Digests

Chen v. Canada (Minister of Citizenship and Immigration)

IMM-478-03

2003 FC 1059, Gibson J.

12/9/03

10 pp.

Judicial review of decision of Immigration and Refugee Board Refugee Protection Division (RPD) wherein determined applicant not Convention refugee and further determined that its finding, in applicant's particular circumstances, does not give rise to violation of Charter, s. 15 --Whether Board erred in assessment of applicant being trafficked as minor, forced into slave-like relationship with father's creditor in People's Republic of China and whether this places applicant within context of particular social group--In Canada (Minister of Citizenship and Immigration) v. Lin (2001), 17 Imm. L.R. (3d) 133 (F.C.A.), Court of Appeal had before it two certified questions, of which only following question relevant: whether RPD erred in finding minor claimant had well-founded fear of persecution on grounds he was member of particular social group being "minor child of Chinese family who is expected to provide support for other family members"--Court of Appeal therein answered in affirmative--Facts, in broadest sense, indistinguishable from facts of this matter--Feared agents of persecution in Lin do not appear to have included people smugglers who arranged for applicant to come to Canada--On facts of this matter, people smugglers who facilitated applicant's arrival in Canada said to be potential persecutors of applicant since, it is assumed, the debt applicant's father undertook to them to arrange smuggling likely fallen into arrears--Answer is that, as in Lin case, evidence before Court and that was before RPD simply did not support applicant's fear of persecution beyond level of pure speculation--RPD made no reviewable error in determining applicant not member of any particular social group within scope of term as used in definition of "Convention refugee"--Whether Board erred in its Charter analysis--Analysis conducted by RPD on issue of underinclusiveness of definition "Convention refugee" with respect to "particular social group" with result definition offending Charter, s. 15, brief, almost to fault--Preferable to read definition "Convention refugee" in conformity with Charter, s. 15(1)--To do so does not mandate interpretation of "particular social group" such that, in words of RPD, all "persons who face serious threats to their human dignity and core human rights" would be "Convention Refugees"--In conclusion, open to RPD to conclude applicant had not discharged onus on him and in so concluding chose to interpret definition "Convention refugee" and more particularly, expression "particular social group" within definition in manner such that definition not underinclusive when read against s. 15(1) of Charter--Judicial review dismissed--Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act 1982, Schedule B, Canada Act, 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 15.