Date: 20100813
Docket: IMM-6390-09
Citation: 2010 FC 819
Ottawa, Ontario,
August 13, 2010
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
Qi LIU and
Susana LIU
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review, pursuant to section 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of a decision of
the Refugee Protection Division of the Immigration and Refugee Board (Board).
The Board determined that the applicants were neither Convention refugees nor
persons in need of protection. The determinative issue was the applicants’
failure to rebut the presumption of state protection. For the reasons that
follow, this application must be dismissed.
Background
[2]
Qi Liu is
a citizen of the People’s Republic of China
and a permanent resident in Argentina. His daughter, Susana Liu, was
born in 1994, and is a citizen of Argentina.
The principal applicant alleges that he and his daughter were targeted by
criminal gangs in Argentina because he was a successful
restaurant owner.
[3]
Mr. Liu alleges
that in May 2004 a criminal gang attempted to extort money from him. He went
to the police to report the crime. The police, in turn, filed a report
regarding the incident and began surveillance on his place of business. When
the gang members attended at the business the police arrested, detained, and
charged them. Mr. Liu refused to testify in court because the gang’s leader
threatened him and his family. As a consequence, the criminal charges against
the gang member were dropped.
[4]
Two and
one half years later, in November 2006, the gang returned to Mr. Liu’s business
and again demanded payment of money; this time they also threatened Susana Liu,
then 12, with sexual violence. At the end of November 2006, the gang made an
unsuccessful attempt to kidnap her. The applicants did not report these
incidents to the police.
[5]
After the
last incident in November 2006, Mr. Liu closed his business and sold its
contents, took his daughter out of school, and remained in hiding in their
home. The gang, not knowing the location of the family home, was unable to
find them.
[6]
In April
2007, the applicants came to Canada and filed a claim for refugee
status. On November 25, 2009, the Board rejected their claim. The Board
rejected Mr. Liu’s testimony that his daughter could not live with her mother
in Argentina. The Board determined “that
the minor claimant’s mother would be the caregiver for the minor claimant
should she return back to Argentina.” The applicants alleged
that she could not accompany her father to China because she would be persecuted there because
of her devout Roman Catholic beliefs.
[7]
The Board
then reviewed the jurisprudence on state protection. The Board stated that it
preferred the “claimant’s own experiences in accessing adequate and effective
state protection” over counsel’s submissions that state protection in Argentina was inadequate.
[8]
The Board
reviewed the steps that the police had taken in response to the principal
applicant’s complaint of the incident in 2004. The Board noted that the
principal applicant did not report the gang leader’s threat, did not testify in
the trial, and did not report the further incidents to the police.
[9]
The Board
noted that the gang was unable to find the applicants after the business was
closed, and that the minor applicant left her school. The Board stated that
“[i]t is reasonable to expect that the minor claimant can change schools if
there is a threat and live with her mother and the gang members would never
realize her presence.” The Board found that if the gang did pose a threat to
the minor applicant state protection would be forthcoming.
[10]
The Board
concluded:
...there is not a serious possibility that she would be
persecuted or that she would be subjected personally to a danger of torture or
to a risk to her life or risk of cruel and unusual treatment or punishment
should she return to Argentina.
[11]
The Board
then turned to the claim of the principal applicant. The Board noted that the Mr.
Liu had not alleged persecution in China
and that he had visited there ten years earlier without incident. The Board
determined that there was no persuasive evidence “to show that if the claimant
were to return back to the People’s Republic of China without his daughter, that he would
experience any difficulties.” The Board concluded:
...there is not a serious possibility that he would be persecuted
or that he would be subjected personally to a danger of torture or to a risk to
his life or risk of cruel and unusual treatment or punishment should he return
to the People’s Republic of China.
Issues
[12]
The
applicants raised five issues that require the Court’s attention.
1.
Whether the Board made perverse and capricious
findings without evidence and in disregard to the evidence with respect to the
minor applicant’s ability to reside in Argentina
with her mother;
2.
Whether, in determining effective state
protection, the Board:
i.
misapplied the legal test, and/or
ii.
ignored evidence;
3.
Whether the Board made perverse and capricious
findings without evidence and in disregard to the evidence with respect to Mr.
Liu’s ability to return to China with
or without his daughter;
4.
Whether the RPD breached the applicants’ right
to reasons;
5.
Whether the RPD erred, in law, in failing to
determine, apply, or put its mind to s. 108(4) of the Act, and exceptional
circumstances, with respect to the minor claimant or Mr. Liu.
Analysis
1. The Minor
Claimant’s Ability To Reside In Argentina
[13]
Only the
principal claimant gave evidence. The applicants submit that it was an error
on the part of the Board not to call the minor claimant to give evidence on her
own behalf. I am unable to accept that submission. The Board member indicated
at the commencement of the hearing that he had not affirmed the minor claimant
as he did not expect to be asking her any questions; however, he went on to
state that “if there is a need to ask questions I will affirm her at that
time.” She was provided with an interpreter as she was not proficient in
English. The Board member made it clear to her that if she failed to
understand any of the proceeding she was to advise the Board. He also stated
that “each claim will be decided on its own merits, however, I must advise each
of you that your testimony may affect the others [sic].”
[14]
Mr. Liu
was designated as the representative of his daughter and they had legal counsel
present. In this application the minor claimant swore an affidavit that
affirmed her father’s evidence.
[15]
While
there may be situations where a Board member ought to call a minor claimant, I
cannot see that it was required in these circumstances. She heard the evidence
of her father and affirmed it in this proceeding. If she had anything to add
the onus was on her to advise her representative and lawyer, not on the Board
to guess whether she had anything different to advance. Furthermore, there is
no evidence that her evidence, if called, would have differed from her father’s
testimony.
[16]
The
applicants submit that the Board member’s conclusion that “based on the balance
of probabilities … the minor claimant’s mother would be the caregiver for the
minor claimant should she return back to Argentina” is perverse, not in accord with the
evidence and ignores the evidence. I do not agree.
[17]
The
evidence before the Board was that the daughter preferred not to live with her mother
as she disliked her new husband. She disliked him because he made abusive
comments about her father and preferred his natural children. It is not
reasonable to assert, as she does now, that these actions constitute personal
abuse making it impossible for her to return to Argentina. Further, the only evidence that the mother
might not accept her daughter back, is a statement made by Mr. Liu in
his evidence as follows:
MEMBER: Who could she stay
with if she had to return to Argentina but you could not?
CLAIMANT: Nobody.
However, this statement must
be read in the context of his evidence as a whole and it is clear to me that it
was not intended to encompass her mother but rather the principal claimant’s
relatives as it follows from the question “Do you have any other relations or
relatives in Argentina” to which he says that he does not. More telling is the
fact that he never states that his daughter cannot live with her mother when
asked specifically “If your daughter were to return to Argentina is there any problem with your daughter
living with her mother?” To that question he responds: “Yes, the problem would
be my daughter will not want to go back to live with my ex because she really
does not like the man she is with and she really hated him. And because my
daughter has always been with me.”
[18]
While it
may seem callous, the living arrangements of refugee claimants, even minor
refugee claimants, if returned to their home countries, are not relevant
considerations, absent evidence of persecution, danger of torture, risk to
life, or risk of cruel and unusual treatment or punishment, when making a refugee
determination. In any event, I find that the member’s assessment of her
ability to reside with her mother in Argentina
was reasonable, based on the record. Furthermore, after the Board determined
that the applicants had not rebutted the presumption of state protection in
Argentina there was no need to engage in a further analysis of the minor
applicant’s potential living arrangements were she to return there without her
father.
2. State
Protection
[19]
The
applicants rely on the decision of Justice Barnes in Moonsammy v. Canada
(Minister of Citizenship and Immigration) (5 November 2007), IMM-3327-06
(F.C.), in support of their submission that the Board member erred in examining
only the personal protection offered the applicants by the police rather than by
proceeding to examine the country conditions as a whole to assess whether it
was reasonable for the applicant not to seek protection.
[20]
The
decision in Moonsammy is quite different than that before the Court in
this application. In Moonsammy, although the applicant was rescued from
his kidnappers by the police, there was evidence that there had been “rather
profound lapses in the police response to his kidnapping” and his family had
received no “support or guidance from the police on how to deal with the
kidnappers during ransom negotiations.” Justice Barnes found that the failure
of the Board to look at anything other than the successful conclusion was an
error.
[21]
In this
case, there is no recent evidence that the police had failed the applicants in
any respect. Although there was some evidence that the applicants had been
harassed years earlier by the police, there was no suggestion by the principal
applicant that the police in 2006 had failed him in any respect. Further, the Board
member states that he did examine the documentary evidence regarding state
protection but preferred the applicant’s own evidence. I am unable to find
that was an error as the best evidence of the protection available to the
applicant in his particular circumstances was that which he actually
received. In light of that response by the police, which included charging
and detaining his persecutors, there is nothing that reasonably suggests that
they would not have acted equally effectively had they been made aware of the
threats to the principal applicant’s family.
[22]
The
applicants submit that they would have placed themselves at risk of harm had
they reported these threats to the police and they base this assessment on the
documentary evidence. The Board member is entitled to weigh that evidence
against the facts of the case before him and his conclusion, as long as it is
within the range of reasonable and possible outcomes - which it is – cannot be
upset.
3. China
[23]
I have
found that the Board was reasonable in concluding that the minor applicant
could return to Argentina; accordingly, I need not consider the possible
consequences to her if she goes to China
with her father. Mr. Liu submits that the Board erred in assessing the risk to
him in returning to China. I cannot accept that
submission.
[24]
There is
no question that his parents had suffered under the Cultural Revolution and
that he, as a consequence, was orphaned for some time. Nonetheless, he did not
leave China because of any personal
persecution and the evidence was that he had returned for some two and one half
months some years prior without incident. The Board’s determination, in my
assessment and based on these facts, was reasonable.
4. Right to
Reasons
[25]
Whether
the Board breached procedural fairness by providing inadequate reasons is a
question of law reviewable on the correctness standard. The Board’s
determinative finding, with respect to Argentina, was a failure to rebut the presumption
of state protection. This finding was supported by transparent, intelligible
and sufficient reasons. The reasons explain the Board’s main findings and the
reasons for these findings. In my view, the Board’s reasons were sufficient
and satisfied the duty to give reasons. Similar remarks apply to the Board’s
finding that the principal applicant had not established that he would be at
risk if returned to China and to the alleged risk to
the minor applicant in Argentina. For these reasons, I am in
agreement with the respondent that the reasons provided were sufficient.
5. Compelling
Reasons
[26]
The
applicants submitted in their memorandum that given the threats of sexual
violence against the minor applicant, and the attempted kidnapping, the Board
erred by not considering s. 108(4) of the Act. In oral submission, they
further argued that the Board similarly erred because the father’s
circumstances in China, many years prior, also ought
to have resulted in a s. 108(4) analysis.
[27]
The
applicants cite Canada (Minister of Employment and
Immigration) v. Obstoj,
[1992] 2 F.C. 739 (C.A.) for the proposition that s. 108(4) applies to them.
In Obstoj, the Court of Appeal held that the identical predecessor
subsection to s. 108(4) in the previous Immigration Act applies to
“those who have suffered such appalling persecution that their experience alone
is a compelling reason not to return them, even though they may no longer have
any reason to fear further persecution.”
[28]
In Castillo
Mendoza v. Canada (Citizenship and Immigration), 2010 FC 648 at paras. 27-28,
I held:
Subsection 108(4), and its predecessor section in the Immigration
Act, to which a number of the relevant cases relate, permits the Board to
grant refugee status to individuals who previously qualified as a Convention
refugee or a person in need of protection, and would continue to qualify, but
for the fact that the risk they faced has ceased to exist.
A condition precedent to the application of subsection 108(4) of the
Act is that the claimant would have once qualified as either a Convention
refugee or a person in need of protection. (citations omitted, emphasis
added)
[29]
In this
case, like in Castillo Mendoza, s. 108(4) does not apply because the
applicants never qualified for refugee protection. It is not that they once
did and their circumstances have changed. The applicants did not and do not
qualify within the Convention refugee definition. Therefore, even if the Board
had turned its mind to s. 108(4) it would have to have determined that the
applicants’ situation did not fall within the scope of s. 108(4).
Conclusion
[30]
For these
reasons, this application is dismissed.
[31]
Neither
party proposed a question of general importance for certification. I find that
there is no certifiable question arising in the case.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1. This
application is dismissed; and
2. No question
is certified.
"Russel W. Zinn"
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