Date: 20101203
Docket: IMM-1723-10
Citation: 2010 FC 1225
Ottawa, Ontario, December 3,
2010
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
|
|
MIN ZHANG
YI ZHONG
|
|
|
|
Applicants
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGMENT AND
JUDGMENT
I. INTRODUCTION
[1]
The
Applicants are a mother and daughter from China who sought refugee status –
protection under sections 96 and 97 of the Immigration and Refugee Protection
Act, S.C. 2001, c. 27 (Act) because the mother (Applicant) was
threatened by her deceased husband’s family to share in her inheritance from
her late husband. Her application to the Immigration and Refugee Board (IRB)
was denied. This is the judicial review of that IRB decision.
II. FACTUAL
BACKGROUND
[2]
The
Applicant’s husband was in Canada as a skilled worker and had permanent
resident status. On January 16, 2006, he was killed here on his way to work.
[3]
The
Applicant claimed that her husband’s family, principally her father-in-law and
brothers-in-law, made her life difficult by obstructing her efforts to get to Canada with her
daughter. Most importantly, they threatened to harm her unless she gave them
$250,000 which they believed she was entitled to from her husband’s estate.
[4]
In
the face of the threats the Applicants came to Canada without the
knowledge of her husband’s family. Two years later the Applicants applied to
the IRB.
[5]
The
IRB concluded that in respect to the s. 96 claim, there was no nexus to a
Convention ground. The essence of the Applicant’s claim was the attempt to
extort money from her; not persecution based on gender or family violence.
[6]
With
respect to s. 97, the IRB found that the Applicants, after failing to file a
refugee claim for two years, applied for an H&C on the basis that their
dream was to remain in Canada, to obtain compensation that was pending
before the courts and to obtain a Canadian education. The Applicants claimed
they would have trouble re-establishing themselves in China. They never
expressed a fear of returning to China.
[7]
Based
on the above findings, the IRB concluded that the Applicants did not have a
subjective fear. It is apparent from the reasons that the IRB found the
Applicants’ story less than persuasive.
[8]
The
IRB then went on to consider state protection and concluded that that issue was
determinative. The state protection analysis was conducted in two parts. The
first part was a general state protection analysis in the context of s. 97 and
a fear due to extortion demands. In this analysis, the IRB found that the
Applicants had not provided clear and convincing evidence that state protection
was unavailable. The second part was an analysis of state protection, in the
alternative, on the assumption that the s. 96 finding was incorrect. Again,
the IRB found against the Applicants in part because of their failure to seek
state protection.
[9]
In
argument before the Court, the Applicants placed considerable reliance on the
erroneous nature of this alternative analysis of state protection.
III. ANALYSIS
[10]
Both
parties accept that the standard of review applicable to the issues in this
case is reasonableness because it is largely a fact driven decision. The Court
concurs with the standard of review (see Chaves v. Canada (Minister of
Citizenship and Immigration), 2005 FC 193, as read in conjunction with Dunsmuir
v. New
Brunswick,
2008 SCC 9).
[11]
Notwithstanding
the excellent argument of Applicants’ counsel focused particularly on the
second part of the state protection analysis, the difficulty with that position
is that it was an alternative analysis.
[12]
The
alternative state protection analysis, based on s. 96 grounds which are grounded
in domestic violence, is problematic. The critical areas of the Court’s concern
are the suggestion that the Applicants could have done more, both in China and in Canada, to engage
state protection.
[13]
In
that regard the IRB’s finding ignores the fact that the Applicants had less
than 48 hours between the time of the incident, where the Applicant was
physically threatened by her husband’s family, and the time of the flight to Canada. The
suggestion by the IRB that the Applicants should have engaged the Chinese
consulate appears more theoretical than practical in terms of securing state
protection.
[14]
However,
whatever the infirmities of that analysis may be, it was based on an
alternative finding under s. 96. The principal finding under s. 96, that this
was a case of extortion, not family violence, was a reasonable finding. While
the extortion was perpetrated by the Applicant’s in-laws, it was not the type
of domestic violence which the documentary evidence canvasses nor is it the
type commonly considered as such.
[15]
Having
identified the risk as one of extortion, the IRB’s s. 97 findings were
reasonable. The principal conclusion on state protection was that China had
structures in place, in principle and in practice, to provide protection for
this type of conduct and that the Applicants had failed to rebut the legal
presumption. That conclusion was reasonably open to the IRB on the evidence.
[16]
To
the extent that the alternative state protection analysis is unsustainable, it
is irrelevant. The principal conclusions were reasonable in these
circumstances.
IV. CONCLUSION
[17]
Therefore,
this judicial review will be dismissed. There is no question for certification.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review is dismissed.
“Michael
L. Phelan”
Email this Content