Date: 20120509
Docket: IMM-6273-11
Citation: 2012 FC 554
Ottawa, Ontario, May 9, 2012
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
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CHIPENG SU
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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
decision of the Refugee Protection Division of the Immigration and Refugee
Board that Mr. Su is neither a Convention refugee nor a person in need of
protection must be set aside.
[2]
The
Board believed that Mr. Su is a homosexual. It did not believe that he was
arrested and assaulted by the police. Accordingly, it found that Mr. Su would
not face a serious risk of harm in China.
[3]
Although
there are aspects of the evidence from which one might conclude that Mr. Su’s
story is not credible, the difficulty with the Board’s decision is that some of
the facts it relied on to ground the credibility determination are not in
accord with the evidence.
[4]
The
first such factual error is the following. The Board writes that:
In his Personal Information Form the
claimant alleges that he was rounded up by police as part of a campaign against
prostitution and that “sexual trade” was the basis of the charge against him.
When I asked him at the hearing what he was charged with in China he again stated that it was for engaging
in “sexual trade.” However I note that the charge contained in the document he
has provided in evidence states that he was charged with “acting promiscuously
and licentiously inside the Anti-British-fight Memorial Park.” The claimant
has not been able to satisfactorily explain this discrepancy other than to
reiterate that he had been framed and to opinion [sic] that the meaning of
“acting promiscuously and licentiously” are the same as engaging in
prostitution [footnote omitted].
[5]
In
fact, the applicant did not testify as clearly as is suggested by the Board
that he had been charged with “sexual trade.” In his Personal Information Form
[PIF], in response to the question as to whether he had ever been “sought,
arrested or detained by the police” he responded that he had and in response to
the question “why?” responded “[a]lleged sex prostitution [emphasis
added].” At the hearing when asked what charge he faced he responded, at first
“it is the police authority who charged me for doing sexual trade in the public
place, which means to do promiscuous in the fetish deal.” When asked to
clarify what he meant he said “[t]hey charged me with licentiousness,
promiscuous and licentiousness conduct in public place.”
[6]
In
my view, a fair reading of the PIF and transcript shows that the applicant was
consistent in asserting that the police officers accused him of engaging in
“sexual trade” or male prostitution, when he was in fact engaging in flirtatious
conduct with his boyfriend. Officially, they charged him with “acting
promiscuously and licentiously inside the Anti-British-fight Memorial Park” as
shown on the police documents in evidence at pages 404-407 of the certified
tribunal record. The allegation that he was engaged in sexual trade was the
ruse, not the charge. Accordingly, I find the Board’s reliance on this alleged
inconsistency to be unreasonable.
[7]
Second,
the Board relies on an alleged inconsistency between the probation summons and
the charges cited above. The probation summons in translation reads, in
relevant part, as follows: “The person being summoned ChiPeng SU due to
sodomy….” The Board noted that sodomy and prostitution were not the same. At
paragraph 16 of the decision it writes:
When I pointed out to the claimant that
there was also a major difference between the words “sodomy’ and “prostitution”
and that according to the objective documentation there were apparently no laws
against sodomy in China, he was again unable to explain why this was listed as
the charge against him in the document. At this point in the hearing,
claimant’s counsel questioned the interpreter about whether the characters used
in Chinese could also mean “prostitution” and she agreed that under a
particular way of reading the characters this could be true [emphasis added
and footnotes omitted].
[8]
The
Board failed to give any reason for rejecting this evidence that would resolve
in the applicant’s favour the discrepancy of whether the document could be
interpreted as referring to “prostitution” and not to “sodomy.” In my view,
the following exchange at the hearing involving the interpreter and Mr. Su’s
counsel makes it clear that the Chinese characters used can mean prostitution:
MR. TSE: I’d just like to go back to
clarify the wording on that document.
PRESIDING BOARD: Yes.
MR. TSE: To me, it’s really important.
Mrs. Interpreter, can you look at the
Chinese word or the Chinese text at page 80 for the word that was translated as
sodomy and translate the exact words and the sounds, like the literal meaning
of the words themselves. There’s two characters that are sort of significant.
I’ll show you what the Translator had
highlighted to me, the two characters. Then if I can ask the Translator for the
two characters each to say what those characters are.
PRESIDING BOARD: Yeah, in the original
there is some -- it is handwritten on part of the form. I wonder if you could
just show her the original document. It’s in that book there. I noticed it when
I looked through it. Yeah, there’s handwriting on the form. Is that the one?
…
MR. TSE: But yeah, those characters
themselves, Ms. Translator, can you read those words, the word itself?
INTERPRETER: Those two words mean
“sodomy”
MR. TSE: I mean the word.
INTERPRETER: Oh, in Chinese it’s
(indiscernible); it could be cut into two places.
MR. TSE: Yeah, I want each piece.
INTERPRETER: Well, you do the translation
it’s to the meaning, sometimes not word for word.
MR. TSE: Yes.
INTERPRETER: But word for word in
Chinese is (foreign language spoken) first letter and the (foreign language
spoken) is the second letter. And (foreign language spoken) is to have sexual
contact with and (foreign language spoken) means prostitute, so to have sexual
contact with a hooker. That’s the broad way.
MR. TSE: And those two characters, when
you translate to English, it means the word “sodomy”?
INTERPRETER: Also deriving to
(indiscernible) word, “sodomy,” or in the verbal way, “to have sexual contact
with prostitute.”
MR. TSE: Okay.
PRESIDING BOARD: Well, which is it?
INTERPRETER: It can be both. One
original meaning arriving from different bookish word, “sodomy.”
MR. TSE: It can be both?
INTERPRETER: It can be both because
the Chinese language is not very black and white. This meaning derived this
word, similar meaning but with a broader definition [emphasis added].
[9]
This
translation issue goes to the heart of an alleged discrepancy upon which the
Board rested much of its credibility finding. If the alternate definition is
accepted, then there may be no discrepancy between Mr. Su’s evidence that he
was charged with “acting promiscuously and licentiously” due to an accusation
that he was engaging in male prostitution and the probation summons saying he
is summoned “due to” engaging in sodomy or prostitution. The document does not
appear to characterize the charge, rather it appears to characterize the act
that led to the charge. The Board’s rejection of this evidence, without any
explanation, is unreasonable.
[10]
I
accept the submissions of counsel for the Minister that the probation summons
remains problematic, especially as there is no mention in the other documents
of the applicant being subjected to a probationary period, however, his own
evidence in that respect may have been given greater weight if the documentary
evidence had not been rejected by the Board.
[11]
I
also find that the Board’s negative credibility assessment with respect to the
applicant’s interactions with the police was made without regard to the evidence
that police arbitrarily use a variety of legal pretexts in order to penalize
public displays of homosexuality. Mr. Su testified:
So what I meant was that if in May the
police authority had started a campaign to eradicate any prostitution and they
had to or they must get rid of how many, how many prostitution cases. When
they were unable to fulfill that quota, which means they were unable to get
enough prostitutes, then they will take us, those homosexual people, to replace
the quotas they were unable to fulfill and took us as that… So the police
authorities used the name of eradicating pornography to arrest some homosexual
people.
This submission that homosexuals were
arrested to meet quotas established for prostitution arrests was not dealt with
by the Board. In my view, the Board erred in failing to analyze the repeated
allegations made by Mr. Su, supported by documentary evidence, that the
authorities used false pretexts to persecute him.
[12]
The
Board found, alternatively, that Mr. Su had an internal flight alternative
(IFA) in Shanghai where, the
Board claimed, gay and lesbian life is generally accepted. The Board stated
that other than to speculate that his probationary status would not permit it,
Mr. Su provided no satisfactory explanation why he could not relocate there.
It noted that he was able to leave and return to China on two
occasions without it harming his probationary status. It held that there was
nothing to suggest that he could not do so again.
[13]
I
agree with Mr. Su that the Board’s negative credibility finding concerning his
interactions with the police impacted its assessment of an available IFA. If
the Board is wrong on its risk findings, then Mr. Su is a person who is subject
to a probationary status and will be required, at least once more, to go before
his agents of persecution and will also be subjected to a three month period of
detention for having failed to report. As such he is not merely a homosexual
facing discrimination in his city. An IFA is not an alternative if one must
face persecution in order to obtain permission to travel to the IFA.
[14]
It
is unreasonable for the Board to conclude that there was a less than mere
possibility that he faced a risk of harm upon attending the police in order to
relocate to and live in Shanghai if it is true that he was: (i) assaulted by
the police when he was found kissing and coddling at the park on May 4, 2009;
(ii) beaten, assaulted, stripped and forced to “perform” sexual acts by the
police on each day while in detention between May 4 and 11, 2009; (iii)
verbally abused by the police when he reported in accordance with his probation
and paid the required fee on November 11, 2009; and (iv) beaten by the police
to the point of requiring medical attention when he attended to make his second
required fee payment on May 11, 2009. If these events occurred as was alleged,
then the availability of an IFA and the risk to Mr. Su in returning to China takes on a
much different colour.
[15]
Mr.
Su’s claim for protection must be re-examined.
[16]
Neither
party proposed a question for certification.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application is allowed, the
applicant’s claim for protection is to be determined by a differently
constituted Board, and no question is certified.
"Russel
W. Zinn"
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