Date: 20080602
Docket: IMM-4739-07
Citation: 2008 FC 686
Ottawa, Ontario, June 2, 2008
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Applicant
and
LU
ZHANG
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Zhang
is a Chinese seaman who arrived in North Vancouver, February 16, 2005, when he
jumped ship. On September 4, 2007, the Refugee Protection Division heard his
claim for Convention refugee status and on that same day gave very brief oral
reasons granting him refugee status.
[2] I am of
the view that the Minister’s application to set aside the RPD decision must be
allowed.
BACKGROUND
[3] Mr. Zhang
is 34 years of age and is a Chinese national. In 1993 he began working as a
seaman for a Chinese shipping company. He claims to have been paid lower wages
and was pressured to sign receipts claiming he was paid more. He also claims
to have known about the existence of an international seafarers’ organization, to
which he could make a complaint regarding his treatment, but he made no
complaint for fear that he would be banned from working.
[4] In 2005 Mr.
Zhang decided to leave China permanently. He discussed the idea with his
family and they supported his decision. He left with US$ 10,000. His next
trip brought him to Vancouver where on February 16, 2005, he jumped ship.
[5] He did
not contact authorities in Canada for assistance but remained underground. He
met other Chinese people in Vancouver and learned that he could make a refugee
claim but he made no such claim until much later and after his apprehension by
immigration authorities.
[6] On March
20, 2005, Mr. Zhang called his family in China and his father told him that his
family was being forced to pay US$ 200,000 as a fine or penalty for him jumping
ship. His father was interrogated by the Public Security Bureau and a summons
was issued by the local PSB against the Respondent on April 18, 2005, in China,
directing him to appear for questioning. The Respondent remained underground in
Vancouver.
[7] In August
2006, Mr. Zhang found a social insurance card. On September 21, 2006, he was
arrested by the greater Vancouver Transportation Authority for not paying a fare
for public transit and was subsequently transferred to the Canadian Border Services
Agency.
[8] During his
interview with the CBSA he alleged that his name was that on the SIN card he
had found. Only after being presented with his passport and his seaman’s documents
did he admit his true identity.
[9] On
September 26, 2006, the Respondent made a refugee claim after speaking with the
immigration duty counsel who assisted him in the preparation of his personal
information form. In February 2007, he was released from custody under
conditions and he retained a new lawyer to assist him with the refugee
process. His lawyer advised him that he should contact the International Transport
Workers Federation (ITF) to launch a compliant about the ship he worked on and
to receive some sort of compensation. Mr. Zhang’s RPD hearing was initially
scheduled for May 9, 2007, but was postponed to September 4, 2007, in order to
canvass the possible remedies from the ITF.
[10] On August
14, 2007, the ITF advised the Respondent’s counsel that the ship the Respondent
had worked on had been sold and any claim for back pay would be difficult. No complaint
or further action was taken with the ITF.
DECISION UNDER REVIEW
[11] The RPD
decision commences with a discussion of the evidence of Mr. Zhang concerning
his reasons for jumping ship. The RPD makes it clear that Mr. Zhang’s evidence
in this regard has been inconsistent during his interviews and his evidence was
not believed.
[12] The RPD then
continues with the portion of its decision dealing with the issue of
persecution in China. It is so brief it is reproduced in its entirety.
The determinative issue is,
regardless of your motives for jumping ship, is what would happen to you if you
are forced to turn to China? This case is very close to the wire and I'm
going to, however, give you the benefit of the doubt and I'm going to find that
you are a Convention refugee. I find that there is a serious possibility
you would be persecuted if you were to return to China. You will be persecuted
because you have jumped ship and will be punished if you return home.
Since you left the ship, the
shipping company Ken Rui and Jan Su Fan Yang both contacted your parents asking
about you, telling them they have suffered a penalty of 200,000 U.S. dollars.
They wanted your contact information here in Canada. Your father got the first
telephone call on March 7th, 2005. They are also threatening your family,
seeking repayment of the amount of money. The police or Public Security Bureau
went to question your father at his house on April 18th, 2005 and left a
summons. You have testified that the neighbourhood community patrol still
comes by with questions for your family and they seem to come every one to one
and a half months.
To assist the case we can look at
similarly situated persons. There is evidence that ship jumpers are harshly
dealt with. Counsel has produced an older Response to Information Request from
the Immigration and Refugee Board, an update to CHN13414 which outlines some of
those punishments. There are also a number of interesting documents which talk
about what happens to ship jumpers that complain to the International Transport
Workers Federation (ITF).
In your case at this time a claim
has not been made to the ITF. What is interesting about those ITF cases is
that they do tell how China responds to embarrassing complaints to
international bodies. I find it also indicative of how they will treat ship
jumpers which would also be an embarrassment to the country. There is at least
a serious possibility that you will be persecuted if you go home.
There are also cases of
imprisonment and harsh treatment and there is evidence on the file that some
remaining family members have been persecuted, for example, houses and
possessions are confiscated. In your case to date this has not happened to
date to your family. What is certain is there is no prospect you can ever repay
a penalty of 200,000 American dollars.
There is also evidence on your
file that the PSB has gotten involved in delving out the punishment. So in
your case, state protection and internal flight alternatives are not
reasonable, accessible or viable options.
Accordingly, I find you are a
Convention refugee and, therefore, accept your claim. [Emphasis
added]
ISSUES
[13] The Minister
raises three issues:
1.
Whether the RPD failed to apply the correct onus and standard of proof;
2.
Whether the RPD failed to provide proper reasons; and
3.
Whether the RPD made patently unreasonable findings of fact.
[14] The Minister
argues that in giving the Respondent the “benefit of the doubt” the RPD applied
a different standard of proof than that required at law.
[15] Alternatively,
the Minister argues that the reasons are so inadequate that it is unclear what
the RPD meant by giving the Respondent the “benefit of the doubt”.
[16] Lastly, it
is argued that the RPD made several reviewable findings of fact that were not
supported by the evidence before it.
ANALYSIS
[17] In my view,
the decision cannot stand. The RPD has failed to provide adequate reasons for
the conclusions reached. It may be that the findings of fact complained of are
reasonable and it may be that the “benefit of the doubt” assertion does not
indicate any misapplication of the burden of proof. However, the reasons are
so deficient that one is simply left in doubt on these questions and on others.
The following are some of the aspects of the decision where there is no
explanation or analysis provided on which the RPD based its conclusion:
·
On what basis did the RPD accept the evidence of the Respondent
concerning the possibility of persecution in China when it stated that it had
not found his evidence on other matters to be credible?
·
On what basis did the RPD accept the evidence of the Respondent
that a payment of US$ 200,000 was being demanded of his family when the
evidence was that the usual amount claimed was in the range between US$ 20,000
and US$ 25,000?
·
What weight, if any, did the RPD give to the fact that the
Respondent made no mention of the fine or the summons given to his father in
any of his statements made to immigration authorities for the period of some 18
months prior to the hearing?
·
On what basis did the RPD accept that the evidence of persecution
of sailors who complained to the ITF was applicable to the Respondent, since he
had made no such complaint?
·
On what basis did the RPD accept that evidence of how China
responds to embarrassing complaints to international bodies as indicative of
how they will treat others who are an embarrassment to the country but have
made no such complaint?
·
On what basis did the RPD find that ship jumpers are an
embarrassment to China?
·
On what basis did the RPD find that the summons to the Respondent
from the Chinese authorities was with reference to his ship jumping, when
nothing on its face indicated that to be so?
·
On what basis did the RPD find that the Respondent would be
persecuted, rather than prosecuted for jumping ship?
·
What analysis was done or consideration given to the Respondent’s
rank, record of dissident activity and general political climate, all of which
are indicated as factors that are considered by China when dealing with ship
jumpers?
[18] The
necessity for and adequacy of reasons has been discussed in a number of
decisions. The following passage of Justice Gibson in Sandhu v. Canada
(Minister of Citizenship and Immigration), [2005] F.C.J. No. 1294 concisely
sets out the applicable principles:
21. As earlier noted, the Court is left to
speculate with regard to all of the foregoing questions. Speculation is not a
proper basis for a decision on an application for judicial review. In Via
Rail Canada Inc. v. National Transportation Agency, [2002] 2 F.C. 25
(F.C.A.), the Federal Court of Appeal focused on the issue of the
duty of an administrative tribunal to give reasons, albeit that in the matter
there before the Federal Court of Appeal, the tribunal the decision of which
was under review was of a substantially different nature from the Tribunal
here. Justice Sexton, for the Court, wrote at paragraphs 16 to 19 of his
reasons:
Although the Act itself imposes no duty on the
Agency to give reasons, section 39 of the National Transportation Agency
General Rules does impose such a duty. In this case, the Agency chose to
provide its reasons in writing.
The duty to provide reasons is a salutary one.
Reasons serve a number of beneficial purposes including that of focusing the
decision maker on the relevant factors and evidence. In the words of the
Supreme Court of Canada:
Reasons, it has been argued, force better decision
making by ensuring that issues and reasoning are well articulated and,
therefore, more carefully thought out. The process of writing reasons for
decision by itself may be a guarantee of a better decision.
Reasons also provide the parties with the assurance
that their representations have been considered.
In addition, reasons allow the parties to
effectuate any right of appeal or judicial review that they might have. They
provide a basis for an assessment of possible grounds for appeal or review.
They allow the appellate or reviewing body to determine whether the
decision-maker erred and thereby render him or her accountable to that body.
This is particularly important when the decision is subject to a deferential
standard of review.
The quotation from the Supreme Court of Canada cited
in the foregoing quotation is from Baker v. Canada (Minister
of Citizenship and Immigration), [1999] 2 S.C.R. 17, at page 845.
…
25. In Mendoza v. Canada
(Minister of Citizenship and Immigration), [2004] F.C.J. No. 846, 2004 FC
687, my colleague, Justice Dawson wrote at paragraph 4 of her reasons:
Turning to the first asserted error, reasons are
required to be sufficiently clear, precise and intelligible so that a claimant
may know why his or her claim has failed and be able to decide whether to seek
leave for judicial review.
For the quoted proposition, Justice Dawson cited Mehterian
v. Canada (Minister of Employment and Immigration), [1992]
F.C.J. No. 545 (F.C.A.). I am satisfied that the Via Rail decision, which,
unlike the Mehterian decision, is not in an immigration judicial review
context, merely expands on the reasons provided in Mehterian as to why
reasons are required and as to why reasons must be sufficient.
[19] In
this instance, the reasons of the RPD fail to meet any of the requirements
discussed by my colleagues and this decision must be set aside.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1. The
application for judicial review is allowed.
2. The Respondent’s application for Convention refugee status is
referred back to the Refugee Protection Division for reconsideration and re-determination
by a differently constituted Panel.
3. There
is no certified question.
“Russel W. Zinn”
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