Docket: IMM-2527-14
Citation:
2015 FC 471
Toronto, Ontario, April 15, 2015
PRESENT: The Honourable Madam Justice Simpson
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BETWEEN:
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XITANG ZHAO
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(A.K.A. XI TANG ZHAO)
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YUEQUN ZHAO
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(A.K.A. YUE QUN ZHAO)
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YONGHONG ZHAO
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(A.K.A. YONG HONG ZHAO)
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JIAWEN ZHAO
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(A.K.A. JIA WEN ZHAO)
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Applicants
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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ORDER AND REASONS
(Delivered Orally from the Bench in Toronto, Ontario on April 14, 2015)
[1]
The applicants are a husband (the Principal
Applicant), his wife and their two children. They have applied for judicial
review of a decision of the Refugee Protection Division of the Immigration and
Refugee Board (the Board) dated March 11, 2014 wherein the Board determined
that they are neither Convention refugees nor persons in need of protection
(the Decision). The application is made pursuant to subsection 72 (1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (the IRPA).
I.
Background
[2]
The applicants are a family from Guangdong province in China. On September 19, 2011, the local town government notified the Principal
Applicant that his farm was being expropriated.
[3]
In October 2011, the Principal Applicant and six
others whose farms were being taken acted as representatives (the
Representatives) of the 30 families affected by the expropriations. They
delivered a letter summarizing their concerns about fair compensation (the
Letter) to the district government. At that time a guard took the names of the Representatives.
[4]
On December 12, 2011, the Principal Applicant
and his wife, along with one hundred villagers, arrived at the district
government office to discuss reasonable compensation. After waiting for about
one hour, they grew impatient and started chanting slogans (the Protest). The
Public Security Bureau (PSB) arrived and began to assault the protesters. The Principal
Applicant and his wife escaped and went into hiding. The PSB went to the
applicants’ home to arrest the Principal Applicant and his wife, accusing them
of leading the Protest. The PSB left a summons for the Principal Applicant and
his wife and looked for them repeatedly at relatives’ homes. The other six Representatives
were all arrested, and were subsequently sentenced to three years in prison.
[5]
After the Principal Applicant’s children were
suspended from school, he realized that his family would not be safe in China. He therefore made plans to leave including hiring a smuggler and securing US visas.
[6]
On February 25, 2012, the applicants arrived
in the US. Then they illegally entered Canada on March 3, 2012. On March 9,
they filed their refugee claims. They explained their failure to claim in the US saying that they followed their smuggler’s instructions which involved claiming in Canada.
II.
The Decision
[7]
The Board based its negative credibility finding
on the following:
1.
Given the Golden Shield Project, it was highly
unlikely that the applicants would have been able to leave China using their own passports if they had actually been sought by the PSB.
2.
If they had actually been sought by the PSB the
applicants would not have approached the US visa office for fear of being
arrested by the police guards at that location.
3.
The PSB’s violent response to the Protest was improbable
given that authorities sometimes tolerate demonstrations.
4.
It was unreasonable that the PSB summons would
include the applicant’s wife as she had not been one of the Representatives.
5.
There was conflicting testimony between the Principal
Applicant and the female applicant about who had written the Letter.
6.
Other documents were not deserving of any weight
because: i) Fraudulent documents are available in China; ii) The documents lacked
security features; and iii) The Board had credibility concerns about the
applicants’ testimony.
[8]
In light of the above, the Board concluded that
the Principal Applicant had failed to establish that he had been a Representative
of a group of villagers whose land had been expropriated or that he and his
wife were fugitives from the PSB.
[9]
On the issue of nexus, the Board found that even
if the applicants were believed, the Principal Applicant would face prosecution
and a fine under a law of general application for organizing an illegal public
gathering. The Board also drew a negative inference regarding the applicants’
subjective fear given their failure to make a claim for asylum in the United States.
III.
Issues
[10]
There are two issues:
1.
Did the Board make unreasonable credibility
findings?
2.
Did the Board assess nexus reasonably?
IV.
Discussion
A.
Issue I
[11]
The Board concluded that the evidence showed an
inconsistency in that the Principal Applicant said that the Letter was written
by a third party while his wife testified that she had written the Letter. A
review of the transcript shows that the Board was mistaken. Both applicants
said that a third party had been the author of the Letter.
[12]
The Board also concluded that the applicants’
failure to claim in the US showed a lack of subjective fear and the Board noted
in this context that the applicants’ passports had no US entry stamps. The inference was that the applicants might have spent significant time in
the US and might not have used the services of a smuggler to come to Canada. However, the Board was again mistaken. There were US entry stamps in all the
applicants’ passports showing February 25, 2012 as their arrival date.
[13]
In my view, these two errors coloured the entire
Decision because the Letter was central to the claim and the existence of a
smuggler explained the applicants’ failure to claim in the US.
B.
Issue II
[14]
Having said that it would consider the issue of
persecution vs. prosecution on the basis that the applicants were credible; the
Board only looked at the possibility of a fine. It failed to consider the
applicants’ evidence that other Representatives were sentenced to three years
in prison for their participation in the Protest.
[15]
For all these reasons, the application will be
allowed.
[16]
No question was posed for certification for
appeal pursuant to section 74(d) of the IRPA.
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