Docket: IMM-8155-13
Citation:
2015 FC 486
Ottawa, Ontario, April 17, 2015
PRESENT: The
Honourable Mr. Justice Phelan
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BETWEEN:
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QI YING JIANG
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HUI YI XIAO
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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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JUDGMENT AND REASONS
I.
Introduction
[1]
This is the judicial review of a decision by the
Refugee Protection Division of the Immigration and Refugee Board of Canada
[RPD/Board] wherein the Applicants were held to be neither Convention refugees
nor persons in need of protection.
II.
Background
[2]
The Applicants, husband and wife, are citizens
of China. They fled China fearing arrest for their involvement in an
expropriation protest. They left behind what was then their only child.
[3]
The Applicants’ claim stems from an
expropriation protest that turned violent. The husband received notice in
September 2010 that their house would be expropriated for a new highway. The
property owners protested the amount of compensation offered and when the
government sent in equipment to demolish the houses, some of the protestors,
including the wife, were beaten and injured.
[4]
The Applicants state that on the night of the
protest, the police came for them and left a summons to appear. Later, the
Applicants heard that six people were detained.
[5]
Knowing that the PSB [police] were looking for
them, the Applicants left for Canada. They later learned that their house was
demolished without compensation and the police continued to look for them.
[6]
The Applicants also claim that their situation
has become more complicated because they have had a son in Canada. This violates Chinese family planning laws and they therefore fear having to pay a
large fine and forced sterilization upon return.
[7]
The RPD, in summary, denied the claim on the
following grounds:
•
lack of credibility in regards to how they came
to Canada, the process of expropriation and the details surrounding it;
•
even if the Applicants were credible, their
claim is not founded on Convention grounds; and
•
there is no serious possibility that the
Applicants would be forced into sterilization upon return.
III.
Analysis
[8]
There is no dispute that the standard of review
for this decision is reasonableness (Uygur v Canada (Citizenship and
Immigration), 2013 FC 752).
[9]
On the issue of general credibility, while the
Board is entitled to a high level of deference generally, where the Board
engages in plausibility findings, the Court is entitled to scrutinize those
conclusions more closely.
[10]
Some of the Board’s findings are not well
explained but one can see that by the Applicants switching parts of their
story, doubts about credibility are inevitable.
[11]
It is not necessary to deal substantively with
the issue of the truth about each part of the Applicants’ narrative. This
matter can be determined on the assumption that the Applicants’ narrative of
events is true.
[12]
The Board’s finding that this claim is not
founded on a Convention ground is both reasonable and correct. In Zolfagharkhani
v Canada (Minister of Employment and Immigration) (FCA), [1993] 3 FC 540,
155 NR 311, the Federal Court of Appeal set forth four “general
propositions relating to the status of an ordinary law of general application
in determining the question of persecution”.
(1) The
statutory definition of Convention refugee makes the intent (or any principal
effect) of an ordinary law of general application, rather than the motivation
of the claimant, relevant to the existence of persecution.
(2) But
the neutrality of an ordinary law of general application, vis-à-vis the five
grounds for refugee status, must be judged objectively by Canadian tribunals
and courts when required.
(3) In
such consideration, an ordinary law of general application, even in
non-democratic societies, should, I believe, be given a presumption of validity
and neutrality, and the onus should be on a claimant, as is generally the case
in refugee cases, to show that the laws are either inherently or for some other
reason persecutory.
(4) It
will not be enough for the claimant to show that a particular regime is
generally oppressive but rather that the law in question is persecutory in
relation to a Convention ground.
[13]
The Board reasonably concluded that the
Applicants had not rebutted the presumption of neutrality and validity of the
Chinese expropriation law. Furthermore, the Board reasonably concluded that the
Applicants had failed to provide evidence that the law would be used against
them due to a perceived political dissent.
[14]
There is no question that the Applicants’ issue
with the Chinese authorities was the amount of compensation due upon expropriation.
Absent anything else, this could hardly fall within the type of matters covered
by the Convention. This finding is consistent with the decision in You v Canada (Citizenship and Immigration), 2013 FC 100:
[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.
[15]
As the Board concluded, the fact remains that
the Applicants are sought by police for their involvement in interfering with
an expropriation. A similar offence exists in Canada under s 129 of the Criminal
Code.
[16]
Therefore, the Board’s conclusion as to the
absence of a Convention ground must be upheld.
[17]
With respect to the fear of forced
sterilization, the Board concluded that on balance the Applicants would face a
fine, particularly returning to their home city.
[18]
There is no merit in the suggestion that the
Board ignored evidence as to the realities under the “One
Child Policy”. Paragraph 61 of the Board’s decision refers specifically
to the mixed messages concerning Chinese government policy and action on this
issue. However, the Board weighed off evidence from the authorities and outside
sources that an enhanced fine rather than forced sterilization is the more
likely penalty.
[19]
This finding is well set out and is the exercise
of the very function assigned to the Board. The Applicants want this Court to
reweigh the evidence and come to a different conclusion. That is not the
Court’s function.
[20]
Further, this Court (Justice Shore) in Yu v Canada (Citizenship and Immigration), 2015 FC 61, held at paragraph 17:
[17] Furthermore, as evidenced by the
country conditions documentation, citizens who have “unauthorized children”
such as the Applicants are required to pay a monetary fine known as the “social
maintenance fee”, which is determined by individual provincial governments.
Relying on the jurisprudence of this Court, the RPD concludes that economic
sanctions, as a means to enforce compliance with the law, do not amount to
persecution (Li, above; Lin v Canada (Minister of Employment and
Immigration), (1993), 66 FTR 207 at para 6).
[21]
The Board’s finding on this issue is reasonable
and does not merit Court intervention.
IV.
Conclusion
[22]
This judicial review will be dismissed. There is
no question for certification.
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