Court/Judicial body: Immigration and Refugee Board, Refugee Protection Division (the “Board”)
Date: March 12, 2003 CRC
Provisions: Article 28: Education
Domestic provisions:Immigration and Refugee Protection Act, Canada (the “Act”)
Background: Mrs. X, a 37 year old Chinese citizen and her two sons, ages 13 and 15, sought protection as refugees under Canada’s Immigration and Refugee Protection Act, claiming that they have well-founded fears of persecution in China. Specifically, Mrs. X feared that she would be arrested and detained by the Chinese authorities and that her sons would be deprived of an education because of her husband’s political activities. Mrs. X’s husband was in jail in China for protesting against the expropriation of their family home, which the Chinese government demolished in 2001, without fair compensation. Mrs. X’s two children had been suspended from state school since their father was sentenced to jail and it was uncertain whether they would ever be allowed to return.
Issue and resolution: Right to education and refugee status. The Board determined that although Mrs. X was not eligible for refugee protection, her two sons were eligible based on their continued suspension from school in China.
Court reasoning: Section 3(3) of the Immigration and Refugee Protection Act says that the Act must be applied in a manner that complies with the international human rights instruments to which Canada is a signatory, including the CRC. Noting that Article 28 of the CRC recognizes that children have a right to education, and that it is the State’s duty to ensure that primary education is free and compulsory, the Board found that the extended suspension of Mrs. X’s two children from school was inconsistent with the principles of the CRC, resulted in serious harm to the children and constituted persecution for purposes of the Act.
Excerpt citing CRC and other relevant human rights I find the two minor claimants have been persecuted based on their suspension from school, and the requirements of the [Immigration and Refugee Protection Act, Canada (the “Act”)] and the provisions of the Convention on the Rights of the Child. Persecution is not defined in the Act but is interpreted to mean “serious harm”. This requires an analysis of the interest harmed and the extent to which the exercise of that interest has been compromised. Section 3(3) of the Immigration and Refugee Protection Act says the Act is to be construed and applied in a manner that complies with international human rights instruments to which Canada is a signatory. In Baker [v. Canada (Minister of Citizenship and Immigration)],the Supreme Court of Canada commented on the use of international instruments in the interpretation of Canadian law and noted that Canada has ratified the Convention on the Rights of the Child although it has not been implemented. Article 28 of the Convention on the Rights of the Child states that “States Parties recognize the right of the child to education, with a view to achieving this progressively and on the basis of equal opportunity…”. It further provides States Parties shall “Make primary education compulsory and available free to all;” … and shall “Take measures to encourage regular attendance at schools and the reduction of drop-out rates.” I find the extended suspension of these two children from their school and the uncertainty about whether they will be able to return to school are inconsistent with the principles set out in the Convention on the Rights of the Child, and have resulted in serious and sustained harm to these children. These children were denied primary education in China, through no fault of their own. I find this fundamentally affected their education, which is essential to the development and well-being of a child. This was done by state school authorities. It was based on the children’s relationship to their father. While it is speculative as to whether or not their father will soon be released and, if he is released, whether these children will be able to return to school, I am satisfied there is more than a mere possibility these children will face persecution through a denial of their education based on their membership in a particular social group if they return to China.
Follow up:Whether a particular harm constitutes persecution for purposes of the Act depends upon the facts of the individual case. Nevertheless, here are some of the more instructive observations that emerge from Canada’s case law supporting the finding in X (Re) that the denial of education may constitute persecution under the Act: A child who would experience hardships including deprivation of medical care, education opportunities, employment opportunities and food would suffer concerted and severe discrimination, amounting to persecution under the Act (See Cheung v. Canada (Minister of Employment and Immigration),  2 F.C. 314 (C.A.), at 324-5). Education is a basic human right and a nine-year-old claimant who could have avoided persecution only by refusing to go to school was deemed to be a Convention refugee (See Ali v. Canada (Minister of Citizenship and Immigration) (1996), 36 Imm. L.R. (2d) 34 (F.C.T.D.)). It is not an act of persecution under the Act to ban certain groups of children from attending public schools, if they are permitted to have their own schools (See Thathaal, Sabir Hussain v. S.S.C. (F.C.T.D., no. A-1644-92), McKeown, December 15, 1993, at 2. Appeal to the Federal Court of Appeal dismissed April 16, 1996 (F.C.A., no. A-724-93)).
Notes: The Board determined that Mrs. X’s children should be granted refugee protection because they were “Convention refugees” under the Act. This term is defined under the Act as, “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 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”. For a summary of Canadian case law interpreting the definition of “Convention refugee” under the Act, see the following link: http://www.irb.gc.ca/eng/brdcom/references/legjur/rpdspr/def/Pages/index.aspx
CRIN comments: CRIN believes that this decision is somewhat consistent with the CRC. The Board’s recognition of the importance of a child’s right to education as fundamental and its decision to apply Canada’s refugee law in line with the CRC show strong support for the Convention. Nonetheless, the Board’s decision not to recognise the children’s mother as a refugee may result in her removal from the country, thus failing to consider the children’s best interests under Article 3 or their right to maintain regular contact with their parents under Article 9.
Citation:X (Re), 2003 CanLII 55292 (I.R.B.).
Link to full judgement: http://www.canlii.org/en/ca/irb/doc/2003/2003canlii55292/2003canlii55292.html