Lu v. Canada (Minister of Citizenship and Immigration)

Lu v. Canada (Minister of Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2004-10-27
Neutral citation
2004 FC 1517
File numbers
IMM-285-04
Notes
Digest
Decision Content
Date: 20041027
Docket: IMM-285-04
Citation: 2004 FC 1517
Toronto, Ontario, October 27th, 2004
Present: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
JIE PING LU (AKA JIEPING LU)
KATHY JIN YAN LIU (A.K.A. KATHY JIMG YAN LIU
CARMEN JIAMING LIU
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] On November 25, 2003, the Refugee Protection Division of the Immigration and Refugee Board (RPD), after three sittings, determined that the applicants Jie Ping Lu, Kathy Jing Yan Liu and Carmen Jiaming Liu are not Convention refugees or persons in need of protection. The claims were rejected on the basis that they were not credible.
[2] Jie Ping Lu, whom I will refer to as the applicant, is a Chinese citizen who became a permanent resident of Peru in 1993. She married in Peru and had two daughters, Kathy (born in 1996) and Carmen (born in 1997). The children are citizens of Peru. Since 1995, the applicant and her husband owned and operated a restaurant.
[3] The refugee claims were based on a fear of persecution in Peru because of Chinese ethnicity. The applicant stated that the restaurant was robbed regularly and that the police did nothing but make reports. The frequency of the robberies increased and, at one point in front of the children, robbers knocked out the teeth of the applicant's husband. The applicant and her children left Peru in May, 2001. They travelled to the United States and, from there, were smuggled into Canada.
[4] The applicant also alleged that return to China is not an option because she has not complied with China's Family Planning Policy. She claimed that she will face heavy fines that will lead to a jail sentence and forced sterilization if she cannot pay.
[5] No issue is taken regarding the credibility findings. The only argument advanced by the applicants is that the children were prejudiced when the RPD refused to grant them a separate hearing and separate representation. They claim that, because they all shared the same representation, counsel was restricted in his "advocacy manoeuverability" for the children. Counsel had requested severance. Through no fault of the children the negative credibility findings with respect to the applicant were visited upon them and they were therefore prejudiced.
[6] Simply put, the applicants' arguments boil down to an allegation that the children did not receive a fair hearing of their claims because of insufficient attention to the fact that persecution and prejudice would affect them differently than it would affect their mother. It is said that this ought to have been corrected by a separate hearing and separate representation.
[7] I need not determine the applicable standard of review for I have decided that regardless of the standard, the application must fail.
[8] Rule 49(1) of the Refugee Protection Division Rules, SOR/2002-228 requires the RPD to join the claim of a claimant to a claim made by the claimant's child.. Rule 50(2) permits a party to apply to the RPD to separate claims that were joined under rule 49(1). In making its determination, the RPD must take the various factors contained in Rule 50(5) into account, specifically whether the claims involve similar questions of fact, whether the interests of efficient administration would be advanced by severance, and whether an injustice would result.
[9] Here, the applicant swore that her personal information form (PIF) and the PIF's of her daughters were "true and accurate". The applicant's PIF contained a narrative; the daughters' PIF's did not. No independent basis was provided with respect to the children's claims. It would not have been logical to separate claims based on the same underlying facts. While the applicants now argue that their claims do not have the same factual underpinning, there is no evidentiary basis to suggest, let alone support, that the alleged persecution and prejudice in Peru was in any way different in relation to the children. There is nothing in the record to suggest a factual situation different than that offered by the applicant. Given that the claims of the daughters and the claim of the mother were based on the same facts, no injustice was likely to be caused by hearing the claims together. Thus, the RPD was correct to determine that the claims should not be separated.
[10] Regarding the allegation of representation, the applicant was appointed - with the agreement of counsel - as the designated representative of the children (Tribunal Record, pp. 83, 256, 257, 264).
[11] The RPD did not believe the applicant's story. No challenge has been taken in that regard. The daughters' claims were based on the same factual basis as the applicant's claim. The applicants have failed to demonstrate any error or any prejudice in the joinder of the claims.
[12] Counsel did not suggest a question for certification and none arises from these facts.
ORDER
THIS COURT ORDERS THAT the application for judicial review is dismissed.
"Carolyn Layden-Stevenson"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-285-04
STYLE OF CAUSE: JIE PING LU (AKA JIEPING LU)
KATHY JIN YAN LIU (A.K.A. KATHY JIMG YAN LIU CARMEN JIAMING LIU
Applicants
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: OCTOBER 27, 2004
PLACE OF HEARING: TORONTO, ONTARIO.
REASONS FOR ORDER
AND ORDER BY: LAYDEN-STEVENSON J.
DATED: OCTOBER 27, 2004
APPEARANCES BY:
Steven Kaminker For the Applicant
Allison Phillips For the Respondent
SOLICITORS OF RECORD:
Steven Kaminker
Toronto, Ont. For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada For the Respondent
FEDERAL COURT
Date: 20041027
Docket: IMM-285-04
BETWEEN:
JIE PING LU (AKA JIEPING LU)
KATHY JIN YAN LIU (A.K.A. KATHY JIMG YAN LIU CARMEN JIAMING LIU
Applicants
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
____________________________
REASONS FOR ORDER
AND ORDER
____________________________