Docket: IMM-5624-11
Citation: 2012 FC 244
Ottawa, Ontario, February 22,
2012
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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CHENG HSIANG LIU
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
Applicant, Cheng Hsiang Liu, seeks judicial review of a decision of the Refugee
Protection Division of the Immigration and Refugee Board (the Board), dated
July 27, 2011. The Board determined that he was not a Convention refugee
or person in need of protection within the meaning of sections 96 and 97 of the
Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA).
I. Background
[2]
The
Applicant was born in Calcutta, India. His
ethnicity is Hakka Chinese. He is also considered a British Subject.
[3]
In
India, the
Applicant worked at his family’s shoe company. He alleges having encountered
problems with gangsters because his family is Chinese. According to the
Applicant, these gangsters threatened to set the company on fire and kill him.
[4]
The
Applicant closed the company and came to Canada on May 31,
1999. He waited 10 years before making a refugee claim.
II. Decision
Under Review
[5]
The
Applicant’s identity was established as a British Subject based on a copy of
his United Kingdom of Great Britain and Northern Ireland passport. The
Board did not have sufficient evidence to conclude that the Applicant was a citizen
of India, given his passport had various entries showing that he was issued a
visa valid for different periods of time in that country. If he were a citizen
of India, the Board
considered it unlikely that he would need a visa to enter the country.
[6]
The
Board considered the determinative issues to be the lack of nexus to a
Convention ground and credibility of the claim as put forward. The Applicant
could not be a Convention refugee due to the possibility of being targeted by
gangsters in India since this
implied he was a victim of a crime.
[7]
The
Board proceeded with an analysis of possible harm that would come to the
Applicant from gangsters in India under section 97, but did not reach a
decision in the Applicant’s favour as a result of credibility concerns. While
the Applicant did not have a good command of English and only knew Hakka and
Hakka people, no credible reason was given as to why he could not go to the United
Kingdom
as a British Subject or pursue British citizenship. This negative credibility
finding was made despite the Applicant’s minimal education of three years.
[8]
It
was also noted that the Applicant did not answer the question as to why he
waited 10 years before making a refugee claim. If the Applicant had a
subjective fear due to the problems experienced in India, he would
have made a claim within a reasonable timeframe.
[9]
Finally,
the Board stated that it “simply does not believe the reasons for the
claimant’s alleged problems in India” since no corroborating evidence had been submitted
to support his claim.
III. Issues
[10]
This
application raises the following issues:
(a) Did the Board err in finding
that there was no nexus to a Convention ground?
(b) Did the Board err in its
assessment of the Applicant’s credibility?
(c) Did
the Board err by proceeding with the hearing in the absence of the Designated
Representative (DR)?
(d) Did the Board breach procedural
fairness in the conduct of the hearing?
IV. Standard
of Review
[11]
The
nexus to a Convention ground is a question of mixed fact and law reviewable on
a standard of reasonableness (see Chekhovskiy v Canada (Minister of
Citizenship and Immigration), 2009 FC 970, [2009] FCJ No 1180 at paras 17-18).
Questions of fact and credibility also require this standard (see Aguirre v
Canada (Minister of
Citizenship and Immigration), 2008 FC 571, [2008] FCJ no 732 at para 14).
[12]
Applying
the reasonableness standard, this Court must look for “the existence of
justification, transparency and intelligibility” as well as “whether the
decision falls within the range of possible, acceptable outcomes defensible in
respect of the facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190 at para 47).
[13]
However,
questions of natural justice or procedural fairness demand the correctness
standard (see Canada (Minister of Citizenship and Immigration)
v Khosa,
2009 SCC 12, 2009 CarswellNat 434 at para 43).
V. Analysis
A. Did
the Board Err in Finding that there was no Nexus to a Convention Ground?
[14]
The
Applicant contends that the Board did not analyze the substance of his claim,
namely that he feared persecution by gangsters in India who were
against Chinese and jealous of his family’s business. His refugee claim
related to persecution based on race and ethnicity.
[15]
The
Respondent maintains that the Board reasonably found no nexus to a Convention
ground for the Applicant as a possible target of gangsters in India. In
general, victims of crime are not considered Convention refugees (see Zefi v
Canada (Minister of
Citizenship and Immigration), 2003 FCT 636, [2003] FCJ no 812 at para
40). Moreover, the Applicant failed to establish that he had been targeted due
to race or ethnicity.
[16]
The
Applicant refers the Court to the decision of Ahangaran v Canada (Minister
of Citizenship and Immigration) (1999), 168 FTR 315, [1999] FCJ no 772 at
para 5 where Justice Donna McGillis acknowledged that the Board was entitled
to “consider all of the matters relied on by it in assessing the applicant’s
credibility”, but found an error of law in failing to consider the totality of
the evidence where there was no evaluation of “the credibility of his evidence
concerning the substance of his refugee claim.” In that instance, the Board
made credibility findings based solely on the applicant’s travel after leaving
the country and use of false documents and identities.
[17]
Similarly,
Sampu v Canada (Minister of Citizenship and Immigration), 2001 FCT 756,
[2001] FCJ no 1100 at paras 9-12 faulted the Board for not evaluating “the
credibility of the evidence on all central aspects of the claim” where it
failed to consider the applicant’s arrest and torture due to the performance of
a song viewed as critical by government authorities.
[18]
By
contrast, Katwaru v Canada (Minister of Citizenship and Immigration),
2007 FC 612, [2007] FCJ no 822 at paras 9-12 upheld a determination by the
Board that an attack was not racially motivated as there “was no reliable and
persuasive information to suggest that this is the reason the bully targeted
the applicant.” Consequently, it was reasonable to conclude that the attack
was not racially motivated and preclude a further determination based on mixed
motives.
[19]
In
this case, the Board addressed the substance of the claim advanced by the
Applicant in relation to a fear of persecution. It concluded “[t]he threats as
alleged by the claimant is a situation where he would be the victim of crime.” This
approach is consistent with Zefi, above. As the Respondent suggests,
the Applicant simply disagrees with the Board’s characterization of his claim
in this manner as opposed to focusing on any racial motivation.
[20]
It
is notable that the Board later stated it did not believe the reasons for the
Applicant’s alleged problems in India and found “[n]o
corroborating evidence was submitted to support the claim as alleged.” This
situation more closely resembles that of Katwaru, above because there is
no evidence to support the claim as a whole and consequently any ethnic or
racial motivation underlying the alleged extortion.
[21]
Given
the nature of the claim as presented and lack of corroborating evidence, the
Board did not commit a reviewable error in finding that there was no nexus to a
Convention ground because the Applicant was the victim of a crime.
B. Did
the Board Err in its Assessment of the Applicant’s Credibility?
[22]
The
Applicant questions the completeness of the Board’s credibility assessment. He
insists it was unreasonable for the Board to make a negative finding in
relation to his lack of action in pursuing British citizenship despite the
explanations given as to why he does not want to go to the United
Kingdom.
He has never been there and his English is not good whereas he has some
siblings living in Canada.
[23]
I
am not persuaded, however, that the Board’s credibility findings are
unreasonable.
[24]
In
Williams v Canada (Minister of Citizenship), 2005 FCA 126, [2005] FCJ no
603 at para 22, the Federal Court of Appeal confirmed that “if it is
within the control of the applicant to acquire the citizenship of a country
with respect to which he has no well-founded fear of persecution, the claim for
refugee status will be denied.”
[25]
The
Board recognized that the Applicant had a United Kingdom of Great Britain and
Northern Ireland passport revealing his nationality is that of a British
Subject. There is a process in place for the acquisition of citizenship under
related British legislation.
[26]
The
Board considered the Applicant’s response as to why he could not go to the United
Kingdom
but found this was not a sufficient reason. His lack of action in pursuing
British citizenship or attempting to live in the United Kingdom had a severe
negative impact on his credibility as a person at risk. While the Applicant
would have preferred that the Board accepted his explanation, it was entitled
to weigh the evidence and place emphasis on that fact that he could claim
citizenship in another country as suggested by Williams, above.
[27]
In
addition, the Board’s negative inference in this regard was supported by other
credibility concerns. The Applicant was faulted for the 10 year delay in
making a refugee claim. While the “delay in making a claim to refugee status
is not a decisive factor in itself” it is nonetheless a “relevant element which
the tribunal may take into account in assessing both the statements and the
actions and deeds of a claimant” (see Huerta v Canada (Minister of
Employment and Immigration) (1993), 157 NR 225, [1993] FCJ no 271). It is
reasonable to expect that the Applicant would make a claim at the first
possible opportunity and determine that a failure to do so further undermines
his credibility (see Jeune v Canada (Minister of
Citizenship and Immigration), 2009 FC 835, [2009] FCJ no 965 at para
15).
[28]
More
significantly, the Board emphasized that “[n]o corroborating evidence was
submitted” of the alleged problems the Applicant faced in India. Drawing a
negative inference based on a lack of corroborating evidence was addressed by
Justice Yvon Pinard in Bhagat v Canada (Minister of
Citizenship and Immigration), 2009 FC 1088, [2009] FCJ no 1368.
[29]
Given
the concerns associated with the Applicant’s story, the Board was justified in
drawing a negative inference as to his credibility.
C. Did the Board Err
by Proceeding with the Hearing in the Absence of the Designative Representative
(DR)?
[30]
At
the Second Sitting for the Applicant’s refugee claim, the Board contemplated
designating a representative for him. The Applicant’s cousin, Mr. Liu, who had
initially been waiting in the reception area, was asked if he would fulfill
this role. It appeared as though the cousin was prepared to do so but then
decided he would not accept the responsibility. However, he remained in the
room and continued to communicate with the Board member during the hearing.
[31]
The
Applicant takes issue with the Board’s handling of this matter. He refers to an
“on again off again relationship” with the Applicant’s cousin. While the Board
took the initiative in attempting to designate a representative, the Board
proceeded in the hearing without one. Also disconcerting from the Applicant’s
perspective was the continued presence and involvement of Mr. Liu despite
having eschewed formal responsibility.
[32]
However,
the Respondent notes, and I agree, the Applicant should have raised an
objection to proceeding in the absence of a designated representative or Mr.
Liu remaining in the room during the hearing. From the decision of Benitez
v Canada (Minister of
Citizenship and Immigration), 2006 FC 461, [2006] FCJ no 631 at para 220,
it is established that “an applicant must raise an allegation of bias or other
violation of natural justice before the tribunal at the earliest practical
opportunity.” The “earliest practical opportunity” is when the applicant “is
aware of the relevant information and it is reasonable to expect him or her to
raise an objection.”
[33]
While
the Applicant in this case has limited education, he was assisted at all times
during the hearing by counsel. This counsel could have addressed the issue of
the designated representative, questioned proceeding or objected to the continued
presence of Mr. Liu.
[34]
I
also highlight that in continuing the Board made efforts to ensure that the
Applicant understood what was in his Personal Information Form (PIF) and the
nature of the proceeding.
[35]
As
a consequence, the Board did not commit a breach of natural justice or
procedural fairness by continuing without designating a representative for the
Applicant in this instance.
D. Did
the Board Breach Procedural Fairness in the Conduct of the Hearing?
[36]
The
Applicant raises procedural fairness concerns regarding the conduct of the
hearing in general. He states that the Board member told him to “hold on” or
“hold on and just listen.” He felt he was constantly interrupted and not
allowed to speak so that the Board member could rush through to complete the
hearing.
[37]
In
addition, the Applicant complains that although he stated the PIF had been
translated to him before signing it, the Board member spent the majority of the
Second Sitting reciting its contents to him. As a result, he hardly asked any
questions about the substance of the case.
[38]
The
Respondent maintains that the Applicant is taking the Board member’s comments
out of context. They were made to ensure he understood the nature of the
hearing. The reading of the PIF to the Applicant was for a similar purpose of
confirming that he knew its contents.
[39]
The
Applicant’s counsel did not object to the Board member’s approach during the
hearing. He did not ask questions or make submissions. The onus was on the
Applicant, with the assistance of his counsel, to present his case. A failure
by a claimant to fulfill his obligations and assume his burden of proof cannot
be imputed to the Board so as to make it a Board's failure (Ranganathan v
Canada (Minister of Citizenship and Immigration) (2000), [2001] 2 FC 164,
[2000] FCJ no 2118 at para 11).
[40]
I
am not persuaded that there is any aspect of the Board member’s conduct during
the hearing that would affect the Applicant’s ability to put forward his case
and consequently lead to a breach of procedural fairness warranting the
intervention of this Court. Rather, the Board member’s interjections were
aimed at assisting the Applicant in understanding the process.
VI. Conclusion
[41]
The
Board was reasonable in its determinations regarding the lack of nexus to a
Convention ground and credibility. There were also no procedural fairness
issues that arose in continuing without a Designated Representative when the
Applicant was represented by counsel or in the conduct of the hearing more
generally.
[42]
For
these reasons, this application for judicial review is dismissed.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application for judicial review is dismissed.
“ D.
G. Near ”
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