Date:
20130607
Docket:
IMM-8329-12
Citation:
2013 FC 619
Ottawa, Ontario,
June 7, 2013
PRESENT: The
Honourable Mr. Justice O'Keefe
BETWEEN:
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ZHI LIAN ZHOU
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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]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a
decision of the Immigration and Refugee Board, Refugee Protection Division (the
Board), dated July 23, 2012, wherein the applicant was determined to be neither
a Convention refugee within the meaning of section 96 of the Act nor a person
in need of protection as defined in subsection 97(1) of the Act.
[2]
The applicant requests that the Board’s
decision be set aside and the application be referred back to the Board for
redetermination by a different panel.
Background
[3]
The
applicant is a citizen of China. He claims protection on the basis of
persecution due to political opinion.
[4]
On
August 13, 2010, the applicant attended a demonstration protesting the
demolition of his house being ordered by the district government to make way
for a commercial development. The police arrived and the applicant saw two
police officers beat a female protester. He pushed the police officers away and
ran away with the woman, going into hiding. The Public Security Bureau (PSB)
came to his house, accusing him of illegal assembly and left a summons.
[5]
He
fled China for Canada and arrived on September 26, 2010. He claimed protection
three days later. The Board heard his claim on June 6, 2012.
Board’s Decision
[6]
The
Board made its decision on July 23, 2012, concluding that the applicant was not
a refugee or person in need of protection. The Board identified the
determinative issues as credibility and risk of persecution.
[7]
On
credibility, the Board drew a negative inference against the applicant due to
inconsistencies between his oral and written evidence concerning whether the
two police officers were holding the female protester as opposed to trying to
arrest her or beat her. The Board described the applicant’s testimony as vague
and inconsistent. The Board noted that in his Personal Information Form (PIF)
narrative, the applicant indicated he pushed two officers away, but in his oral
testimony, he said he pushed one and separated the hand of the other.
[8]
The
Board drew a further negative inference due to the applicant’s inability to
explain why the PSB who came to his home accused him of assembling people
illegally when he was not one of the organizers of the protest. At the hearing,
the applicant suggested he might have been caught by monitors pushing the
police officer, but the Board noted there was no mention of this in the PIF.
The Board concluded that had he been caught attacking a police officer, the PSB
would have mentioned it when visiting his home. The Board concluded the
applicant’s testimony was not credible.
[9]
The
Board rejected the alleged PSB summons produced by the applicant. It relied on
country conditions evidence that indicated the original copy of a summons is
retained at the police station and the suspect is given a duplicate, whereas
the document produced by the applicant was an original. It did not contain the
name of the issuer or server of the summons, something also mentioned in the
country conditions evidence. The Board concluded that despite the potential for
regional variation, it was reasonable to assume that authorities resident in
the provincial capital would follow prescribed guidelines by issuing a signed
receipt.
[10]
The
Board went on to note that the summons cited section 196 of the Criminal
Procedure Law of the People’s Republic of China, which dealt with the
timing of appeals by a people’s court of second instance. This was contrary to
the Board’s experience with summons documents indicating different sections.
The Board concluded the summons was fraudulent.
[11]
The
Board discussed the dated nature of the Response to Information Request
CHN42444.E (the RIR), which was issued in 2004. The Board indicated it had
given serious consideration to this Court’s decision in Lin v Canada
(Minister of Citizenship and Immigration), 2012 FC 288, [2012] FCJ No 312,
that this document was no longer trustworthy, but noted other decisions had
accepted its validity implicitly or explicitly.
[12]
The
Board went on to conclude that even if the PSB were pursuing the applicant, he
was not in jeopardy of persecution. It held that since his concern was
concerning the level of compensation for his house, his claim has no political
basis but was a disagreement with the authorities. The Board noted the maximum
penalty for disturbing public order is a fine and that this was a law of
general application that applies to the entire population of China. Even in non-democratic countries, such laws should be given a presumption of
validity or neutrality. The law in question must be shown to be generally
oppressive rather than the general nature of an oppressive regime.
[13]
The
Board therefore rejected the applicant’s claim.
Issues
[14]
The
applicant submits the following points at issue:
1. Did the Board err
in assessing the applicant’s credibility?
2. Did the Board err
in finding that the applicant faces prosecution for breaking a law of general
application and not persecution for protesting the government’s decision to
expropriate his land?
[15]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the Board err
in rejecting the applicant’s claim?
Applicant’s Written Submissions
[16]
The
applicant argues the Board erred by microscopically examining his testimony and
drawing unreasonable conclusions. The discrepancy concerning the arrest was
negligible and it is reasonable to infer that officers attempting to arrest a
protester would at some point restrain her by holding her. The discrepancies
concerning the applicant’s use of force against the officers are similarly
negligible. The applicant simply elaborated in his PIF in more detail, which
should not result in a negative inference. The applicant argues his explanation
of why the PSB was seeking him was credible, as it was possible monitors saw
him protesting but did not see his action against the police officers.
[17]
Concerning
the summons, the applicant argues the Board erred in relying on the dated RIR.
It was not unreasonable for the applicant to argue the appearance of a summons
had changed since 2004, as noted by this Court in Lin above. The Board
accepted the validity of the RIR in part due to the negative credibility
inferences against the applicant, which were unreasonable; therefore, the Board
erred in accepting the reliability of the RIR. The Board only cites this
Court’s decisions from 2011 that support the RIR, which predate Lin
above. The RIR also mentioned regional variances in summons forms.
[18]
The
applicant argues his involvement in the protest would be perceived as a
political act, as the protest criticized the government. An expression of
political opinion opposed to the Chinese authorities established nexus to the
Convention grounds. The summons indicated charges of assembling people
illegally, disturbing the social order and contempt against the government.
[19]
The
applicant disputes the Board’s finding that he faced only prosecution, not
persecution, as the Board did not consider the criteria identified in the UNHCR
Handbook: his political opinion, the nature of the act committed, the
nature of the prosecution and its motives. The applicant also argues the Board
erred in concluding he would only face a fine, as Item 9.4 of the Board’s
National Documentation Package (NDP) indicates Chinese citizens opposing land
expropriation risk beatings and imprisonment. Therefore, there was a
possibility of persecution.
Respondent’s Written Submissions
[20]
The
respondent argues that the applicable standard of review is reasonableness and
that the Board’s decision was reasonable. It is reasonable for the Board to
rely on inconsistencies and contradictions in the applicant’s evidence to a
draw a negative inference.
[21]
The
respondent argues the applicant’s oral testimony was not an elaboration of his
PIF narrative, but simply inconsistent. There is a clear difference between the
female protester being beaten and being held. There is also a clear difference
between pushing two officers away and separating someone from an officer’s
hand. It was reasonable for the Board to conclude that if the PSB had evidence
of the applicant pushing a police officer, it would have been noted in the
summons.
[22]
The
respondent argues it was reasonable for the Board to conclude the summons was
fraudulent, as the RIR from 2004 is the most recent information available and
the applicant did not demonstrate that the standards in Guangdon are different
from those established in the RIR. The use of the RIR was upheld in Zhuo v Canada (Minister of Citizenship and Immigration), 2012 FC 790, [2012] FCJ No 814, which
followed Lin above. The Board was entitled to rely on the evidence
indicating the availability of forged documents in the region. The Board is
entitled to prefer documentary evidence over oral testimony even if a claimant
is credible.
[23]
The
respondent argues the Board’s credibility findings were determinative and are
entitled to significant deference.
[24]
With
respect to the finding on the law of general application, the respondent argues
the applicant has not established that this law is disproportionately applied
so as to constitute persecution. The onus was on the applicant. The documentary
evidence indicated tensions between landowners and the government, but it
concerned activists and leaders of demonstrations, which the applicant was not.
The sanctions that may be imposed upon the applicant do not constitute
persecution and the applicant has not expressed a political opinion in this
incident.
Analysis and Decision
[25]
Issue
1
What is
the appropriate standard of review?
Where previous jurisprudence
has determined the standard of review applicable to a particular issue before
the court, the reviewing court may adopt that standard (see Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 57).
[26]
It
is established jurisprudence that credibility findings, described as the
“heartland of the Board’s jurisdiction”, are essentially pure findings of fact
that are reviewable on a reasonableness standard (see Lubana v Canada
(Minister of Citizenship and Immigration), 2003 FCT 116 at paragraph 7,
[2003] FCJ No 162; Canada (Minister of Citizenship and Immigration) v Khosa,
2009 SCC 12 at paragraph 46, [2009] 1 S.C.R. 339; Demirtas v Canada
(Minister of Citizenship and Immigration), 2011 FC 584 at paragraph 23,
[2011] FCJ No 786). Similarly, the weighing of evidence and the interpretation
and assessment of evidence are reviewable on a standard of reasonableness (see Oluwafemi
v Canada (Minister of Citizenship and Immigration), 2009 FC 1045 at
paragraph 38, [2009] FCJ No 1286).
[27]
In
reviewing the Board’s decision on the standard of reasonableness, the Court
should not intervene unless the Board came to a conclusion that is not
transparent, justifiable and intelligible and within the range of acceptable
outcomes based on the evidence before it (see Dunsmuir above, at
paragraph 47; Khosa above, at paragraph 59). As the Supreme Court held
in Khosa above, it is not up to a reviewing court to substitute its own
view of a preferable outcome, nor is it the function of the reviewing court to
reweigh the evidence (at paragraph 59).
[28]
Issue
2
Did the Board err in
rejecting the applicant’s claim?
As described in the cases
cited above, this Court is loathe to interfere with credibility determinations
given the Board’s expertise and the importance of oral testimony. However,
there are some findings where the inconsistencies relied on by the Board are
sufficiently minor and peripheral to an applicant’s case that they amount to
microscopic scrutiny and
warrant the Court’s intervention (see Gebremichael v Canada (Minister
of Citizenship and Immigration), 2006 FC 547 at paragraph
37, [2006] FCJ No 689).
[29]
The
Board’s negative inferences, based on extremely minor differences in the choice
of words used to describe the confrontation between the demonstrators and the
police, constitute such an unreasonable microscopic examination. The Board
presumed that the police holding a protester contradicts the police beating
the same protester, when it is clearly possible that a physical
confrontation could be described in either term, especially when the written
and oral evidence was interpreted by different translators. A review of the
transcript shows that the applicant gave a coherent description of a chaotic
scene where the police tried to arrest the female protester, including beating
and holding the protester. Similarly, the Board’s finding that pushing the
police officers away from the protester contradicts “separating” them, makes
little sense given that the separation of two people from a third against their
will could easily require pushing.
[30]
Given
that the Board’s credibility finding relied so heavily on these trivial
inconsistencies, that finding is outside the range of acceptable outcomes.
[31]
The
Board justified its finding that the summons was fraudulent with reference to
the negative inferences drawn against the applicant’s credibility. While the
Board also considered country conditions evidence in making this determination,
it is not clear how the Board would have considered this issue if the
applicant’s testimony were believed. Rooted as it is in the unreasonable
finding against credibility, I therefore find the Board’s decision on the
summons unreasonable as well.
[32]
That
leaves the Board’s consideration of prosecution versus persecution, which,
based on the Board’s reasons, I understand to be an alternative finding
separate from the credibility determination. However, the applicant gave oral
testimony concerning the persecution he feared at the hands of the PSB: he
noted that two of the representatives of the protesters were still in jail at
the time of the hearing, which was nearly two years after the date of the
protest. He testified that the PSB had told his wife that they would
“seriously” punish the applicant, which suggests more than a fine.
[33]
The
Board’s analysis of persecution only considered the charges identified in the
summons and made no mention of this testimony. Presumably, this was because the
Board had already rejected his credibility. This means that the persecution
finding is not in fact an alternative determination that can stand while the
credibility decision falls. The fact that two people who had attended the
protest had been detained for two years is relevant evidence to the level of persecution
the applicant faced and could easily have affected the Board’s analysis had his
credibility not been unreasonably rejected.
[34]
Finally,
I note the Board’s finding that the applicant’s opinion concerning the
expropriation of his home was apolitical. I would note, however, that the
protest was about more than the value of the applicant’s home. If he is found
to be credible, his PIF clearly states that a large crowd of people attended
the protest and were shouting slogans such as “The government is unfair”. Such
conduct to me sounds to be an anti-government protest.
[35]
The
application for judicial review is therefore granted and the matter is referred
to a different panel of the Board for redetermination.
[36]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
allowed and the matter is referred to a different panel of the Board for redetermination.
“John A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
Immigration
and Refugee Protection Act,
SC 2001, c 27
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72. (1) Judicial
review by the Federal Court with respect to any matter — a decision,
determination or order made, a measure taken or a question raised — under
this Act is commenced by making an application for leave to the Court.
96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is
outside each of their countries of nationality and is unable or, by reason of
that fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not
having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
97. (1) A
person in need of protection is a person in Canada whose removal to their
country or countries of nationality or, if they do not have a country of
nationality, their country of former habitual residence, would subject them
personally
(a) to
a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to
a risk to their life or to a risk of cruel and unusual treatment or
punishment if
(i) the
person is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the
risk would be faced by the person in every part of that country and is not
faced generally by other individuals in or from that country,
(iii) the
risk is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the
risk is not caused by the inability of that country to provide adequate
health or medical care.
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72. (1) Le
contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
96. A
qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a) soit
se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait
de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit,
si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle
avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut
y retourner.
97. (1) A
qualité de personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
a) soit
au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b) soit
à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i) elle
ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle
y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la
menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv) la
menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
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