
[33] The tribunal made the following determinations regarding the applicants:
In these sixteen joined claims, only the thinnest of any real or perceived political opinion, religious practice or membership in a particular social group, in conflict with the government of China, has been established. Also, it will become abundantly clear in these reasons that illegal departure per se was not a political statement for these claimants, but rather an act driven primarily by the economic considerations of themselves and their families.
(Applicants' record, p. 20; reasons, p. 11)
Decision of the Tribunal
[34] The tribunal stated the following in the reasons:
Counsel for the claimants have relied on the allegation that each of these eighteen [sic] claimants was not yet eighteen years of age when he left China in June, 1999. Therefore, they argue, each was then a "child" as defined by the United Nations Convention on the Rights of the Child. They then seek to have this panel relinquish, in effect, its own fact-finding function in favour of deeming that all these "children", as formally defined, lack volitional powers. For this purpose, they invoke a formal concept of filial piety, especially as it has been adopted by Dr. Johnson. Then, shifting to the claims at hand, they ask the panel to assign these "facts" to each claimant: they could not have freely decided to leave China; therefore it was imposed upon them; this imposition is a form of persecution, or at least it leads to persecution - in the form of penalties for illegal exit. Ergo, the claimants' own personal stories no longer matter and, by definitional sleight of hand, each "child" is necessarily a Convention refugee.
I find this argument without merit. First, the stories of the sixteen claimants, each as assessed, shows quite the opposite; they did employ their volitional powers, within the context of their own unique culture, to make, participate in or concur with the decision to leave China. Second, these youths are at least 16 years of age, except four, who are 15 years of age. Many of them had already entered the workforce, sometimes going out of province. Clearly, they are already at an age of responsibility and do not lack the willpower to fashion their own future. Third, I find it difficult to accept the credibility of testimony, almost without exception, from claimant to claimant, that they were told just a day or two beforehand that they would be leaving China. I find there is no plausible reason why such secrecy might be applied so consistently across varied households that had no apparent connection with each other. It is likely contrived collective evidence. Fourth, while the concept of filial piety may be ingrained in China, there is no indication from the claimants' testimonials that it has affected them in a persecutory way. Fifth, I am concerned that claimants' counsel unwittingly incorporate the western value of individual volition as a yardstick to, in turn, pronounce apparent requirements of filial piety to be persecutory, if it has meant that each minor claimant has (unwillingly, though blindly) left China and now risks legal sanctions for his illegal exit. That is, the argument is superficial. Ironically, though this is undoubtedly unintentional, it tends to debase Chinese cultural concepts. Sixth, counsel's argument for the non-volitional implications of filial piety begs the question whether the concept is itself persecutory. The difficulty of this postulate is its implied judgment of Chinese culture and civilization in history, and needs no further comment.
(Applicants' record, p. 37-38; reasons pp. 28-29)
Nexus to Grounds - Social Group
[35] To fall within the definition of a "Convention refugee" under subsection 2(1) of the Immigration Act, a claimant must establish that his or her fear is because of one of the enumerated grounds.
[36] The Supreme Court of Canada in Ward defines three categories of groups of which a claimant may be a member in a particular social group and therefore base a claim to refugee status:
a. groups defined by an innate or unchangeable characteristic;
b. groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association; and
c. groups associated by a former voluntary status, unalterable due to its historical permanence.
[37] In developing these categories, the Court rejected a broad definition of particular social group comprising basically any alliance of individuals with a common objective or an interpretation which characterizes a social, group merely by virtue of their common victimization as the objects of persecution.
[38] The primary reason that the tribunal held that applicants were not Convention refugees was that there was no nexus between their fear of persecution and an enumerated ground under the refugee definition. This finding was reasonably open to the tribunal.
[39] It is the intent of the persecutor which is relevant in determining whether the harm which an individual fears is related to a Convention ground. Here, the alleged persecutors are the snakeheads who smuggle or traffic people from China to other countries, or the parents of the applicants who arranged for the applicants to travel to Canada. There was no evidence before the tribunal that the snakeheads or the applicants' parents smuggled or trafficked the applicants because their status as minors from Fujian province, or because any other Convention ground. There was clear evidence that the snakeheads smuggled or trafficked the applicants for profit. There was evidence that the parents who knew of the applicants' intentions to travel to Canada were equally motivated by financial reasons. Therefore, there was no nexus between the harm feared by the applicants and an enumerated ground of persecution under the Convention refugee definition.
[40] The applicants argue that the tribunal misconstrued the meaning of particular social group or failed to consider their argument that minors from Fujian are a particular social group. The respondent submits that the nature of the error if any is not apparent. The applicants state that the tribunal should have spent more time addressing the argument. The respondent submits that the tribunal considered all the evidence adduced at the hearing and did not accept the argument that minors from Fujian are a particular social group.
[41] The tribunal specifically considered the applicants' argument that the statutory definition of a Convention refugee should be interpreted with regard to international conventions regarding the rights of children. However, it concluded that the applicants were not persecuted. The tribunal did not commit a reviewable error in reaching this conclusion.
[42] The applicants also argue that the tribunal confused particular social group with aspects of persecution when it stated that the applicants had consented to their carriage to Canada. The respondent submits that the issue of consent was of central importance to whether minors from the Fujian province consist a particular social group. The intent of the alleged persecutors is key, and here, the intent was profit. When the tribunal determined that all the applicants had voluntarily exited China, the intent of the parents was irrelevant to the issue of a particular social group.
[43] Furthermore, the respondent submits that the argument that the parents are the agents of persecution is unreasonable because it provides parents who willingly send their children out of China with guaranteed access to Canada. There is no evidence to show that filial piety alone compelled their departure.
[44] Moreover, the focus of the inquiry into the definition of Convention refugee is to establish whether the claimant's fear is well-founded. The state's inability to protect its citizens is an integral component of the notion of Convention refugee, which should be considered in determining the well-foundedness of the claim. The narrowly-defined notion of state complicity in persecution is no longer a pre-requisite to a valid refugee claim.
State Protection
[45] Having failed to establish that they were a particular social group because real or perceived political opinion, the applicants could only succeed if they could establish that the Chinese government was unwilling or unable to protect them from snakeheads. However, the applicants could succeed in this regard only if the Chinese government adopted such a stance because one of the grounds of persecution set out in the definition. The respondent submits there is no indication in the applicants' record that evidence was adduced regarding the inability or unwillingness of the Chinese government to protect the applicants because of a Convention ground, and the applicants have not raised such an argument in their memorandum of argument.
[46] The Supreme Court of Canada set out the principles of law with respect to the issue of state protection in Ward. These principles are:
1. State complicity in the persecution of a claimant is irrelevant to whether the claimant is "unwilling" or "unable"to avail him-or herself of the protection of his or her country of nationality;
2. A state's inability to protect is, however, a crucial element in determining whether the claimant's fear is well-founded, and thereby the objective reasonableness of his or her unwillingness to seek the protection of his or her country of nationality.
3. The claimant does not have to seek the protection of the state when he is claiming under the "unwilling" branch in cases where the state is unable to protect. Only in situations in which state protection "might reasonably have been forthcoming" will the claimant's failure to approach the state for protection defeat his claim.
4. Practically speaking, however, where a state does not admit to its inability to protect, clear and convincing confirmation of a state's inability to protect must be provided by a claimant. Security of nationals is, after all, the essence of sovereignty. Absent a situation of complete breakdown of state apparatus, it should be assumed that the state is capable of protecting a claimant.
[47] Absent a situation of complete breakdown of state apparatus, it is generally presumed that a state is able to protect a claimant. This presumption "serves to reinforce the underlying rationale of international protection as a surrogate, coming into play where no alternative remains to the claimant". A claimant must provide clear and convincing confirmation of the state's inability to protect. (Ward: p. 724)
[48] Accordingly, the tribunal's finding that no nexus existed between the harm feared by the applicants and an enumerated ground of persecution was reasonable.
Persecution
[49] This Court has defined persecution as "an affliction of repeated acts of cruelty or a particular course or period of systematic infliction of punishment." (Rajudeen v. M.E.I. (1984), 55 N.R. 129 at 133. (F.C.A.). The tribunal correctly applied the definition when it noted:
... 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 these young claimants.
(Applicants' record, pp. 15-16; reasons, pp. 6 & 7)
[50] The applicants argue that the tribunal did not employ the approach suggested by the Refugee Board's Chairperson's Guidelines on Child Refugee Claimants for defining harm. The applicants further argue that the tribunal did not meaningfully examine the provisions of the Convention on the Rights of the Child and that the tribunal does not refer to other international instruments which the applicants cited. The respondent submits these arguments are without merit. The applicants are arguing that the tribunal ignored evidence. The respondent submits that there is nothing in the record to substantiate this assertion. The tribunal was under no obligation to make specific reference to particular pieces of evidence.(Hassan v. M.E.I. (1992), 147 N.R. 317 (F.C.A.); Woolaston v. M.E.I. [1973] S.C.R. 102.)
[51] The issue in a judicial review is whether the inferences and conclusions of the tribunal are reasonably open to it on the record. The applicants must demonstrate that no reasonable person could, from the evidence before the tribunal, have arrived at that finding. This Court should not interfere with the decision of the tribunal merely because it would have exercised its discretion in a different manner. But this Court finds that the tribunal decided correctly.
[52] The respondent submits that the tribunal's conclusions were reached having regard to the objective documentary evidence and the facts before it. Credibility and weight of evidence are for the tribunal to determine and are not properly the subject of judicial review. The respondent submits that the tribunal was entitled to weigh the evidence and to draw its conclusions.
[53] The respondent submits that one of the principles from Baker is that the failure to give consideration to the interests of the child constitutes an unreasonable exercise of discretion. However, the tribunal did consider their interests in light of international conventions respecting children. It surely did give consideration to the applicants' best interests.
[54] The applicants also argue that the tribunal erred by failing to agree with their submissions that persecution would result from trafficking. The applicants acknowledge that the tribunal addressed the argument, but suggest that the tribunal was required to spend a greater number of paragraphs discussing it. The respondent submits that there is no requirement for a tribunal to spend a specific number of paragraphs on an issue.
Procedural Fairness
[55] The applicants argue that the tribunal breached the principles of procedural fairness by failing to deal meaningfully with the applicants' principal argument or the evidence adduced to support it. The applicants cite evidence which was allegedly ignored by the tribunal, and argue that this necessarily led the tribunal to deny the applicants procedural fairness. The applicants take issue with the weight assigned to the evidence by the tribunal. The respondent submits that weight of evidence is not a proper ground for judicial review. The applicants have not established that the tribunal ignored any of the evidence merely because it did not advert to all of the evidence in its reasons.
Summary
[56] At a C.R.D.D. hearing , the onus is on the applicants to provide clear and
convincing proof of the well-foundedness of their claim to refugee status. The respondent submits the applicants did not adduce sufficient evidence to establish a well-founded fear of persecution. This finding was reasonably open to the tribunal based on all the evidence before it, and does not constitute an error of law.
6. Remedies
[57] The applicants seek the following relief:
a. An order setting aside the decision of the tribunal; and
b. A declaration that the applicants are Convention refugees as defined by the Immigration Act or, alternatively, an order referring the matter back to a differently constituted tribunal for reconsideration in accordance with such directions as this Court deems to be appropriate.
[58] The respondent requests that this application for judicial review be dismissed, as it will be, and is dismissed.
[59] The applicants' counsel proposed two questions for certification pursuant to sub-section 83.(1) of the Act. Such a query in order to be certified must be a serious question of general importance involved in any matter in the case. Both questions are too general and depend on certain facts being established. Such facts were established in the case heard by the tribunal herein. Therefore the Court declines, or to express it in statutory prose - refuses - to certify any question herein.
THIS COURT ORDERS
THAT the applicants' sixteen applications for leave and judicial review commenced by the applicants on May 26, 2000, in docket numbers:
| V99-02955 |
LONG WEI ZHU |
|
| V99-02956 |
FU LIN |
|
| V99-02953 |
FU SHENG BIAN |
|
| V99-02914 |
FU ZHEN BIAN |
|
| V99-02933 |
ZENG TIAN TIAN |
|
| V99-02912 |
MING ZHOU |
|
| V99-02951 |
JIN FU LIN |
|
| V99-02913 |
||
| JIANG YONG YANV99-02949 |
PENG LIN |
|
| V99-02923 |
RUE CHU LIN |
|
| V99-02961 |
XING WEI OU |
|
| V99-02960 |
ZI GUANG WANG |
|
| V99-02927 |
HUI ZHANG |
|
| V99-02931 |
FA FU SUN |
|
| V99-02919 |
CAI YANG LI |
|
| V99-02928 |
SUN PING JIAN |
|
be and they are all dismissed, and no question is certified.
Judge