CITIZENSHIP AND IMMIGRATION |
Status in Canada |
Convention Refugees |
Canada (Minister of Citizenship and Immigration) v. Li
IMM-2893-00
2001 FCT 374, Simpson J.
23/4/01
8 pp.
Judicial review of IRB's decision respondents Convention refugees--Respondents citizens of People's Republic of China, from Fujian province--Smuggled out of China illegally--Arriving in British Columbia by boat in 1999--Minors when boat arrived--Not accompanied by adult family member--If returned to China would be subject to fines, imprisonment for illegal exit from China--Fearing beatings by Chinese authorities, indefinite incarceration because families unable to pay fines--Of 24 similar refugee claims, respondents only two saying sent to Canada against their will--Board's only mention of respondents' social group that basis of claim that having well-founded fear of persecution due to membership in particular social group i.e. minor children sent from China into servitude and who fear incarceration upon return due to illegal exit--Holding respondents' parents agents of persecution because forced sons into situations of systemic hardship--Also concluding respondents could not avail themselves of state protection because law in China often relegated punishment of minors to family unit--Moreover numerous state officials involved in human smuggling--Rejecting possibility of internal flight alternative, noting respondents would have little opportunity to relocate if turned over to Chinese authorities and then released into custodies of families on payment of fine--Applicant submitting Board erred in defining social group in terms of persecution suffered by respondents--Leading case on meaning of particular social group Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 indicating social groups should not be identified to include victims of persecution--Respondents submitted Board's mention of social group describing respondents' entire refugee claim, not defining relevant social group; noting respondents' proposed social group before Board "unaccompanied minor PRC claimants" and as no discussion before Board about appropriate social group, no reason to think Board rejected that definition--Board's language indicating chose to define relevant social group differently than manner suggested by respondents--Board erred--Social group improperly defined--Application allowed--As respondents nearing age 18, and as definition of Convention refugee prospective, assessment of respondents' refugee claims, issues of state protection, IFA must be made with understanding of what, if anything, ages will mean if return to China--Board will need information about existence, meaning of age of majority in China before can adequately address respondents' claims.