Docket: IMM-2894-16
Citation:
2017 FC 66
Ottawa, Ontario, January 19, 2017
PRESENT: The
Honourable Mr. Justice Mosley
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BETWEEN:
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YUXIAN SU
JIA WEI JIANG
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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
[1]
Guyana has one of the higher rates of crime in
the Western Hemisphere. Robbery is a serious problem, particularly for those
residents engaged in business and believed to keep cash and other valuables in
their commercial premises and homes. The applicants were the victims of
robberies in Guyana and submit that they were targeted because of their race
and that their claim for protection in Canada was erroneously dismissed by the
Immigration and Refugee Board.
[2]
They have brought this application for judicial
review under subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA or the Act] of a decision dated June 1, 2016 by the
Refugee Appeal Division (RAD). The RAD confirmed the decision of the Refugee
Protection Division (RPD) that the applicants are not Convention refugees or
persons in need of protection under sections 96 and 97 of the IRPA.
[3]
For the reasons that follow, the application is
dismissed.
I.
BACKGROUND
[4]
Yuxian Su, and her son, Jia Wei Jiang, are of
Chinese ethnicity and citizens of Guyana. In 2003, Ms. Su became a Guyanese
citizen; in order to do so, she relinquished her Chinese citizenship. Jia Wei
Jiang was born in Guyana and is, at the time of writing, 14 years of age. From
2008 until 2010, he attended school in China.
[5]
From 2001 until 2011, Ms. Su and her husband
opened and operated a restaurant in Georgetown, Guyana. During that period,
their business was subject to five armed robberies. Ms. Su claims that they
called the police after each robbery but that the police would never show up. From
2011 until 2014, Ms. Su and her husband worked in another restaurant that they
did not own.
[6]
In March 2014, the applicants were assaulted and
robbed in their home. Ms. Su testified before the RPD that during the robbery,
she was knocked unconscious and that her son was tied up while their home was
robbed of valuables and money.
[7]
In April 2014, Ms. Su, her husband, and their
son went to China to inquire about regaining their citizenship and obtaining Chinese
citizenship on behalf of their son. Unsuccessful, they returned to Guyana in
June 2014.
[8]
In February 2015, when Ms. Su was escorting her
son to school, two Guyanese men threw water at them and yelled “all Chinese should be kicked out of the country.” In August 2015, a close family friend, an ethnic-Chinese restaurant
owner, was murdered during a robbery.
[9]
As a result, the family returned to China on
September 30, 2015 to see if they could acquire status there. However, the
prospect was still uncertain and they did not want to risk becoming stateless
by relinquishing their Guyanese citizenship. The applicants entered Canada, via
the United States, on November 4, 2015 with the assistance of a smuggler. The
father remained in China as they did not have the funds to pay the smuggler for
him as well. The applicants made their refugee claim on December 2, 2015.
II.
DECISION UNDER REVIEW
A.
The RPD decision
[10]
The RPD found that there was no nexus with a
Convention ground, namely race, in the applicants’ claim. The RPD decided also that
the applicants’ claim was disqualified under the “generalized
risk” clause in subparagraph 97(1)(b)(ii) of the IRPA. Ms. Su was found
to be credible with respect to her account of the robberies. However, her
credibility was questioned with respect to her interactions with the police
after the robberies took place. The Member found that her testimony in that
regard was repetitive and lacking in detail.
[11]
In any event, the RPD Member noted that the
determinative issue in this case was not state protection, but rather whether
the applicants faced a personalized risk. The Member rejected the applicants’
claim that there was a nexus to a Convention ground, namely race. Instead, the
Member reasoned that Ms. Su’s appearance of wealth, as the owner of a
restaurant, was the underlying motivation for the robberies. She had testified that there is a perception in Guyana that Chinese Guyanese citizens
are wealthy but noted that the same was true of business people in general. Between
the time that they closed the restaurant in 2011, and 2014 when they were
attacked in their home, the applicants had not suffered other violent incidents
or robberies. The Member did not accept that the home invasion was linked to
race or that the family was personally targeted.
B.
The RAD decision
[12]
On appeal, the RAD Panel began its analysis by setting out its role in relation to the RPD’s decision relying on
the Federal Court of Appeal’s decision in Canada
(Minister of Citizenship and Immigration) v Huruglica, 2016 FCA 93, [2016] FCJ No 313 [Huruglica] .
[13]
As the applicants contended that the RPD erred
in failing to accept that race was a motivating factor in crimes committed
against them, the RAD Member reviewed that finding. Upon listening to the audio
recording of the RPD hearing, the RAD found that Ms. Su had acknowledged in her
testimony that business owners were targeted, as they were perceived to have
money. The RAD concluded that as deplorable as these robberies were, they were
not motivated by race.
[14]
In reaching this conclusion, the RAD was guided
by this Court’s decision in Bacchus v Canada (Minister of Citizenship and
Immigration), 2004 FC 821, [2004] FCJ No 1023, at paragraph 11, where I
noted that “although the applicant has been the victim
of violent crime, all Guyanese are at risk for these sorts of crimes.”
In that case, the applicant was Indo-Guyanese.
[15]
The RAD also reviewed the RPD’s “generalized risk” analysis and confirmed its
findings. The RAD Member concluded that the applicants were not personally
targeted and that their risk is one that is generally faced by other persons in
Guyana who are perceived to be wealthy. The RAD reiterated the applicants’
acknowledgment that business owners were targeted in Guyana due to the
perception that they are affluent. The RAD noted Ms. Su’s testimony that the perpetrators
of the robberies were unknown to her, and did not appear to be the same
individuals.
[16]
The RAD also considered the documentary evidence
and specifically noted a report from the United Nations Office on Drugs and
Crime, which lists Guyana’s 2012 homicide rate as 17 per 100,000 people – the
fourth highest murder rate in South America. The Member also acknowledged that
armed robberies reportedly occur regularly, especially in businesses and
shopping districts. As such, the RAD found that the documentary evidence
supported the conclusion that these robberies are not motivated by ethnicity,
but rather, they are common criminal acts carried out against persons perceived
to have money.
[17]
The RAD considered “state
protection” as an alternative ground, noting that per Huruglica, above,
it is mandated to conduct its own independent assessment of the entire record.
While the RPD had not made a determination on this ground, it was raised in the
applicants’ appeal record.
[18]
The RAD Member cited the presumption that the
state is capable of protecting its citizens, except in cases where the state is
in complete breakdown: Canada (Attorney General) v Ward, [1993] 2 SCR
689 at 709 and 725. As such, a claimant who alleges that state protection is
inadequate must provide “clear and convincing”
evidence of the state’s inability to protect its citizens: Carrillo v Canada
(Minister of Citizenship and Immigration), 2008 FCA 94, [2008] 4 FCR 636.
[19]
With respect to Ms. Su’s interactions with the
police, the RAD concurred with the RPD’s finding that her testimony provided
little detail. Moreover, the RAD noted that there is no evidence that she had
personally gone to the police station to file a complaint, nor had she taken any
further action to complain about the police themselves.
[20]
The RAD acknowledged that there is evidence of
police corruption in Guyana, but also noted some evidence of avenues where such
abuses can be reported. It ultimately concluded that there was no evidence that
corruption has led to a complete breakdown of the social order, or has resulted
in the police and the judiciary failing to perform their duties adequately or
effectively in all cases. As such, the RAD found that the probability of
corruption leading to inadequate and ineffective state protection must be
assessed on a case by case basis. In this case, the RAD found that it was
unreasonable for Ms. Su to not pursue state protection because of potential
corruption.
[21]
In the result, the RAD concluded that there was
insufficient evidence to support a nexus with race. In the alternative, after
conducting an independent assessment of the record before it, the RAD found
that the applicants failed to rebut the presumption of state protection.
III.
ISSUES
[22]
Having considered the issues identified by the
parties, I would describe them as follows:
A.
What is the standard of review?
B.
Was the RAD’s assessment of the evidence
reasonable?
C.
Was the RAD’s nexus finding unreasonable?
D.
Was the RAD’s finding of state protection
unreasonable?
IV.
ANALYSIS
A.
Standard of review
[23]
There was no disagreement between the parties
that the application raises issues of mixed fact and law calling for the
application of the reasonableness standard: Huruglica at paras 30 and
35. This applies in particular to credibility findings as well as to findings
regarding the existence of a nexus to a Convention ground or state protection: Cheema
v Canada (Minister of Citizenship and Immigration), 2015 FC 441, [2015] FCJ
No 494 at para 6 [Cheema].
[24]
Application of the reasonableness standard means
that the Court shall not interfere with the RAD’s decision unless it lacks
justification, transparency and intelligibility and falls outside a range of
possible, acceptable outcomes, defensible in fact and in law: Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47 [Dunsmuir].
[25]
At the hearing, the applicants argued that the
RAD erred in law when it considered the state protection issue even though the
RPD did not make a finding on that issue in its decision. He argued that this
constitutes an error in law and attracts a correctness standard. As determined
in Huruglica at para 78, the role of the RAD is to intervene when the
RPD is wrong in law, in fact or in fact and law. That translates into an
application of the correctness standard of review.
[26]
In this instance, and based on its review of
subsection 111 (1) (a) of the IRPA and the Court of Appeal’s decision in Huruglica,
the RAD concluded that it was its role to conduct an independent assessment
of the record on appeal. Therefore, the RAD found that it was open to it to examine
the issue of state protection as well.
[27]
The RAD’s assessment and defining of the scope
of its appellate function is a question of law which falls within the RAD’s
expertise, and therefore, attracts the reasonableness standard of review: Huruglica,
above, at paras 31-32.
B.
Was the RAD’s assessment of the evidence
reasonable?
[28]
The applicants submit that the RPD engaged in a
selective reading of the evidence and committed a reviewable error by
emphasizing evidence that supported a determinative finding while disregarding
evidence that contradicted or challenged that finding: Ragunathan v Canada
(Minister of Employment and Immigration), [1993] FCJ No 253 [Ragunathan];
Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration), [1998]
FCJ No 1425 [Cepeda-Gutierrez]; Zheng v Canada (Minister of
Citizenship and Immigration), [1995] FCJ No 140 [Zheng]. The
applicants submit that the RAD should have set aside the RPD decision on that
basis alone.
[29]
The applicants cite three news articles that
they claim were ignored by the RPD and RAD:
·
“Two Chinese nationals
shot”, April 30, 2014, Demerara Waves Online
News;
·
“ʽChinee’ beaten,
wounded at Canaan Garden on Saturday night – up to yesterday police had not
visited him in hospital” , August 26, 2015,
Guyana Chronicle; and,
· “Chinese restaurant murder…Cameras record
gunman killing waitress”, August 25, 2014,
KNews.
[30]
The applicants claim that these documents
directly challenge the finding that the common thread in the RPD and RAD
conclusions that the victims were targeted for economic reasons rather than
race. These articles refer to concerns among the Chinese community in Guyana
about the level of violence being experienced by their community; which makes
up only 1% of the overall population, and the lack of a prompt and effective
police response.
[31]
It is, as the respondent submits, trite law that decision makers are presumed to have considered all the
evidence before them: Simpson v Canada (Attorney General), 2012 FCA 82,
[2012] FCJ No 334 at para 10. They are not required to refer to every piece of
evidence and to explain how they deal with it. A failure to mention a
particular piece of evidence does not mean that it was ignored: Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011
SCC 62, [2011] SCJ No 62 at para 16.
[32]
It is only when a tribunal is silent on evidence
clearly pointing to an opposite conclusion that the Court may intervene and
infer that the tribunal overlooked the contradictory evidence when making its
finding of fact: Cepeda-Gutierrez, above, at paras 16-17.
[33]
In this instance, the RAD
was detailed in its analysis and thoroughly canvassed the record before it.
Although the RAD did not explicitly cite each and every piece of evidence, it
is clear from its reasons that important pieces of evidence were not ignored.
The RAD explicitly considered contradictory evidence in the record but
concurred with the RPD that the increase in attacks on Chinese businesses had
not risen to the point of becoming a trend. At paragraph 33 of the decision,
the RAD refers to documentation indicating “two murders
and two assaults reported in August 2015.” This corresponds with the
news articles cited by the applicants which, they assert, the RAD ignored.
[34]
Accordingly, I am not persuaded that the RAD committed
a reviewable error in its consideration of the evidence.
C.
Was the RAD’s nexus finding unreasonable?
[35]
The applicants submit that the RPD and the RAD
erred by misconstruing the evidence; disregarding evidence revealing racial
motives as well as the persecution of Chinese nationals in Guyana.
[36]
Included in the documentary evidence is a news
article dated March 6, 2013 reporting a statement by the Ministry of Home
Affairs acknowledging that there had been an increase in the level of violence
against Chinese residents. The statement associated the violence with a
reaction to political developments including decisions by the government to
encourage Chinese investment in Guyana. It includes these comments.
The Ministry wishes to bring to the
attention of the public that it has not gone unnoticed that this sudden surge
in criminal attacks against members of the Chinese community in Guyana
originated from and coincides with a politically inspired and orchestrated
campaign by known opposition elements. This campaign is characterized by
sustained and systematic efforts of vilification, criminalization and
xenophobic in character aimed primarily against the Chinese community. [emphasis
added]
[37]
This response, the article states, appears to
have been in relation to the government allowing Chinese-only labour on the
construction of a new hotel in Kingston funded by Chinese investment. That may
indicate that the sudden surge of violence against the Chinese community may be
temporary in nature and not sustained. A contributing factor mentioned in the
article is that the attacks have been directed against businesses that conduct
cash transactions as opposed to those involving credit or debit cards.
[38]
A 2015 United States Department of State report included
in the record notes that “[w]hile incidents of violent
crime appear not to be racially motivated, political differences tend to run
along racial divisions”. This is a reference to the continuing tensions
between the Afro-Guyanese and Indo-Guyanese communities.
[39]
The applicants contend that this evidence establishes
persistent attacks on the Chinese community. Therefore, there is a “reasonable chance” or “more
than a mere possibility” that the applicants would be persecuted based
on their race if they returned to Guyana. However it was conceded on behalf of
the applicants at the hearing that the record does not disclose what the crime
rate is involving the Chinese community in Guyana as opposed to that of the
larger communities. As noted above, the Chinese community makes up only 1% of
the overall population of Guyana. Evidence that demonstrates that they
experience a disproportionate level of violence may have led to an alternate
conclusion by the RPD and RAD.
[40]
The statement issued by the Home Affairs
Ministry is the strongest piece of evidence supporting the applicants’
position. However, it does not, in my view, contradict the conclusion drawn by
the RPD and RAD about the motivation for the attacks on Chinese-Guyanese
business people being economic.
[41]
The applicants acknowledged that business owners
in Guyana were targets of crime, as they were perceived to have money. This is
reflected in the fact that, with one exception, the news articles relied on by
the applicants refer to attacks on businesses which could be expected to have large
quantities of cash on their premises such as restaurants and supermarkets.
[42]
The one exception reported in the articles is an
attack on a man of apparent Chinese ethnicity. In that instance, the victim had
become involved in a street dispute with a woman who then engaged the services
of her brothers to administer a beating. There is nothing in the article that
indicates that the attack was motivated by the victim’s ethnicity.
[43]
The only other evidence of race-based
discrimination is the principal applicant’s account of having water thrown upon
her and her son by two individuals who shouted racial slurs at them. While that
behaviour was deplorable, it does not amount to persecution.
[44]
The documentary evidence as a whole provides ample
examples of perpetrators targeting Indo-Guyanese as well as Chinese businesses
because of the general perception that the proprietors are wealthy. The
evidence reviewed by the RAD suggested that serious crimes, including murder
and armed robbery, are common occurrences in Guyana.
[45]
Based on the evidence in the record it was open
to the RAD to find that the crimes suffered by the applicants were economically
rather than racially motivated. It was not unreasonable
for the RAD to conclude that the risk faced by the applicants is one that is
generally faced by others in Guyana. That conclusion fell within the range of
possible and acceptable outcomes.
D.
Was the RAD’s finding of state protection
unreasonable?
[46]
The applicants briefly mention in their written
argument that the RAD’s finding on state protection was not an issue that was
determined by the RPD. They submit that it is a reviewable error for the RAD to
make a finding on issues not raised by the RPD, unless it gives the appellant
an opportunity to respond with submissions or evidence: Ojarikre v Canada
(Minister of Citizenship and Immigration), 2015 FC 896, [2015] FCJ No 909 [Ojarikre].
[47]
This argument was not pressed at the hearing, as
counsel preferred to focus on the substantive merits of the issue. As noted
above, the issue had been raised in the applicants’ Appeal Memorandum. Unlike Ojarikre,
the RAD did not confirm the decision of the RPD on
another basis. I would add, although it was not argued by the applicants, that this is not a case where the RAD chose to confirm the RPD’s decision
on another basis without making an express finding that the RPD had erred as in
Angwah v Canada (Minister of Citizenship and Immigration), 2016 FC 654.
[48]
Here the RAD Member confirmed the RPD’s findings
on the nexus with race issue, but added that, in the alternative, the
presumption of state protection was not successfully rebutted by the
applicants. The RAD’s independent assessment of the record remained properly
within the parameters discussed by the Federal Court of Appeal in Huruglica,
above, at paragraphs 78 and 103.
[49]
The applicants do not question the RAD’s finding that Guyana is a relatively functional democratic
state. They agree that the presumption of state protection applies and must be
rebutted. They submit, however, that the objective
country condition evidence suggests that there is inadequate state protection
in Guyana: EB v Canada (Minister of Citizenship and Immigration), 2011
FC 11, [2011] FCJ No 135 at paras 9-10 [EB]; Persaud v Canada
(Minister of Citizenship and Immigration), 2010 FC 850; [2010] FCJ No 1057
at para 23.
[50]
The applicants submit
that the RAD ignored relevant evidence suggesting that police corruption in
Guyana is extensive and that their response to crime is largely ineffective.
They also suggest that the RAD failed to consider whether Chinese citizens
would receive lesser service and protection by the police because of racism.
The applicants contend that the evidence supports a finding that they would not
receive adequate state protection upon their return to Guyana.
[51]
The RPD readily acknowledged that the evidence
of state protection in Guyana is mixed at best. The RAD
discussed at some length the various problems relating to police corruption and
evidence indicating the existence of widespread violence in Guyana. However, the key issue for the RAD, as well
as the RPD, was the lack of detail in Ms. Su’s testimony about calling the
police coupled with the lack of any evidence that the applicants had made any further
efforts to access state protection.
[52]
The five robberies occurred over a ten year
period. There was no evidence that would suggest that attempts were made by the
applicants during that time period to exhaust all possible avenues of
protection available to them. Moreover, there is no evidence to suggest that
the police response to the robberies, or lack thereof, was motivated by racism.
[53]
On the facts of this case, the applicants failed
to discharge their onus in seeking state protection. It was, therefore, open to
the RAD to conclude that the applicants failed to rebut the presumption.
[54]
As the parties agreed that this matter turned on
its facts, no serious questions of general importance were proposed for
certification and none will be certified.
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