Date: 20101209
Docket: IMM-2812-10
Citation:
2010 FC 1263
Ottawa, Ontario,
December 9, 2010
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
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YONG QIANG YU
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS
FOR JUDGMENT AND JUDGMENT
[1]
The applicant seeks to
set aside the negative decision of an officer refusing his Pre-Removal Risk
Assessment (PRRA) application. He submits that the officer erred in law in
failing to provide adequate reasons regarding state protection in China and in failing to provide the applicant with an oral
hearing. He further submits that the decision is unreasonable.
[2]
I am not persuaded that
the officer committed the errors alleged or that the decision is unreasonable, and
therefore dismiss this application.
Background
[3]
The
applicant, a Chinese citizen, filed a PRRA application based on his fear of
drug traffickers in China.
[4]
In
2005, the applicant opened a hardware processing factory in En Ping, China. He
says that he discovered that a neighbouring factory was owned by a man with
connections to the government, police, and mafia. After becoming suspicious
about the neighbouring factory because of the strong smell it was producing, the
applicant picked up a pellet from a spilled package of goods that had fallen
off a pickup truck delivering goods to the neighbouring factory. The
applicant’s friend conducted an analysis of the pellet and determined that it
was the drug MDMA (ecstasy).
[5]
Mr.
Yu reported the drug manufacturing factory to the police. However, the police
were colluding with its owner and allegedly told him about the applicant’s
report. Two days after the applicant’s report, more than ten men came to the
applicant’s factory, beat him with wooden and metal batons, damaged his factory
equipment and threatened to burn down the factory and kill the applicant’s
family should he report to the police again. The men who assaulted the
applicant said they knew he had reported their boss to the police. The
applicant recognized some of the men as employees of the neighbouring factory
and observed that some of them had eagle tattoos on their left hands. As a
result of the beating, the applicant was hospitalized. He submitted the
medical report with his PRRA application.
[6]
After
this incident, Mr. Yu closed his factory and went into hiding. He made another
report to the police, with no effect, and then decided to report the drug
manufacturing to a higher level of police department, the Police Bureau of
Jiangmen City. He stated that after two months of investigation, on December
23, 2006, the Jiangmen police raided the factory and arrested its owner. The
raid was reported in the news, and the applicant submitted a news report with
his PRRA application.
[7]
The
applicant continued to be pursued by associates of the drug dealers. They
phoned him asking about his whereabouts and threatening to kill his family. On
January 1, 2007, four men came to his home when he was not there. The men
poured red paint on the front door, broke in and destroyed all of his
furniture, killed his dog, threatened to kill his uncle who was there at the
time, and told him that they had men everywhere, even overseas. The men
identified themselves as members of the Big Circle gang.
[8]
The
uncle reported the incident to police, and three policemen came to the
applicant’s home to investigate and said they would investigate further. Mr.
Yu did not return to his home, but his uncle told him that a police car came
and “browsed around [the applicant’s] home area once in a while but that after
3 to 4 days, the police car didn’t come at all.”
[9]
The
applicant moved to Jiangmen on January 4, 2007, where he worked at a factory
and lived in the factory’s dormitory. While the applicant was away traveling
for work, men came and asked his roommate about his location. One of the men
had an eagle tattoo on his hand. The men told the roommate that if they could
not find the applicant, they would go after his son. The applicant suspected
that the gang members found him through their connections with police.
[10]
Upon
the applicant’s return to Jiangmen, he did not return to the dormitory but
instead went to live with relatives and took a job as a driver at a real estate
company. Then, in September 2007, four men came to the company where the
applicant worked while he was away at a construction site. The men threatened
the applicant’s employer, who disclosed that the applicant was at the
construction site. The employer later phoned the applicant to warn him and to
tell him that he was fired for causing so much trouble.
[11]
The
applicant then fled to Guangzhou where he stayed with a
distant relative. The drug dealers managed to find the applicant there as
well, and on October 15, 2007, three men showed up brandishing a knife and
threatening Mr. Yu. The applicant escaped through a back window. Mr. Yu says
that because China requires
registration with police to obtain a temporary residence card, his persecutors
would be able to find him anywhere in China. Accordingly, the
applicant hired an agent who arranged for his travel to Canada via the US.
[12]
The
applicant says that since coming to Canada, the gangsters have
continued to look for him in China. He believes they are collaborating with
the police and still trying to exact revenge. In November 2009, the
applicant’s cousin discovered graffiti with threatening messages on the
applicant’s home.
[13]
During
this time, the applicant arranged for his children to live with a friend in Guangzhou. The applicant
then arranged for his eldest son, Wei Bin Yu, to study in New York. On
December 14, 2009, someone phoned one of the applicant’s friends asking for the
applicant’s whereabouts and stating that they knew that the applicant’s son was
studying at Windsor School in New York and that they knew
where he lived. On December 15, 2009, the applicant’s son was informed by
classmates that two men were looking for him at the school’s gates, and that
they had a photograph of him. The applicant’s son did not go back to school and
the applicant arranged for his son to travel to Canada. His son
now has a separate refugee claim pending in Canada.
[14]
The
applicant’s son’s guardian in New York provided an affidavit
stating that men had called looking for the applicant’s son, had shown up
looking for the applicant’s son and had threatened him. He noticed that one of
the men had an eagle tattoo on his left hand.
[15]
The
officer who considered the applicant’s PRRA found that the PRRA failed on the
basis of “improbabilities, insufficiency of evidence and the existence of state
protection in China.”
[16]
The
officer was satisfied that Mr. Yu started and ran his own business in 2005 and
that he was hospitalized in 2006, reporting injuries consistent with a serious
assault. However, the officer noted that the applicant had not provided
evidence of his reports to police, his involvement in the drug investigation,
his uncle’s police report, or the fact that eagle tattoos are a sign of
membership in the Big
Circle
gang.
[17]
The
officer noted that the news article describing the drug raid on December 23,
2006, appeared to have been printed from the internet but did not have “the
usual headers and footers (i.e., date printed, web address, etc.)” and that it
was therefore impossible to locate its original source.
[18]
The
officer noted that the applicant claimed he reported the drug operation in
mid-October 2006 and that he was assaulted two days later, and that the
applicant said he made another report to a higher level police force leading to
the investigation. The officer observed that if, as the news article suggests
and contrary to the applicant’s statement, the police had been investigating
the factory two months prior to the applicant’s discovery of the drug
operations, the applicant would have had no apparent influence on the
investigation. In light of this contradiction and the absence of any police
reports, the officer relied on the news article and found that there was
insufficient evidence that the applicant originated or was involved in the
police investigation.
[19]
The
officer also noted that no evidence was provided regarding the applicant’s
uncle’s police report made after the incident in which the dog was killed,
other than a statement that the uncle died in 2008. The officer found that the
lack of evidence regarding the Big Circle gang’s use of eagle tattoos was problematic because the
tattoos were what tied the men who threatened the applicant’s son in New York
to the incidents in China.
[20]
With
respect to the incident at the applicant’s son’s school, the officer found it
improbable that the presence of suspicious men, who, according to the evidence,
“looked like gang members,” with a picture of the applicant’s son asking
students if they knew him, would fail to raise alarms at a high school. The
officer found it improbable that the son’s classmates would not tell a teacher
or other person in authority, and that it was improbable that the applicant’s
guardian would tell a notary, but not the police, about the death threats. In
light of these concerns, the officer found that there was insufficient evidence
that the applicant’s son was threatened in New York.
[21]
The
officer considered the letter accompanying the photos of the spray-painted
threats on the applicant’s home in China, but noted that the letter appeared “mostly
jovial.” The officer found that the vandalism was difficult to assess in light
of the lack of evidence with respect to other aspects of the claim.
[22]
The
officer found, in any case, that the applicant had failed to rebut the presumption
of state protection. The officer reviewed the protection the applicant had
sought from the police and the protection that had been provided, specifically
noting the applicant’s statement that he considered going to the police after
the incident in Guangzhou, but did not because he
concluded that it would be impossible for the police to protect him 24 hours a
day. The officer agreed that the applicant was likely correct that the police
would be unable to provide constant protection, but noted that state protection
need not be perfect. The officer found that the evidence showed that Chinese
authorities take corruption and organized crime seriously and specifically
noted that the police were able to shut down a large drug manufacturing and
trafficking operation and incarcerate ten gang members, including the leader.
The officer found it improbable that police would subsequently fail to follow
up on the applicant’s allegations that remaining members of the organization
were threatening him. The officer noted that the police offered to protect the
applicant after the incident involving the applicant’s uncle and the dog and
indeed provided a patrol, but that the applicant fled to another area rather
than avail himself of this protection.
[23]
The
officer noted that the media articles provided by the applicant addressed
recent anti-corruption drives in China which resulted in large numbers of arrests and
a “massive crackdown.” The officer acknowledged that gang infiltration of
police and government is still a serious problem in China, but also noted that
there is evidence that higher authorities are aware of the problem and are
taking significant steps to stem the influence of organized crime.
[24]
The
officer determined that based on the applicant’s narrative, the applicant was a
victim of crime and was not targeted based on any of the Convention grounds,
and therefore did not fall within s. 96 of the Immigration and Refugee
Protection Act. With respect to s. 97 of the Act, the officer found that
there was insufficient evidence to corroborate the applicant’s claim, and also
that the applicant failed to rebut the presumption of state protection.
Accordingly, the application was rejected.
Analysis
[25]
The applicant submits that the officer’s finding that the news
report regarding the drug raid was impossible to locate, given that it lacked
the usual headers and footers included on a news article printed from the
internet, was unfounded and that “all of the alleged missing information was
actually there.” The applicant’s submissions regarding the web site are
baseless and the officer’s findings were correct. The web addresses included
on the printout submitted by the applicant are general links to news websites
and do not link to the news article describing the drug raid. They are in
Chinese, and accordingly without a specific address it was impossible for the
officer to verify the original article.
[26]
The applicant submits that the
officer made a negative credibility finding based on the apparently
contradictory evidence and that the officer missed the main point of the
applicant’s allegation of risk: that he was identified by the associates of the
drug ring as someone who made a report about the factory and its boss to the police.
The applicant says that when the drug raid happened was irrelevant and that the
officer’s findings were thus made capriciously and without regard to the
evidence.
[27]
Contrary to the applicant’s
submission, his affidavit does suggest that he influenced the police
investigation, and it was not unreasonable for the officer to interpret it as
such. At paragraph 15 of his affidavit, the applicant affirms that:
I reported to
the police again, which ended up no response at all [sic]. So I had to
report their drug manufacturing and drug dealing activities to the higher level
of police department – Police Bureau of Jiangmen City. On December 23, 2006,
after over two months of full investigation and evidence collection, Jiangmen
Police led by its chief of Police Bureau with over 100 police officers arrested
Mr. Xu and 8 other drug manufacturing staff.
[28]
It was not unreasonable for the
officer to conclude, given the sequence set out in this passage, that the
applicant’s report led to the police investigation. Moreover, the fact that
the applicant’s timeline of events involves his report, then two months of
investigation, and then the raid, further confirms the reasonableness of the
officer’s interpretation of the applicant’s evidence as suggesting he caused
the raid. The two months of investigation the applicant refers to clearly relates
to October to December 2006, whereas the two month period referred to in the
news article relates to July to September 2006. The applicant’s affidavit
suggests the police investigated for two months before launching the raid,
whereas the news article suggests they investigated for five months. In light
of these facts, the officer’s finding that there was a contradiction between
the news report and the applicant’s affidavit was reasonable, and given that
there was no police report or other evidence, the officer’s decision to favour
the news article and to find that there was insufficient evidence that the
applicant originated or was involved in the police investigation was
reasonable.
[29]
The applicant says that the officer’s
findings of “insufficiency of evidence” were inextricably linked to questions
about the applicant’s credibility, and that as such natural justice required
that the applicant be given an oral hearing to address the officer’s concerns.
[30]
I
agree with the applicant that some of the officer’s findings did amount to
credibility findings despite the use of the language of insufficiency of
evidence, contradiction, and improbability. However, raising an issue of
credibility only satisfies paragraph (a) of s. 167 of the Immigration and
Refugee Protection Regulations, SOR/2002-227. The prescribed factors in
that section also include “(b) whether the evidence is central to the decision
with respect to the application for protection; and (c) whether the evidence,
if accepted, would justify allowing the application for protection.” In my
view, the impugned evidence was not sufficiently central to the decision that,
if accepted, it would have justified allowing the application. This is
especially true given that the officer reached a reasonable determination
regarding state protection that was not affected by any credibility concerns.
[31]
The
applicant says that for state protection to be adequate, it must be effective,
and that this requires a decision-maker to do more than simply point out what
the authorities did after a complaint was made: Mejia v Canada (Minister of
Citizenship and Immigration), 2010 FC 530. The applicant submits that the
officer failed to consider the evidence regarding the threats and beating he
had received and the fact that country condition documentation indicates that
corruption is rampant in the police and government infrastructure in China. The applicant says
that the problem of corruption and police involvement with criminal elements “was
not even mentioned at all” in the decision and that no consideration was given
to the true effectiveness of available protection. The applicant says that the
officer failed to consider his belief that the police were collaborating with
his pursuers to find out where he lived, that he was pursued throughout China, that his family
members were seriously threatened, and that objective country condition
documentation suggests a lack of state protection. He also submits that the
burden of proof on an applicant seeking to establish a lack of state protection
is proportional to the level of democracy in the state in question, and that
democracy is arguably non-existent in China. Accordingly, the applicant says the finding
of state protection was made capriciously and without regard to the evidence.
[32]
The applicant has engaged in an
examination of the officer’s reasons but has failed to address one of the
strongest indications of state protection in this case: that police raided the
drug operation and arrested several senior figures, including the owner of the
neighbouring factory, the alleged agent of persecution. I agree with the
officer’s observation that if the authorities were willing to conduct a large,
well-planned raid against the drug manufacturers, it would be improbable that
they would not subsequently be willing to protect the applicant.
[33]
Furthermore, the officer also
considered that the police told the applicant’s uncle that they would
investigate and protect the applicant’s safety and that the police sent a
patrol to the applicant’s home for three to four days after the incident with
the uncle and the applicant’s dog. However, the applicant decided to flee.
The officer noted that the applicant did not pursue further complaints with
police.
[34]
The officer did not misapprehend
the test for state protection; he or she determined that there was effective
protection available in China. Contrary to the applicant’s submissions, it is
clear from the following passages that the officer did consider the problem of
corruption, but nonetheless found that it was being dealt with and in the
applicant’s case had not impaired his ability to receive state protection:
[The Officer
reviews the Vancouver Sun article provided by the applicant and then
writes that] Other articles provided by the applicant, from the “Huffington
Post,” the Daily Telegraph, and the Wall Street Journal, report on the same
massive crackdown. There is credible evidence that gang infiltration of police
and government in China is a serious problem. However, there is also evidence
that higher authorities are aware of the problem and are taking significant
steps to stem the influence of organized crime.
[35]
Contrary to the applicant’s
assertion that the officer failed to consider his belief that the police were
collaborating with his pursuers, the officer’s decision indicates that he did
consider this allegation as is evident from the following passage in the
decision: “Moving around, the applicant had to register with local police and
this, he believes, is how the gang members were able to find him wherever he
went.”
[36]
The
applicant’s complaint with respect to the officer’s analysis of state
protection is basically that the officer failed to assign the weight the
applicant wanted to certain aspects of his evidence. The officer noted that state
protection need not be perfect and determined, based on the evidence, that
state protection would be available to the applicant. This determination was
reasonable and did not ignore any of the issues raised by the applicant. It is
not the role of the Court to reweigh the evidence.
[37]
The
applicant proposed the following question for certification:
In
the circumstances of a PRRA decision focusing on the availability of state
protection and where there has been no previous RPD decision, is there a
requirement that the officer undertake a more complete and careful analysis of
state protection?
[38]
This
question proposed is not a proper question to certify as it would not be
dispositive of an appeal because there is no evidence that the officer failed
to conduct a complete and careful analysis of state protection: Zazai v
Canada (Minister of Citizenship and Immigration), 2004 FCA 89.
JUDGMENT
THIS COURT’S JUDGMENT is that this application is dismissed and no question is certified.
“Russel W. Zinn”
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