Date: 20040804
Docket: IMM-9624-03
Citation: 2004 FC 1059
Ottawa, Ontario, this 4th day of August 2004
Present: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
RI WANG ZHAO
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] This is an application for a judicial review of the decision of Fred Hitchcock of the Refugee Protection Division of the Immigration and Refugee Board (the Board) dated November 14, 2003, in which it was decided that the Applicant was not a Convention refugee nor a "person in need of protection" pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act).
BACKGROUND
[2] The Applicant, Mr. Ri Wang Zhao, is a citizen of the People's Republic of China. He is married and has two children. His wife and children live in Taishan, China.
[3] The Applicant and his wife had their first child on June 28, 1988. In 1990 and 1992, his wife was forced to have abortions by the birth control office in Taishan. She was then told that if she became pregnant again, she would be forced to have another abortion and she would also be sterilized. In March 1993, family planning officials came to the Applicant's home and accused his wife of not wearing her IUD. He lost his job as a consequence. The Applicant was not able to find work in Taishan and was forced to move alone to Jiang Men City.
[4] In February 1995, his wife became pregnant again. That June, she went into hiding. At that time, the Applicant was laid off because the head of the company where he worked found out he had violated family planning regulations in Taishan. He subsequently started looking for an agent in order to leave China. He moved to São Paulo, Brazil, in 1995. Their son was born on November 21, 1995.
[5] On January 10, 2001, the Applicant returned to China to visit his wife and children in Jiang Men City. He stayed there with his wife and children, living on savings he had accumulated. He returned to Brazil five months later on May 15, 2001. The Applicant states that he was only in China temporarily because he missed his family and fully intended on returning to Brazil.
[6] The Applicant has had permanent resident status in Brazil since 1998. His permanent resident visa expires on September 18, 2011, and he states he would have no problem having it reissued after its expiry. In August 1998, he entered into a partnership to run a restaurant in São Paulo.
[7] The Applicant states that in September 1997, he was mugged and robbed by a gang while walking in São Paulo with a friend. One of the gang members shot his friend in the arm. When the police came, they demanded the rest of their money before they would take a report. Four members of that gang were arrested, tried, convicted and incarcerated. The Applicant was a witness at their trial on January 14, 2003. After the trial, he returned to work and two gang members came into the restaurant and set it on fire. The police came and took money that was at the bottom of the cash register. A week later, on January 20, 2003, the Applicant began to receive calls at his home from the men responsible for the fire. They wanted $50,000 US compensation from him for helping convict their fellow gang members. They also threatened to kill him if he did not comply. The Applicant arranged for his partner to take over the restaurant and went into hiding. Five days after he arrived in Canada, he learned that some people had come to the restaurant looking for him and said that if they saw him, they would kill him.
[8] The Applicant came to Canada on March 4, 2003, and made his refugee claim on May 13, 2003. He claims to have a well-founded fear of persecution by reason of his perceived political opinion regarding China's one-child-policy. In addition, he claims to have a well-founded fear of persecution in Brazil due to his membership in a particular social group, businessmen targeted by organized crime and corrupt police officials. He also claims to be a person in need of protection in Brazil because he would be subjected to a risk to his life or to cruel and unusual treatment or punishment if he were to return.
[9] The Applicant submits that if he returned to China, either he or his wife would be sterilized. The Applicant also submits that he would not be safe from family planning officials whether he returned to Taishan or Jiang Men City and that he has no internal flight alternative (IFA).
THE BOARD'S DECISION
[10] Though the Board found the Applicant to be credible, it concluded that he was neither a Convention refugee nor a person in need of protection. It found that the Applicant did not have a well-founded fear of persecution in China since he had intentionally re-availed himself of the protection of the Chinese state for five months in 2001 despite knowing the potential risk of forced sterilization upon his return. Moreover, the Board found that Jiang Men City was an IFA based on the fact that during his visit, the Applicant was not contacted or harassed by birth control officials. The Board also took into account the fact that the Applicant was able to enter and leave China without any difficulties.
[11] Furthermore, the Board decided that the Applicant did not have a well-founded fear of persecution in Brazil, nor was he a person in need of protection. The Board concluded that there was a general fear of criminality faced by all people in Brazil and that there was therefore no nexus between his fear of persecution and any one of the five grounds of the definition of Convention refugee under the Act. The Board noted that when he was attacked, the police did respond. Furthermore, the Board was not convinced that the gang members would try to find the Applicant if he moved to another part of Brazil concluding that the Applicant could find an IFA within Brazil.
[12] The Board also concluded that his removal to Brazil would not subject the Applicant to a risk to his life or to a risk of cruel and unusual punishment or to torture. He faces the same risk as every other Brazilian resident.
ISSUES
[13] The Applicant raises four issues on judicial review:
A. Did the Board err in finding that the Applicant lacked a subjective fear of returning to China?
B. Did the Board err in finding that the Applicant had an IFA in China?
C. Did the Board err in finding that the Applicant does not have a well-founded fear of persecution upon returning to Brazil because he can avail himself of state protection?
D. Did the Board err by failing to consider both the section 96 and section 97 claims made by the Applicant individually?
STANDARD OF REVIEW
[14] Findings of fact can only be reviewed if they are erroneous and made in a perverse or capricious manner (Harb v. Canada (Minister of Citizenship and Immigration) (2003), 302 N.R. 178 (F.C.A.)) The applicable standard of review to findings of fact made by the Board relating to the issue of state protection is that of patent unreasonableness (Nawaz v. Canada (Minister of Citizenship and Immigration), 2003 F.C. 1255. In respect to the Board's decisions relating to the possibility for a claimant to avail himself of an IFA, the standard of review is whether it was patently unreasonsable for the panel to conclude that it was reasonable, on a balance of probabilities, for the claimant to avail himself to an IFA. (Ramachanthran v. Canada (Minister of Citizenship and Immigration) 2003 FCT 673, Chorney v. Canada (Minister of Citizenship and Immigration), 2003 FC 999.)
ANALYSIS
A. Did the Board err in finding that the Applicant lacked a subjective fear of returning to China?
[15] The Applicant, relying on M.B.K. v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 374 (Q.L.) (F.C.T.D.), submits that the Board erred in its finding that the Applicant lacked a subjective fear of returning to China. The Applicant claims that, despite its positive finding of credibility, the Board disregarded or ignored the reasons he gave for returning to China, misapprehended the evidence relating to his behaviour while in China, ignored the fact that he had not lost his fear of persecution and the fact that he did not re-avail himself of China's protection. The Board found that the Applicant gave credible testimony. He had stated that he feared returning to China on a permanent basis because he or his wife would be forced to undergo sterilization. Moreover, the Applicant testified that when he did return to China, it was only for a few months to see his family. He had no intention of staying and had bought a return ticket to Brazil. The Applicant also testified that he had intended on taking steps to move his wife and children to Brazil but had changed his mind in 2002, after the incidents with the gang in São Paulo.
[16] The Respondent submits that the Board made a reasonable finding that the Applicant had re-availed himself of the protection of China and that this indicates a lack of a subjective fear of persecution.
[17] I am of the view that on the totality of the evidence the Board's finding was reasonably open to it. The Applicant did return to China without difficulty and remained there for five months without incident. He also departed China without difficulty. The Board's finding that the Applicant's circumstances in respect of his return trip to China are not consistent with a person fearing persecution in China, was not unreasonable.
B. Did the Board err in finding that the Applicant had an IFA if he returned to China?
[18] The Applicant submits that the Board erred in finding that he had an IFA in Jiang Men City. He submits that the Board did not provide clear reasons, nor even any comment for rejecting the documentary evidence demonstrating a lack of IFA in Jiang Men City. Further, he submits that the Board erred by only considering the Applicant's visit to China when he stayed in Jiang Men City for five months as a basis for determining that he had an IFA. The Applicant argues that the Board misapprehended an official notice from the government indicating that upon his return sterilization would be necessary. According to the Applicant, the Board also failed to consider the long-term risk of sterilization he would suffer, as illustrated by his testimony to the effect that he believed that the longer he stayed in China, the higher the risk that he would be forced to undergo sterilization. Finally, the Applicant submits that if he were to return to Jiang Men City, he would have to apply for a residence permit, which would inform the authorities of his whereabouts. The Applicant submits that the IFA is not reasonable since he cannot legally live in that area.
[19] The Respondent submits that the Applicant did not meet the onus of showing that, on the balance of probabilities, there was a serious possibility of persecution throughout all of China (Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (F.C.A.)). The Respondent submits that it was reasonable for the Board to find that Jiang Men City was an IFA for the Applicant and that it had considered all the testimony and documentary evidence before coming to its conclusion, including the fact that the Applicant had not been harassed by birth control officials while he was in Jiang Men City.
[20] I find that the Board's conclusion that the Applicant had a reasonable IFA in Jiang Men City was not patently unreasonsable on the evidence. The Applicant did return to China and then left without any problems from authorities. He remained there for five months without incident. Moreover, the document entitled "Undertaking re 'Application for deferment of Ligation'" submitted by the Applicant does not state that he would be sterilized directly upon his return to China. It states that if his wife becomes pregnant again, she will have to undergo an abortion and a ligation operation. During the hearing, the Applicant stated that he and his wife would not consider having any more children. A review of the evidence leads me to conclude that the Board's interpretation of the document and its conclusion are not patently unreasonable.
C. Did the Board err in finding that the Applicant does not have a well-founded fear of persecution upon returning to Brazil because he can avail himself of state protection?
[21] The Applicant submits that the Board erred in determining that state protection was available to him simply because four of the twelve gang members who had attacked him had been convicted. The Applicant further submits that the Board failed to consider evidence that indicated that the police were not providing effective protection against the rest of the gang members. The Applicant also submits that the Board erred in characterizing his fear as that of a generalized fear of being a victim of criminality and states that Chinese citizens especially have reason to fear being victims of criminality in Brazil.
[22] The Respondent submits that the Board made a reasonable finding relating to the issue of state protection in Brazil. According to the Respondent, the Applicant failed to provide clear and convincing evidence of the absence of state protection and was therefore unable to rebut the presumption that state protection was available to him. Moreover, the Respondent submits that the Board found that the Applicant was not at personal risk of harm throughout the whole of Brazil and that he therefore had a valid IFA in Brazil.
[23] The onus is on the Applicant to show with clear and convincing evidence that state protection was not afforded to him (Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689). Rebutting the presumption of the availability of state protection is not an easy task. The Board considered the documentary evidence pertaining to Brazil's problems with respect to state protection and found that the evidence was not sufficient to displace the presumption of availability of state protection. Indeed, state protection need not be perfect, and in the case at bar, Brazilian police responded to the Applicant's calls and was even able to capture and convict four of the criminals who had attacked the Applicant and his friend. On this evidence, the Board found that the Applicant had not displaced the presumption of availability of state protection. In my view, this conclusion was not patently unreasonable.
[24] Moreover, the Board found that the gang members who had targeted the Applicant would not follow him outside of São Paulo. This finding of an IFA available to the Applicant within Brazil was not disputed by the Applicant.
[25] Finally, the Board's findings that the Applicant risks no more from the criminal element than does any other resident of Brazil, and that he had not demonstrated that he was being persecuted for a Convention ground, were reasonably open to the Board on the evidence.
D. Did the Board err by failing to consider both the section 96 and section 97 claims made by the Applicant individually?
[26] The Applicant submits that the Board failed to give adequate reasons for rejecting his claim based on section 97 of the Act and should have given its reasons separately from those rejecting his section 96 claim. The Applicant submits that the analysis of a section 97 claim as a person in need of protection should not be "piggy-backed" on the Board's analysis of his section 96 claim.
[27] The Respondent submits that the Board carefully considered both the Applicant's claims and gave an extensive analysis of the evidence provided by the Applicant and the documentary evidence before it, which was relevant to its conclusions relating to both claims.
[28] In my opinion, it is clear from the analysis that the Board considered both whether the Applicant was a Convention refugee and whether the Applicant was a "person in need of protection". The Board's conclusions relating to state protection and the Applicant's IFA in Brazil resulted in his claim as a Convention refugee being rejected. The Board then considered the evidence to determine that the Applicant did not meet the definition of a "person in need of protection" because it had found that upon his return to Brazil, the risk he would face from the criminal element would be the same as that of every other resident of Brazil.
CONCLUSION
[29] The Board did not commit a reviewable error in concluding that the Applicant was not a Convention refugee nor "a person in need of protection" pursuant to sections 96 and 97 of the Act. For the reasons set out above, the application for judicial review will be dismissed.
[30] The parties have been given the opportunity to raise a serious question of general importance as contemplated by section 74(d) of the Immigration and Refugee Protection Act, S.C. 2001, Chapter 27, and have not done so. I do not propose to certify a serious question of general importance.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is dismissed.
2. No question of general importance is certified.
"Edmond P. Blanchard"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-9624-03
STYLE OF CAUSE: RI WANG ZHAO v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: July 6, 2004
REASONS FOR ORDER AND ORDER: BLANCHARD J.
DATED: August 4, 2004
APPEARANCES:
Iven K. S. Tse FOR APPLICANT
Sandra Weafer FOR RESPONDENT
SOLICITORS OF RECORD:
Iven K.S. Tse FOR APPLICANT
Barrister & Solicitor
Vancouver, BC
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Ottawa, ON
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