Date: 20110309
Docket: IMM-3909-10
Citation: 2011 FC 279
Ottawa, Ontario, March 9,
2011
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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ZONG LIN ZHONG
HUI QIN ZHONG
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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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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board (the Board), dated June 16, 2010,
wherein the Applicants were determined to be neither convention refugees nor
persons in need of protection under sections 96 and 97 of the Immigration
and Refugee Protection Act, R.S. 2001, c. 27 [IRPA].
[2]
The
Board determined that the Applicants were excluded from seeking refugee
protection in Canada pursuant to Article 1E of the United Nations Convention
Relating to the Status of Refugees (the Convention), that their alleged fear
had no nexus with a Convention ground, and that their testimony regarding China,
their country of citizenship, was neither plausible nor credible.
[3]
Based
on the reasons below, this application is dismissed.
I. Background
A. Factual
Background
[4]
The
Applicants, Zong Lin Zhong and Hui Qin Zhong, are citizens of the People’s
Republic of China (China). They are
brother and sister and arrived separately in Canada, in July and
September 2007 respectively, with the intent to study. They made their claims
for refugee protection in January 2008. At the hearing they both relied on the
sister’s Personal Information Form (PIF) and indicated a fear of persecution in
both China, their country of citizenship, and Ecuador, where they lived with
their parents as permanent residents prior to coming to Canada.
[5]
The
Applicants claimed a fear of persecution in China due to their
association with an underground Christian church. The sister was introduced to
Christianity by a neighbour, Aunt Wang, during a difficult period in her life
in October 2003. Doctors were unable to help her but, as described in her PIF,
“it was Jesus Christ who expelled Satan from me…” After witnessing this
miracle, the Applicants’ interest in God and Jesus Christ grew, but their
parents prohibited the Applicants, who were minors at the time, from joining
the underground church. The Applicants instead studied the bible at home.
[6]
In
January 2004 the Applicants moved to Ecuador with their parents.
They joined a church there and were baptized on December 25, 2004. Although
their sins were washed away and the Applicants were reborn, they allege that
they nonetheless experienced new forms of persecution in Ecuador in the form
of discrimination and extortion because of their Chinese origin.
[7]
The
Applicants decided to leave Ecuador in June 2007 because
gangsters once again visited their parents’ restaurant for the purpose of
extortion, but this time in addition to increasing the sum sought, the
gangsters also threatened the family.
[8]
In
February 2008 the gangsters returned to their parents’ restaurant and beat
them. In August 2008 the Applicants learned that Aunt Wang’s church in China had been
raided. In an amended PIF the Applicants claim that agents of the Public
Security Bureau (PSB) had been to their grandmother’s house looking for the
Applicants because the Applicants had allegedly withheld information regarding
Aunt Wang’s church. Consequently, the Applicants fear returning to Ecuador due
to the gangsters and returning to China because of the PSB and
lack of religious freedom.
B. Impugned
Decision
[9]
The
Board found that the Applicants had permanent resident status in Ecuador when they
made their claims for refugee protection in Canada. Although
the Applicants let their status in Ecuador lapse, the Board found that, on a
balance of probabilities, the Applicants had done this deliberately in order to
support their claims for protection in Canada. The Board
determined that the Applicants were therefore excluded under Article 1E of the
United Nations Convention Relating to the Status of Refugees.
[10]
The
Board considered whether the Applicants had a well-founded fear of persecution
in Ecuador. There was
no documentary evidence to support the Applicants’ contention that members of
the Chinese community in Ecuador are particularly
targeted by gangs and the Board found, on a balance of probabilities, that the
basis of their claim of persecution was a generalized risk shared by all
residents of Ecuador. As the
claim was based on alleged criminal activity, there was no nexus with a
Convention ground. Furthermore, the Board found that state protection is
available in Ecuador and that the Applicants failed to disclose clear and
convincing evidence that it would not be available to them if they returned to Ecuador.
[11]
The
Board also considered the Applicants’ submissions regarding their alleged fear
of persecution in China. The Board concluded that on a balance of
probabilities the Applicants’ testimony concerning the PSB’s interest in and
pursuit of the Applicants to be neither plausible nor credible.
II. Issues
[12]
This
application raises the following issues:
(a) Did the Board breach its duty of
procedural fairness?
(b) Did the Board err in assessing
the issue of exclusion?
(c) Did the Board err in assessing
the claim against Ecuador?
(d) Did the Board err in assessing
the claim against China?
III. Legislative
Scheme
[13]
Article
1(E) of the Convention provides as follows:
E. This Convention
shall not apply to a person who is recognized by the competent authorities of
the country in which he has taken residence as having the rights and
obligations which are attached to the possession of the nationality of that
country.
IV. Standard
of Review
[14]
Questions
related to natural justice and procedural fairness are questions of law and
warrant review on a standard of correctness. As a result the decision maker is
owed no deference (Malik v Canada (Minister of
Citizenship and Immigration), 2009 FC 1283 at para 22).
[15]
Similarly,
the test for exclusion under Article 1(E) of the Convention is a question of
law of general application to the refugee determination process and is
reviewable on a standard of correctness. However, the question of whether the
facts of a particular case give rise to an exclusion is an issue of mixed fact
and law and the Board is owed a significant degree of deference with respect to
this determination (Zeng v Canada (Minister of Citizenship and Immigration),
2010 FCA 118, 402 NR 154 at para 11).
[16]
It
is well-established that decisions of the Board as to credibility and the
interpretation and assessment of evidence are all reviewable on a standard of
reasonableness (Lawal v Canada (Minister of
Citizenship and Immigration), 2010 FC 558 at para 11; NOO v Canada (Minister
of Citizenship and Immigration), 2009 FC 1045, [2009] FCJ No 1286 (QL) at para
38).
[17]
As
set out in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190,
reasonableness requires a consideration of the existence of justification,
transparency and intelligibility in the decision-making process. It is also
concerned with whether the decision falls within a range of acceptable outcomes
that are defensible in respect of the facts and law.
V. Argument
and Analysis
A. Did
the Board Breach its Duty of Procedural Fairness?
[18]
The
Applicant submits that the Board questioned the Applicants in an aggressive and
adversarial manner. The Applicants allege that the Board exhibited signs of
bias and describe the conduct of the Board at the hearing as the Member
“leading the applicants to slaughter.” The Applicants contend that they were
denied an impartial hearing of their claim.
[19]
The
Respondent denies that the Board engaged in aggressive or adversarial
questioning or that the Board asked questions that indicated a certain
pre-disposition. Rather the Respondent takes the position that as there was no
Refugee Protection Officer present, the presiding Member was entitled to ask
direct questions on the merit of the claim, and to clarify the Applicants’
meandering answers.
[20]
As
the Respondent notes, the Refugee Division is master of its own procedure, and
absent a specific rule it can adopt a suitable hearing process as long as it
complies with the requirements of fairness and natural justice (Prassad v
Canada (Minister of Employment and Immigration), [1989] 1 SCR 560,
at para 16). In dealing with similar allegations in Martinez v Canada
(Minister of Citizenship and Immigration), 2005 FC 1065, 35 Admin
LR (4th) 261, Justice Judith Snider noted at para 12:
[12] A unifying thread
that one can draw from the jurisprudence is that the Board is afforded
considerable latitude in how it conducts its hearings. A review of the cases
also demonstrates that, where an allegation of this nature is raised,
"[t]he dividing line between permissible and impermissible behaviour is
one of fact"... For this purpose, the transcript is an important
assessment tool for the Court. […]
[21]
I
have reviewed the transcript and accept the Respondent’s submissions on this
point. Although it appears that there was some disagreement between the
Applicants’ counsel and the Member on how to proceed with questioning regarding
the issue of exclusion, the Member did not take an unreasonable approach and I
cannot find that counsel’s right to lead examination in chief was interfered
with. Furthermore, I am not persuaded that the Applicant’s right to a fair
hearing was compromised in this case. There is no evidence that the Member’s
direction on how to proceed interfered with counsel’s ability to adduce
relevant evidence, or advance any particular argument. As remarked in Martinez, above, at
para 18:
while the Board's conduct in
questioning as it did was assertive and disruptive of the counsel's direct
examination of the Applicants, there is not an evidentiary basis upon which I
could conclude that it was more likely than not that the Board, whether
consciously or unconsciously, would not decide fairly.
[22]
Further,
Applicants’ counsel stated for the record her dissatisfaction with how the
Member chose to order questioning on the issue of exclusion. However, she did
not state her concern that the questions were inappropriate or indicative of
any kind of bias on the part of the Member. Failure to raise a timely
objection to a perceived breach of natural justice is considered by the
jurisprudence of this Court to be an implied waiver of any such breach that
might have occurred (Kamara v. Canada (Minister of
Citizenship and Immigration), 2007 FC 448, 157 ACWS (3d) 398 at para
26).
[23]
Although
the Applicants allege a reasonable apprehension of bias, as the Respondent
submits, the Applicants have failed to show that the Board was predisposed, and
have not submitted any evidence that would meet the reasonable apprehension of
bias test (R v RDS, [1997] 3 S.C.R. 484, 151 DLR (4th) 193 at para 11).
Bare assertions of leading questions will not suffice. It seems that both
parties were confused at times. Questions were repeated and reposed in order
to obtain an unambiguous answer. This was in fulfillment of the Member’s
fact-finding role and is not reflective of a desire to get the answers required
to reject the Applicants’ claim.
B. Did
the Board Err in Assessing the Issue of Exclusion?
[24]
The
Applicants submit that the Board found that the Applicants were excluded under
Article 1(E) of the Convention without considering why the Applicants’
status in Ecuador lapsed.
This, they argue, is a reviewable error as it does not accord with the test set
out in the recent decision of the Federal Court of Appeal in Zeng v Canada
(Minister of Citizenship and Immigration), 2010 FCA 118, 402 NR 154.
[25]
The
Respondent argues that the Board properly applied the Zeng test and that
the finding that the Applicants were excluded under Article 1(E) was reasonably
open to the Board and should not be disturbed.
[26]
In
Zeng, the Federal Court of Appeal reformulated the criteria to consider
in determining an exclusion at paras 28 and 29 as follows:
[28] Considering all
relevant factors to the date of the hearing, does the claimant have status,
substantially similar to that of its nationals, in the third country? If the
answer is yes, the claimant is excluded. If the answer is no, the next question
is whether the claimant previously had such status and lost it, or had access
to such status and failed to acquire it. If the answer is no, the claimant is
not excluded under Article 1E. If the answer is yes, the RPD must consider and
balance various factors. These include, but are not limited to, the reason for
the loss of status (voluntary or involuntary), whether the claimant could
return to the third country, the risk the claimant would face in the home
country, Canada's international obligations, and any other relevant facts.
[29] It will be for the RPD to weigh
the factors and arrive at a determination as to whether the exclusion will
apply in the particular circumstances.
[27]
The
Applicant contends that the Board was mired in an earlier, seriously incomplete
statement on the law of exclusion. The Applicants submit that as a result the
Board failed to consider and balance the factors laid out by the Federal Court
of Appeal in the third step of the test when considering the Applicants’ status
in Ecuador. However,
this contention is not borne out in a review of the reasons.
[28]
The
Board considered the Applicants’ status in Ecuador at the time
they made their claim for refugee protection in Canada, and their status in Ecuador at the time
of the hearing. The Board attempted to elicit an explanation for why the
Applicants allowed their status to lapse. The responses indicated that the
lapse in status was a result of the Applicants’ voluntary inaction. The Board went on
to examine the reason the Applicants chose not to renew their status. The
Board was not persuaded that the Applicants’ alleged fear of mistreatment in Ecuador was a
reasonable justification for failing to take any action to maintain their
status. The Board then went on to examine the substance of the claim of the
alleged fear and also found it wanting. Consequently, I am unable to find
that the Board erred in concluding that the Applicants were excluded under
Article 1(E) of the Convention.
C. Did
the Board Err in Assessing the Claim Against Ecuador?
[29]
The
Board found that the Applicants feared returning to Ecuador due to a
risk of general criminal activity. The Applicants claimed that they were
targeted by criminals because of their Chinese ethnicity. However, the
Applicants were unable to provide any corroborating documentary evidence
supporting their objective fear. The Applicants submit that the Board erred in
requiring documentary corroboration of their claim.
[30]
It
is trite law that in order to establish a well-founded fear of persecution a
refugee claimant must show that the alleged fear is both subjectively and
objectively well-founded. In order to establish a claim, the onus is on the
Applicants to adduce evidence to establish that there is more than a mere
possibility of persecution. The documentary evidence suggests that women,
Afro-Ecuadorians, indigenous peoples and homosexuals experience elevated levels
discrimination. There is no mention Chinese-Ecuadorians. The Board drew a
negative inference from the lack of corroborating documentation and it was open
to the Board to do so. The Applicants make the circular argument that they are
targeted by criminals because of their wealth, and the Board failed to consider
that the Applicants are perceived as wealthy because of their Chinese ethnicity
and the consequent perception that they are hard-working and entrepreneurial.
This is not persuasive. The Board gave the Applicants several
opportunities to adduce evidence that would support that Chinese-Ecuadorians
are targeted because of their ethnicity and the Applicants were unable to
provide anything of probative value beyond their own personal allegations.
[31]
In
my view, based on the evidence, it was reasonable for the Board to conclude
that the Applicants feared a general criminal risk shared by all residents of Ecuador. This lacks
nexus to any Convention ground, and therefore the Applicants were unable to
establish a claim for protection.
D. Did
the Board Err in Assessing the Claim Against China?
[32]
The
Applicants claim could have been properly disposed of on the grounds that they
were excluded from seeking refugee protection in Canada, as their
permanent residence status in Ecuador offers them an alternative forum of
domestic protection against what they fear in China.
Additionally, the Board reasonably concluded that the Applicants’ fear of
returning to Ecuador was not
well-established. The Board nonetheless went on to examine the Applicants
claim against China. The
Applicants allege that the Board erred in this analysis and unjustifiably found
the Applicants claims to be neither credible nor plausible.
[33]
In
my view, the Applicant is not successful in raising any reviewable error with
respect to the Board’s analysis of the claim against China.
[34]
The
Applicants allege fear based on the raiding of an underground church they never
attended, over four years after they left China for Ecuador. The Board
is entitled to make such implausibility findings. The Board’s findings in this
regard are not in any way unreasonable and do not warrant the intervention of
this Court.
[35]
The
Board made several findings which were independently determinative of the claim
for refugee protection. The Applicants were not successful in arguing that
there was an error in any one of these. As such there is no basis to disturb
the Board’s findings.
VI. Conclusion
[36]
No
question was proposed for certification and none arises.
[37]
In
consideration of the above conclusions, this application for judicial review is
dismissed.
JUDGMENT
THIS COURT’S
JUDGMENT is that this application for judicial
review is dismissed.
“ D.
G. Near ”
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