Docket: IMM-3112-16
Citation:
2017 FC 243
Ottawa, Ontario, February 28, 2017
PRESENT: The
Honourable Mr. Justice Southcott
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BETWEEN:
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WUFEI HUANG SU
(A.K.A. WU FEI HUANG SU)
ERIC SU
SIMON SU
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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.
Overview
[1]
This is an application for judicial review of a
decision by the Refugee Appeal Division [RAD] dated June 28, 2016, confirming
the Refugee Protection Division [RPD] decision which determined that the
Applicants are not Convention refugees pursuant to section 96 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA] nor persons in need of
protection pursuant to section 97 of IRPA.
[2]
For the reasons explained in greater detail
below, this application is dismissed, because the Applicants’ arguments related
to the RAD’s credibility and nexus findings do not represent a basis for the
Court to find the RAD’s decision unreasonable.
II.
Background
[3]
The principal Applicant, Wufei Huang Su, is the
mother of the minor Applicants, Eric and Simon Su. All three are ethnic Chinese
citizens of Guyana and claim fear of persecution in Guyana on the basis of
their race. Ms. Su went to Guyana in December 2000 as a visitor and
subsequently met her husband, also a Chinese national. They were married in
February 2007, and had their two sons in 2009 and 2011. In 2007, Ms. Su’s
husband opened a Chinese restaurant in Georgetown connected to their home. In
May 2011, the couple became naturalized citizens of Guyana.
[4]
In June 2011, while pregnant with her second
son, Ms. Su was robbed by two Guyanese men. The Applicants submit that violence
in Guyana was on the rise throughout 2013 and 2014. A carwash located at the
back of their property was robbed, and in March 2014, Ms. Su learned that a
Chinese restaurant had been robbed and the owner seriously injured.
[5]
On August 6, 2015, their own restaurant was
broken into by several Guyanese men. The minor Applicants witnessed their
mother being beaten into unconsciousness. When she regained consciousness, she
realized that her husband had been killed. Ms. Su gave information to the
police and they investigated, but no one has been arrested for the attack and
the murder of her husband.
[6]
After her release from the hospital, the
Applicants stayed at the home of a friend, Ms. Jian Ping Che, in Georgetown.
Ms. Su says that Ms. Che informed her that two black Guyanese men had visited
her home and asked whether a Chinese woman and two children lived there. Ms.
Che denied this and the men left.
[7]
Ms. Su then hired a smuggler to help her and her
children flee Guyana. They left Guyana on September 17, 2015, and first went to
the US on transit visas before arriving in Canada and claiming refugee status.
Their claim was heard on January 8, 2016 by the RPD, which issued a negative
decision on March 3, 2016, finding that the Applicants had not established a
serious possibility of persecution on a Convention ground, or that, on a
balance of probabilities, they would personally be subjected to a danger of
torture, or face a risk to life, or risk of cruel and unusual treatment or
punishment, upon return to Guyana. The Applicants appealed this decision to the
RAD, which confirmed the RPD’s conclusions in the decision that is under review
in this application.
III.
Issues
[8]
The Applicants articulate the following issues
for the Court’s consideration:
A. Did the RAD err in finding that Ms. Su was not credible with respect
to whether the two black Guyanese men visited her friend’s home to look for
her?
B.
Did the RAD err in finding that there was no
nexus between the Applicants’ race and the violence that they witnessed or
suffered?
IV.
Standard of Review
[9]
The Respondent submits that the standard of
reasonableness applies to the Court’s review of decisions of the RAD. The Applicants have taken no particular position on
standard of review. I agree that the Court should apply the standard of
reasonableness to the issues raised in this application for judicial review (see
Canada (Citizenship and Immigration) v Huruglica, 2016 FCA 93, at para 35).
V.
Analysis
A. Did the RAD err in finding that Ms. Su was not credible with respect
to whether the two black Guyanese men visited her friend’s home to look for
her?
[10]
The RAD found Ms. Su credible regarding the
circumstances of the robbery, beating and murder on August 6, 2015. However, the
RAD found that she was not credible with respect to the evidence that two black
Guyanese men had come looking for her at the house of her friend, Ms. Che, and
found on a balance of probabilities that this visit by the alleged perpetrators
of the crime never occurred. Its reasons for the adverse credibility finding
include the fact that Ms. Su did not report this incident to the police or make
efforts to move her family to another location.
[11]
The Applicants challenge the reasonableness of
the RAD’s credibility analysis and also argue that the RAD erred in failing to
admit into evidence on the appeal a letter from Ms. Che, dated March 29, 2016, in
which she referred to the alleged visit by the two black men at her home and
further stated that she had seen the two men on other subsequent occasions in a
taxi parked near her house. The RAD accepted that this letter met the test in
s. 110(4) of IRPA for the admission of new evidence on appeal, as it post-dated
the RPD decision of March 3, 2016. However, relying on the additional analysis
prescribed by the Federal Court of Appeal in Singh v Canada (Citizenship and Immigration), 2016
FCA 96, the RAD did not accept the letter into evidence because of concerns about
its credibility. Again, the Applicants challenge the RAD’s credibility analysis.
[12]
It is not necessary for the Court to reach a
conclusion on these credibility arguments. The RAD found on a balance of
probabilities that Ms. Su’s allegations that she was being sought by the two
perpetrators of the murder of her husband were not credible. However, the RAD also
concluded that, even if the RAD had found Ms. Su’s allegations credible, it was
speculative on her part that the two people who allegedly came looking for her
were the perpetrators of that crime.
[13]
The Applicants’ written submissions did not
challenge this latter conclusion. However, when raised by the Court at the
hearing of this application, the Applicants referred to the narrative in
support of Ms. Su’s Basis of Claim form [BOC ] and in particular an amendment
in which she stated that, while in hiding, her friend told her the two unknown
Guyanese men had asked her if a Chinese woman with two children lived at her
home. The Applicants submit that the knowledge by these men of the composition
of her family and the fact she was in hiding demonstrate a relationship between
them searching for her and the crime.
[14]
I cannot find, based on this argument, that it
was outside the range of possible, acceptable outcomes, and therefore
unreasonable, for the RAD to conclude that Ms. Su was speculating that the two
people who were allegedly looking for her were the perpetrators of the initial
crime. As such, even if the RAD’s credibility findings were overturned, this conclusion
by the RAD would remain and would undermine the Applicants’ argument that the
fact the perpetrators of the crime were looking for Ms. Su, to eliminate
witnesses, personalizes the Applicants’ risk under the section 97 analysis. The
Applicants’ arguments related to the RAD’s credibility findings therefore do
not represent a basis for the Court to find the RAD’s decision unreasonable.
B.
Did the RAD err in finding that there was no
nexus between the Applicants’ race and the violence that they witnessed or
suffered?
[15]
In conducting its section 96 analysis, the RAD
found that criminality in Georgetown, Guyana was extremely high but that there
was no documentation in the article submitted by the Applicants to suggest that
ethnic Chinese were being targeted because of their race. The RAD noted that
the articles seemed to focus on the fact that people of perceived wealth were
targeted. The RAD found on balance that the ethnic Chinese community is not
targeted because of their ethnicity; rather they are targeted because of
perceived wealth.
[16]
The Applicants argue that the RAD relied on
outdated case law in reaching its conclusion, as it referred to Bacchus v.
Canada (Minister of Citizenship and Immigration), 2004 FC 821 and Vickram
v. Canada (Minister of Citizenship and Immigration), 2007 FC 457 as support
for the finding that ethnic Chinese are not specifically targeted in Guyana. I
agree with the Applicants’ position that country conditions can change and that
each claim for refugee protection must be assessed on its own merits. However,
I do not consider it to be a reviewable error for the RAD to have referred to
the support of these authorities, as it also conducted its own analysis of the
documentary evidence.
[17]
The Applicants also argue that the RAD erred by
engaging in a selective review of the country condition evidence before it. In
support of this position, the Applicants rely principally on two articles that
were in evidence. The first, entitled “Chinese
Nationals being targeted; Police Patrols to increase – Rohee” [the Rohee
Article], refers to a surge in criminal attacks on Chinese nationals and
businesses and reports that Home Affairs Minister Clement Rohee has drawn the
conclusion that the business people in the Chinese community appear to be easy
targets because they are foreigners. The second article, entitled “Guyana’s new president should avoid being baited by Chinese
investors, says author”, reports on opinions expressed by a Guyana born
author, researcher and journalist, who describes Chinese investors in Guyana as
commercial exploiters who are plundering the country and suggests that the
President of Guyana should not meet with them.
[18]
I find no merit to the Applicants’ arguments
surrounding the documentary evidence. This is the same argument that was advanced
before the RAD in the Applicants’ appeal of the RPD’s decision. The RAD
expressly referred to the two above-referenced articles and to the Applicants’
submission that the RPD had engaged in a selective review of the contents of
those articles. However, the RAD then reached the conclusion that the ethnic
Chinese community is targeted because of perceived wealth, not because of their
ethnicity. With respect to the second article referenced above, the RAD
specifically noted that the author is described as “sometimes
controversial”, that the article represents his opinions, and that it
does not negate the documentation regarding the general criminality of
Georgetown and the focus on business owners. The RAD’s conclusions from the
review of the documentary evidence are within the range of possible, acceptable
outcomes and do not represent a basis for the Court to interfere with the
decision.
[19]
The Applicants have also advanced an argument
based on Gonzales v. Canada (Minister of Citizenship and Immigration), 2011
FC 648 [Gonzales], which considered the possibility that violence can
have mixed motives. In that case, the Indo-Guyanese applicants claimed refugee
protection due to their fear of ethnically motivated violence at the hands of
Afro–Guyanese criminal gangs. Justice Zinn noted at paragraph 29 that, where at
least one of the motives for attacks is based on a Convention ground, nexus
might be established. Because there was some evidence before the RPD in that case
as to the possibility of mixed motives, the Court found that the RPD had erred
in failing to consider whether there were mixed motives and, if so, whether the
motives could constitute the Convention nexus required.
[20]
My conclusion is that Gonzales does not
assist the Applicants in supporting their position that the RAD’s decision was
unreasonable, because the evidence before the RPD in that matter, and the RPD’s
reasoning that resulted in its decision being set aside, are quite different
than in the present case. In Gonzales, there was evidence of racial
slurs made against the applicants during the incidents they alleged, which
supported the conclusion that the motive was not purely economic. There is no
similar evidence in the present case. Justice Zinn found the RPD’s
conclusion, that the incidents in that case were economically and not racially
motivated, to be unreasonable, because it approached the issue of motive as a
yes or no question. The RPD had referred to opinions being divided over whether
Indo-Guyanese are disproportionately targeted by criminals because of their
economic or racial status and then preferred the explanation of economic
influence. In the present case, the RAD did not conclude that there were
divided opinions on motive and improperly choose one without deciding whether
the other was also applicable. Rather, it reviewed the evidence and reached the
conclusion that the motive was economic.
[21]
Finally, the Applicants raised at the hearing of
this application an argument that the RAD failed to consider the possibility
that the Convention nexus resulted from racially motivated complicity of the
police in the crimes perpetrated against the Applicants and the Chinese
community. They rely on the decision in Cao v. Canada (Minister of
Citizenship and Immigration), 2016 FC 1393 [Cao], in which Justice
Bell held a decision by the RAD to be unreasonable, because it did not address
the issue whether the applicants in that case became soft targets because of
police racism against persons of Chinese ethnicity.
[22]
The Respondent noted that this argument had not
been raised prior to the hearing of this judicial review application but
nevertheless made submissions in response. The Respondent acknowledged that the
Applicants’ written submissions to the RAD made some allusion to lack of attention
given by the police to crimes against ethnic Chinese Guyanese. Those
submissions referred to the Rohee Article alluding to the fact that the
Guyanese police have not focused their attention on crimes that are perpetrated
against ethnic Chinese, as a result of which Chinese Guyanese are particularly
easy targets of crime. The Applicants submitted that this was consistent with
their experience, in that Ms. Su had reported her husband’s murder to the
police and followed up with them on three occasions, but she had seen no
indication that they were investigating the murder.
[23]
However, the Respondent argues that this
submission represents only one paragraph in the Applicants’ overall argument
and submits that Cao is distinguishable, because that case involved
specific allegations and evidence of racism on the part of the police, who had
repeatedly made statements to the effect that Chinese people always brought a lot
of trouble.
[24]
In response, the Applicants refer to the
narrative in Ms. Su’s BOC, in which she stated she has no faith in the ability
of the Guyanese police to protect the Applicants. As noted by the RAD, Ms. Su
made contact with the Guyanese police three times before she left Guyana and
three more times after her arrival in Canada. The Applicants submit that it is
understandable that repeatedly being told only that the police were
investigating the crime would not give her confidence in the ability of the police
to provide protection. The Applicants also refer to an article in the
documentary evidence which described a shooting of a Chinese national in
Georgetown during an attempted robbery. The article reports another Chinese
national expressing disappointment that the police were not on the road in
usual numbers.
[25]
I agree with the Respondent’s submission that
the evidence in the present case differs significantly from that in Cao.
There is nothing in Ms. Su’s evidence of her own personal experiences which
appears to suggest that the Guyanese police were racially motivated not to
investigate the murder of her husband. I also do not read the article reporting
on the attempted robbery and shooting of the Chinese national as supporting a
conclusion that the police were deliberately providing inadequate protection to
ethnic Chinese in Guyana. Nor does the Rohee Article, which the Applicants
reference in their submissions to the RAD, support such a conclusion. Rather,
it reports Minister Rohee stating that, in response to the surge in criminal
attacks against Chinese nationals and businesses, the Chinese business
community has been assured by the police that patrols will intensify in the
Georgetown area.
[26]
In Cao, Justice Bell found that the RAD
had conflated the concepts of state protection and persecution based on race, by
concluding that the evidence of comments from police with racial undertones
represented localized failures which did not support a finding that Guyana did
not provide adequate state protection. The Court therefore set the RAD’s
decision aside, because it failed to assess the evidence of police racism in
establishing a nexus to a Convention ground. Given the different evidentiary
record before the RAD in the case at hand, I cannot conclude that the fact the RAD
did not engage in the sort of analysis, which Justice Bell found to be required
in Cao, makes the RAD’s decision in the present case unreasonable.
[27]
Having identified no reviewable error on the
part of the RAD, this application for judicial review must be dismissed.
Neither of the parties proposed a question for certification for appeal, and
none is stated.
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