Docket: IMM-410-17
Citation:
2017 FC 823
Ottawa, Ontario, September 11, 2017
PRESENT: The
Honourable Madam Justice Strickland
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BETWEEN:
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HUA LI
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YUE FANG
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QIAOYA FANG
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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]
This is an application for judicial review of
the decision of the Refugee Appeal Division (“RAD”) of the Immigration and
Refugee Board of Canada, dated December 27, 2016, which confirmed the decision
of the Refugee Protection Division (“RPD”) that the Applicants are not
Convention refugees or persons in need of protection pursuant to s 96 and 97,
respectively, of the Immigration and Refugee Protection Act, SC 2001, c
27 (“IRPA”).
Background
[2]
The Applicants are a family of three, Li Hua (“Principal
Applicant”), her husband, Yue Fang (“Secondary Applicant”), and their
minor child. They are all citizens of China. They claim that the adult
Applicants are being sought by the Chinese Public Security Bureau (“PSB”) for
denouncing corrupt Chinese government officials in connection with compensation
for the expropriation of a village home in Hubei Province, owned by the
Principal Applicant and occupied by her parents.
[3]
The Applicants claim that in September 2015, the
Principal Applicant, who lived in Beijing, went to meet with the villagers.
She and four other people were elected to organize other villagers regarding
the issue of compensation. The villagers learned that government officials at
different levels had misappropriated much of the compensation money. A
complaint was filed with various government departments seeking fair
compensation and serious punishment for the corrupt officials involved, but
this was ignored. On October 1, 2015, two hundred villagers organized a sit-in
demonstration at city hall. There, all of the representatives, including the
Principal Applicant, were taken to the police station and detained for four
days where they were warned not to cause more trouble, beaten, and shouted at.
The Principal Applicant returned to Beijing after her release. Efforts
were made to publicize the problem but articles posted on the internet were
deleted and internet accounts shut down. The Applicants claim that media
outlets and lawyers were too scared to take on the cause.
[4]
The Secondary Applicant returned to China from a
visit with his parents in Canada in November 2015. It was decided to file a
petition with the State Bureau of Letters and Calls in Beijing (“State
Bureau”), in the belief that officials in Beijing would not act with the same
level of impunity. The Secondary Applicant took the signed petition to the
State Bureau on December 14, 2015. He claims that while there waiting in
line, people in plain clothes purporting to be police officers arrived and
seized the petition from him. The Secondary Applicant and five or six
other petitioners were taken to an unknown “black prison”.
There he was detained for four days, admonished by officials for staining the
appearance and image of a capital city and disrupting its safety and stability,
punched and kicked, and was warned that further violation would result in
imprisonment. The petition was deemed illegal as the correct procedure would
have been to file it with the provincial government before approaching the
central government. The Secondary Applicant returned to the State Bureau on
December 30, 2015, and successfully filed a second petition.
[5]
The Applicants came to Canada on January 25,
2016, to spend Chinese New Year with the Secondary Applicant’s parents. They
claim that on February 16, 2016, PSB officers visited the Principal Applicant’s
parents, asking the Applicants return to China from Canada and surrender. The
PSB said the Applicants had incited and organized people to unlawfully assemble,
attacked the government in a petition, and spread rumours to ruin social
stability. The Principal Applicant’s parents also informed her that the other
four village representatives had been arrested by the PSB. Not long after the
PSB visited the Principal Applicant’s parents, a cousin who was taking care of
the Applicants’ home in Beijing received letters there from the adult
Applicants’ employer terminating their employment. The Applicants then claimed
protection in Canada.
RPD Decision
[6]
The RPD held that the determinative issue was
credibility. It drew negative inferences from the Secondary Applicant’s
evidence that he returned to the same State Bureau to file a second petition,
having been detained and assaulted a few days before to the point that he
feared for his life; from his ability to file a successful petition on
December 30, 2015, following the aggressive and pre-emptive actions
taken by the Chinese authorities during his first attempt; regarding the
Secondary Applicant’s testimony surrounding his detention in a “black prison” due to internal inconsistencies in his
testimony; and, from the Applicants’ evidence that they travelled to Canada for
leisure purposes in the absence of corroborative evidence where such material
was reasonable to expect.
[7]
The RPD found that the cumulative negative
credibility inferences concerning central aspects of the claims undermined the
credibility of the Secondary Applicant generally, which lack of credibility
extended to all aspects of the claim, including the documentary evidence, which
was accordingly assigned little weight. The RPD also noted the availability of
fraudulent documents in China. As to the documents pertaining to the land
appropriation, these did not indicate, in and of themselves, that the adult
Applicants had protested against the Chinese government and the subsequent
events. Overall, the RPD was not satisfied that the adult Applicants took part
in protests, petitioning, or other activities that were contrary, or perceived
to be contrary, to the Chinese government. Therefore, the RPD was not
satisfied that the Chinese authorities were seeking them because of those
actions and their claims were not established.
Decision Under Review
[8]
The two issues raised on appeal to the RAD were
whether the RPD erred in assigning little to no weight to independent
documentary evidence corroborating their allegations, and in making its global
negative credibility finding. No new evidence was submitted, nor was an oral
hearing requested.
[9]
The RAD held the RPD did not err in finding, on
a balance of probabilities, that the Secondary Applicant would not have sought
to petition the State Bureau a second time after being arrested, detained, and
beaten. The RAD was not persuaded that the case of Tshibola Kabongo v
Canada (Citizenship and Immigration), 2012 FC 313, was relevant to the
Applicants’ circumstances as they submitted. This was because the Secondary
Applicant was not engaged in political dissent against an authoritarian
government, but was merely seeking a larger payment for his in-laws. Further,
the Secondary Applicant, who held a management position in a state-owned
enterprise, would not have risked his livelihood or his existing arrangements
to travel with his family to Canada and the United States by seeking to file a
petition a second time.
[10]
As to the documentary evidence that government
security officials forced petitioners to return to their home provinces, the
RAD stated that the Secondary Applicant did not participate in the local
petitioning and demonstrations because he was in Canada during this time. The
Secondary Applicant was also a resident of Beijing and provided no evidence
that he was known to officials in Hubei province as the carrier of a petition
concerning a locality in that province. The RAD also found that Hubei officials
would be informed after the first petition was brought to the attention of the
central government, but that it strained credulity that they would have been
made aware of the first petition as it was never filed.
[11]
Further, that the Secondary Applicant would be forcibly
removed while in line at the State Bureau also strained credulity. While the
documentary evidence indicated retaliation against petitioners, the RAD found
on a balance of probabilities that such actions would not take place inside a
central government office responsible for receiving petitions. While the RAD
acknowledged that security officials from a province in Hubei might be sent to
Beijing to constrain petitioners, it found it strained credulity that such
officials would not only arrest and detain a person carrying a petition
involving that locality, but also other petitioners from a number of other
jurisdictions.
[12]
The RAD also found that if a locality like Hubei
was so concerned about the petition and was aware that the Secondary Applicant
was the petitioner, it was likely, on a balance of probabilities, that he would
have been prevented from petitioning a second time.
[13]
The RAD concurred with the RPD that the
Secondary Applicant’s testimony concerning “black
prisons” was confusing, changing, and inconsistent. Overall, the RAD
concurred with the RPD that the Secondary Applicant’s evidence lacked
truthfulness regarding petitioning the State Bureau twice, being detained
and beaten, and being held in a “black prison”.
Further, the RAD agreed with the RPD’s negative inference respecting the
Applicants’ purpose for coming to Canada in the absence of corroborative
evidence, other than their United States Visas which the RPD had not addressed.
The RAD found expecting corroborative evidence was reasonable in the
circumstances.
[14]
As to the treatment of the documentary evidence,
the RAD agreed with the Applicants that the RPD was obligated to consider the
documentary evidence the Applicants provided to corroborate their allegations.
The RAD then addressed each piece of the documentary evidence in turn. It
found no basis to challenge the authenticity of the Notice of Detention
indicating government officials detained the Principal Applicant for four days because
she participated in a rally concerning the expropriation of village land.
However, this did not, in and of itself, corroborate the Applicants’ allegation
that the Chinese authorities currently pursue them. As to the Notice of Arrest
concerning the Secondary Applicant, the RAD found this to be “clearly fraudulent”. The document indicated that the
Secondary Applicant was arrested on February 16, 2016, however, the Applicants
were in Toronto on that date and the Secondary Applicant was allegedly
arrested and detained on December 14, 2015. The Notice of Arrest therefore
enhanced the RAD’s concern as to the credibility of the Applicants’
allegations. The fraudulent Notice of Arrest also raised doubt about the
authenticity of the two termination of employment notices (“Employment
Termination Notices”).
[15]
The RAD also found that the PSB would have
likely issued a written summons and arrest warrant. The lack of summons or
arrest warrant raised significant doubt that the adult Applicants were being
pursued by the PSB because of their alleged activities (Sun v Canada
(Citizenship and Immigration), 2008 FC 1255).
[16]
The RAD concluded that the Applicants failed to
establish that they are being sought by the Chinese authorities and advanced insufficient
credible evidence to make a positive finding on the appeal.
Issues and Standard of Review
[17]
The Applicants identify two issues, being
whether the RAD erred in its credibility assessment and in rejecting the Applicants’
documentary evidence. Findings regarding credibility attract the standard of
reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47; Owochei
v Canada (Citizenship and Immigration), 2012 FC 140 at para 20; Li v
Canada (Citizenship and Immigration), 2015 FC 354 at para 9). At
the hearing before me, the Applicants submitted that the RAD’s treatment of the
Notice of Arrest raises an issue of procedural fairness, attracting the
correctness standard. The Respondent did not take issue with this and I agree
that correctness is the standard of review for matters of procedural fairness (Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43; Mission
Institution v Khela, 2014 SCC 24 at para 79).
[18]
In my view, the determinative issue in this
matter is the RAD’s treatment of the documentary evidence.
Applicants’ Position
[19]
The Applicants submit the RAD erred in
dismissing their supporting documents. The RAD found the Notice of Arrest to
be “clearly fraudulent” because it was intended
to prove the arrest of the Secondary Applicant, yet the date of the arrest was
stated to be February 16, 2016, and the Secondary Applicant was in Canada at
that time. The Applicants submit that the RAD wholly misread the document,
which clearly stated that the arrest was of Feng Zou, who was one of the
village representatives who had assisted with the mass rally and the petition.
The arrest date also coincided with and corroborated the Applicants’ claim that
the other village representatives were arrested on February 16, 2016. The
Notice of Arrest also stated the reason for the arrest, being the organization
of a mass rally. The RAD should have made inquiries to verify who the Notice
of Arrest was referring to. Moreover, the Applicants were not given an
opportunity to address this concern, which the RPD did not address, resulting
in a breach of the duty of fairness as the RAD had the burden of ensuring that
issues which are determinative of the claim are raised with the Applicants (Sarker
v Canada (Citizenship and Immigration), 2014 FC 1168 para 19 (“Sarker”)).
In any event, an incorrect date in and of itself is not sufficient to support a
finding that the document was “clearly fraudulent”
since an official document might still contain a date error.
[20]
The RAD also gave the Employment Termination
Notices no weight solely because of its concerns with the fraudulent Notice of
Arrest. The Applicants submit that the Employment Termination Notices outlined
the reasons for the dismissals and therefore offered further proof of the
Applicants’ issues with the government, had the RAD accepted them. The RAD
also found no reason to doubt the Detention Notice as proof that the Principal
Applicant organized the rally and was detained. The Applicants submit the
finding of fraud eliminated any credibility they could have gained from the
documents that proved other parts of their story and unfairly deprived them of
the truth of their testimony.
[21]
Having accepted that the Principal Applicant had
been detained, the RAD also erred in concurring with the RPD that, while there
was evidence of land expropriation, the Applicants had failed to show that
their involvement put them at risk of persecution. There was no basis for
dismissing the significance of this document when it went to the core of the
claim.
[22]
The Applicants’ submit that a breach of
procedural fairness arises from the RAD raising the absence of a summons. The
RPD did not address this issue and the Applicants were therefore not given an
opportunity to do so. Further, the RAD’s finding ignores more recent case law
which recognizes that issuing summons in China varies regionally (Zeng v
Canada (Citizenship and Immigration), 2014 FC 1060 at paras 26-28).
Respondent’s Position
[23]
The Respondent submits that the Applicants have
not demonstrated the RAD unreasonably assessed their documentary evidence. As
to the Notice of Arrest that the RAD found to be clearly fraudulent, the
Respondent acknowledges that the document was for Feng Zou, and not the
Secondary Applicant as the RAD thought. However, in the written submissions of
the Applicants’ former counsel to the RAD, it was stated that the document
refers to “The Appellant’s arrest as a result of filing
of a petition in Beijing”. Nor did the Applicants’ former counsel explain
who Feng Zou was or how the February 2016 arrest supported their claim.
According to the Respondent, the RAD cannot be faulted for failing to notice
that the Notice of Arrest was issued to another person in these circumstances.
Accordingly, the RAD reasonably found the document to be fraudulent and, by
extension, to doubt the authenticity of the Employment Termination Notices.
The RAD was not under a duty to raise the issue with the Applicants and the
error is of no consequence because the RAD had already found the Applicants’
story of being a petitioner to be not credible.
[24]
The Respondent also distinguishes Sarker and
submits the Applicants already raised the failure of the RPD to consider
documentary evidence that independently corroborated their claims as capable of
supporting a positive determination. The Applicants knew that the RPD doubted
their credibility and the case to be met. Since the Applicants raised the
question of independent evidence, it was open to the RAD to take into account
the absence of a summons, it was under no duty to raise this with the
Applicants, and its negative inference was reasonable.
Analysis
[25]
In my view, it is apparent that the RAD made an
error of fact regarding the Notice of Arrest, which clearly states that it is
issued to Feng Zou’s family members. Further, that Feng Zou was arrested
on February 16, 2016 “due to his organizing a mass
rally and spreading rumours to disturb social stability, as well as
leapfrogging a petition against the people’s government”. The
Translator’s Declaration for the Notice of Arrest describes the document
translated as the “Notice of Arrest from the People’s
Republic of China re Hua Li’s Fellow Villager, Feng Zou”. Further, the
Basis of Claim form of the Principal Applicant states that on February 16, 2016,
her parents advised her that the PSB visited them on that day and asked her
parents to tell the Applicants to return to China and surrender. The PSB
alleged the Applicants incited and organized people to take part in an unlawful
assembly, attacked the government by means of a petition, and spread rumours to
ruin social stability. The Principal Applicant’s parents also told her that
the four other village representatives had been arrested. Additionally, the
December 25, 2015 petition states that “We are the
villagers, Yewei Yang, Hua Li, Feng Zou, Pengju Xiao and Hua Tong…”
and reports the named mayor and the property developer for allegedly embezzling
compensation money and depriving village home owners of the state confirmed
amount. The petition further notes that the representatives, on behalf of the
villagers, reported the situation, but the government did not respond. Consequently,
the representatives organized a sit-in, which the police disbursed, detaining
the representatives for several days. The petition sought help from the
central government in upholding justice, investigating the local officials’
corrupt practices, and effecting political reform.
[26]
While it is true that former counsel for the
Applicants in written submissions to the RAD erroneously described the Notice
of Arrest as referring to the Appellant’s [Secondary Applicant] arrest as the
result of filing a petition in Beijing, unremarked upon by the RAD is that the
document clearly states that it concerns the arrest of Feng Zou, not the
Secondary Applicant. Had the RAD reviewed the Notice of Arrest, this would
have been apparent. Similarly, the Translator’s Declaration identified the
Notice of Arrest as pertaining to Feng Zou. Further, the petition, which was
also found on the record before the RAD, identified by name Feng Zou as one of
the five village organizers along with Hua Li, the Principal Applicant.
Accordingly, I do not agree with the Respondent that it was reasonable for the
RAD to find the Notice of Arrest to be clearly fraudulent based on its reliance
on, and failure to notice the error in, the Applicants’ written representation.
Nor that it was reasonable to expect former counsel would, having made this
error, then explain who Feng Zou was or how his or her arrest was relevant.
[27]
Because the RAD found the Notice of Arrest to be
fraudulent, it also found that this enhanced its concerns as to the credibility
of the Applicants’ allegations, specifically noting the Secondary Applicant’s
allegation that he was arrested and detained as a result of his petitioning the
State Bureau on December 14, 2015, and held in a “black
prison”. However, as noted above, the Notice of Arrest did not pertain
to the Secondary Applicant. Thus, the enhanced credibility concerns regarding
the Secondary Applicant were based on the finding of the Notice of Arrest to be
fraudulent were also unreasonable. Further, the RAD found no reason to doubt
the Detention Notice as proof that the Principal Applicant organized the rally
and was detained. Thus, to the extent that the finding that the Notice of
Arrest was fraudulent negatively impacted the credibility of the Principal
Applicant in that regard, this too was unreasonable. Similarly, the RAD doubted
the authenticity of the Employment Termination Notices for the adult Applicants
based on its finding that the Notice of Arrest as fraudulent. This may have
significance because those notices stated the reasons for termination and
postdated the Applicants’ departure from China.
[28]
In my view, the RAD’s factual error is
reviewable as it served to improperly discount independent corroborating
evidence that could potentially have supported the Applicants’ claim and
improperly raised doubt as to the adult Applicants’ credibility (Malveda v
Canada (Citizenship and Immigration), 2008 FC 447 at para 24; Valtchev v
Canada (Minister of Citizenship and Immigration), 2001 FCT 776 at para 7).
In particular, the Notice of Arrest corroborates the Principal Applicant’s
claim that that her parents advised her that the four other village
representatives had been arrested after her departure for China. As I cannot
ascertain if the outcome would have been different had the error not occurred,
the matter must be remitted for consideration by a different RAD panel. Given
my conclusion in this regard it is not necessary to address the other issues
raised by the parties.
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