Date:
20130130
Docket:
IMM-3343-12
Citation:
2013 FC 100
Ottawa, Ontario,
January 30, 2013
PRESENT: The
Honourable Mr. Justice Phelan
BETWEEN:
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YOU FENG YOU
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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
I. INTRODUCTION
[1]
The
Applicant is a 37 year old citizen of China. He was involved in a dispute with
the local government over compensation for expropriation of his house and land.
The protests by the Applicant became violent, the police involved themselves
and people were arrested. The Applicant fled to Canada where his refugee
protection claim claiming fear of the Chinese Public Security Bureau [PSB] was
denied. This is the judicial review of that decision.
II. FACTS
[2]
In
July 2009 the Applicant received notice that because the highway in his town
was being widened, his house would be demolished. He was offered compensation
which he considered insufficient.
[3]
All
of the owners being expropriated met and elected the Applicant and his uncle to
approach town officials to secure better compensation. Their efforts were
unsuccessful and feelings began to run high over the period to October 2009
when the people were to move out.
[4]
The
owners refused to move out on the appointed date and a few days later the
bulldozers arrived and began tearing down the homes. A protest ensued with
physical attempts to stop the demolition. In the ensuing fray the Applicant’s
uncle was injured.
[5]
Fortunately
for the Applicant, he took his uncle to hospital and when he returned, the PSB
were arresting the protesters allowing him to go into hiding. The PSB made
repeated attempts to find him and left a summons with the Applicant’s wife. The
Applicant says that the PSB still look for him on a regular basis.
[6]
Although
most of the protesters were released, the leaders were tried and sentenced to
four years in prison.
[7]
The
Applicant fled China and with the aid of a smuggler, arrived in Canada in December 2009 where he made his refugee protection claim.
[8]
The
Immigration and Refugee Board Member [Member] decided the case on the basis of
the following key factors:
(a) there
were omissions in the PIF; particularly the failure to provide the property
valuation form which the Applicant said he withheld because he thought it
better to tell the Member orally about it. The Member rejected this and similar
excuses for non-disclosure.
(b) the
Applicant failed to include in his PIF that his uncle had died as a result of
the altercation with police. This fact would have explained why his uncle,
similarly situated to the Applicant, was not pursued by police. Again, the
reason for omission was said to be because the Applicant thought it better to
raise it orally at the hearing.
(c) after
the Member’s detailed explanation of the Chinese summons system, the Member
concluded that the summons presented did not accord with known Chinese
procedures and forms such that little weight could be given to the document
especially in light of the ease with which fraudulent documents can be obtained
in China.
(d) there
were credibility concerns about his travel to Canada.
(e) the
Applicant altered his evidence to take away a contradiction in his evidence
concerning the taking of photographs.
(f) the
Applicant was not credible about the arrest and detention of protesters and not
credible about the police pursuit of him.
(g) the
Jail Visitor Card presented was fraudulent.
(h) there
was no persecution in prosecution for obstruction of the expropriation and demolition
of the Applicant’s home. There is no nexus to a Convention ground arising from
the government’s expropriation. The Applicant’s obstruction was not a political
protest. All that occurred was a breach of a law of general application
regarding the Immigration and Refugee Protection Act, SC 2001, c 27 s
97.
(i) the
Chinese punishment, while harsher than Canada’s, does not offend international
standards and prison conditions, which, while harsh and degrading, still meet
basic needs and accommodate rights.
[9]
There
are six issues raised by the parties upon which the determination of the
reasonableness of the decision depends:
(i) the
use of “raid” and “house church”;
(ii) the
credibility determination;
(iii)
the
Jail Visitor Card conclusion;
(iv)
the
summons analysis and conclusion;
(v)
the
absence of nexus finding; and
(vi)
s
97 analysis.
III. ANALYSIS
A. Standard of Review
[10]
There
are different standards of review in respect of different issues in this
judicial review:
•
in
respect of whether there was an error in description, the matter is whether it
is a material error (Kandasamy v Canada (Minister of Citizenship and
Immigration), 2007 FC 791, 159 ACWS (3d) 262);
•
credibility
(the key and overriding conclusion) is subject to the reasonableness standard
of review (Aguirre v Canada (Minister of Citizenship and Immigration),
2008 FC 571, 167 ACWS (3d) 773);
•
similarly,
the findings as to the documents are subject to the same reasonableness
standard (Chen v Canada (Minister of Citizenship and Immigration) 2011
FC 187, 2011 CarswellNat 351);
•
the
issue of nexus to a Convention ground is a matter of mixed law and fact and
subject to a reasonableness standard (Jacobo v Canada (Minister of
Citizenship and Immigration), 2012 FC 345, 407 FTR 18); and
•
the
s 97 analysis in this case is one of mixed fact and law and therefore also
subject to the reasonableness standard (Velez v Canada (Minister of
Citizenship and Immigration), 2010 FC 923, 2010 CarswellNat 3382).
B. Raid/House Church
[11]
The
Applicant objects to the Member’s use of the word “raid” in the context of the
police action regarding the obstruction of demolition. Given the circumstances
of a protest turning violent, police moving in might reasonably be called a
raid in this case.
[12]
The
Member’s reference to a “house church” where the protests were in respect to
demolition of homes was a factual error. However, it was immaterial as the
Member clearly understood the nature of the demolition and the obstruction.
There was no suggestion of a religious element to this case and the Member
understood that.
C. Credibility
[13]
The
Applicant objects to the allegedly “microscopic” analysis of omissions from the
PIF. However, the Member’s credibility finding is based on more than the mere
omissions.
[14]
The
credibility concerns about the PIF stem from the explanation of the reasons for
the omissions – that it was better to tell the Member orally. The Member was
more than entitled to view such an explanation askance particularly as these
were important matters, and the Applicant was represented by experienced counsel.
[15]
There
was a third issue raised concerning the taking of photographs which is not
material as it is tied up in the nature of the protest.
D. Jail Visitor Card
[16]
The
Member and the Immigration and Refugee Board have area expertise including
knowledge of some of the local practices. The Member was examining a photocopy
of the document and had concerns for the genuineness of the card on its face.
It was reasonable, if the credibility concerns about the Applicant were
reasonable (which they were), and the findings made about the summons, to
conclude that the card was, on a balance of probabilities, fraudulent.
E. Summons
[17]
The
Applicant raises a number of objections to the way in which the Member reached
his conclusions. The Applicant argues that the Member’s finding that there were
deficiencies in the summons was based on the Member comparing the requirements
for a summons type different from the type in evidence. The Applicant’s case on
this issue depends on the relevant summons being the Form 3 (CTR at 83) not
Form 2 examined by the Member (CTR at 81).
[18]
The
determination of which summons form is the relevant one is a factual matter and
relates to an area in which the Member has expertise. The Applicant provided no
persuasive evidence that the Member was wrong in this regard. Therefore, the
Member’s conclusions are sustained.
F. Nexus
[19]
The
Member found no nexus to a Convention ground because the alleged persecution
related to a dispute over compensation for expropriation. This is not a matter
covered by the Convention.
[20]
The
real dispute was over money not a grounds under the Convention. The monetary
dispute cannot be dressed up as a political dispute just because it is against
a government decision.
[21]
It
was not unreasonable to conclude that there was no nexus to a Convention
grounds given the nature of the dispute and protest activities.
G. Section 97 Analysis
[22]
The
Applicant’s contention is that the prison sentences are too long given the
gravity of the offences. The Applicant also argued that Chinese prisons were
known to be substantially worse than Canadian prisons.
[23]
The
Member was aware of the duration of the sentences allegedly given to the
leaders of the demonstration. Absent some evidence that the sentences were
beyond some acceptable range of sentences, the Applicant has failed to show
that the Member’s conclusion is unreasonable.
[24]
The
Applicant likewise failed in respect of the Chinese prison conditions. The
Member recognized that those conditions are “harsh and degrading” but concluded
that prisoners’ basic needs were met and prisoners’ rights were accommodated.
The Applicant has failed to show that this conclusion is unreasonable.
[25]
The
fact that sentences are harsher than in Canada and prison conditions are poorer
is not, in and of itself, sufficient to ground a claim under s 97. If it were,
the situation in much of the United States arguably would be grounds for a s 97
claim. The Member’s conclusion was not unreasonable.
IV. CONCLUSION
[26]
Therefore,
this decision, taken as a whole, being one related to a dispute over
expropriation compensation, is not unreasonable. The judicial review will be
dismissed. There is no question for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
dismissed.
“Michael L. Phelan”
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