Docket:
IMM-10862-12
Citation: 2014 FC 202
Toronto, Ontario February 28, 2014
PRESENT: The Honourable Mr. Justice Shore
|
BETWEEN:
|
|
KUN KWAN GAO
|
|
RUNJIN XIAN
|
|
ANTONIO GAO SEN
|
|
ROBERTO GAO SEN
|
|
ROSA GAO SEN
|
|
Applicants
|
|
and
|
|
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
REASONS FOR JUDGMENT AND JUDGMENT
I. Overview
[1]
For an applicant to fall under Article 1(E) of
the United Nations Convention Relating to the Status of Refugees
[Refugee Convention], he or she must have: the right to return, the right to
work, the right to study, and full access to social services in the country in
which they have taken residence.
[2]
As noted by Justice Donald Rennie in Sow v Canada (Minister of Citizenship and Immigration), 2011 FC 646:
[9] In a democratic
country there is a presumption that a state can protect its own citizens. As
such, the onus is on the applicant to rebut this presumption and prove the
state’s inability to protect through “clear and convincing” evidence: Canada
(Attorney General) v Ward [1993] 2 S.C.R. 689 at para 50; Hinzman v Canada
(Citizenship and Immigration), 2007 FCA 171 at paras 43-44; Zepeda v
Canada (Minister of Citizenship and Immigration), 2008 FC 491 at para 13.
[3]
To rebut the presumption of State protection, an
applicant must satisfy a heavy evidentiary burden by introducing evidence of
inadequate State protection. The quality of the evidence required to rebut
such presumption must be reliable and be of sufficient probative value (Lozada
v Canada (Citizenship and Immigration), 2008 FC 397).
II. Introduction
[4]
The Applicants seek judicial review of a
decision of the Refugee Protection Division [RPD] of the Immigration and
Refugee Board, wherein it was determined that the Applicants were excluded from
refugee protection under Article 1E of the Refugee Convention and pursuant to s
98 of the Immigration and Refugee Protection Act [IRPA].
III. Background
[5]
The Principal Applicant, Mr. Kun Kwan Gao, and
his wife, Mrs. Runjin Xian, are citizens of the People’s Republic of China. They have lived in Panama as permanent residents for over 20 years.
[6]
The couple’s three children, Antonio Gao Sen,
Roberto Gao Sen, and Rosa Gao Sen, were all born in Panama and are citizens of Panama.
[7]
The Applicants state that their troubles began
in Panama in 1992, when their store was robbed at gunpoint. It was robbed twice
within one year.
[8]
The Applicants claim they were robbed again in
2001, this time at their home. During the robbery, the Applicants state that
Mrs. Xian was violently raped.
[9]
In October 2008, the Applicants state that they
were again attacked by unknown thugs at their store, and a relative was shot
and killed.
[10]
In an amended Personal Information Form [PIF]
submitted by Mrs. Xian, it is stated that the couple hired a security guard
after this shooting.
[11]
In June 2009, Mrs. Xian claims that the guard’s
gun was taken away from him by unknown thugs. It is this incident, the
Applicants explain, that finally drove them to leave Panama.
[12]
In the same month, the Applicants received a
5-year visitor’s visa from the United States. They arrived in the United States on September 30, 2009, and spent approximately 10 days in the country.
[13]
The Applicants explain that they traveled to the
United States first as they could not acquire a visitor’s visa for Canada from Panama. They did not seek asylum during their stay in the United States.
[14]
On October 5, 2009, the Applicants received a
visitor’s visa from the Canadian Consulate in New York for travel to Canada. The Applicants arrived in Canada on October 9, 2009.
[15]
The Applicants claimed refugee protection on
December 3, 2009.
[16]
On September 28, 2012, the RPD rejected the
Applicants’ application for refugee status in Canada which is the underlying
application before this Court.
IV. Decision
under Review
[17]
The RPD rejected the Applicants’ refugee claim
on September 28, 2012.
[18]
The RPD firstly determined that the Applicants
all held permanent resident status in Panama (or citizenship), and therefore,
enjoyed all of the basic rights associated with nationality in Panama.
[19]
The RPD applied the test in Shamlou v Canada
(Minister of Citizenship and Immigration) (1995), 103 FTR 241, 32 Imm LR
(2d) 135, in determining whether the Applicants enjoyed the basic rights
attached to the possession of nationality in Panama: (a) the right to return; (b)
the right to work freely; (c) the right to study, and (d) full access to social
services (at para 35).
[20]
The RPD found that the Applicants met these
criteria. As such, the RPD determined that the Applicants could not request
refugee protection against China in Canada. Their status in Panama excluded them from doing so by virtue of Article 1(E) of the Refugee Convention.
[21]
In making its determination on the Applicants’
exclusion, the RPD also concluded that the Principal Applicant’s evidence in
regard to his fear of persecution in Panama lacked credibility. In particular,
the RPD noted that the Principal Applicant had not taken any steps to obtain
police reports to corroborate his claims against Panama. Moreover, he failed to
leave Panama for nearly one year after the incident, and failed to claim asylum
in the United States during his travel there immediately prior to arriving in Canada. In the RPD’s view, these factors all diminished the Applicants’ credibility in
regard to a fear of persecution.
[22]
In light of this finding, and in the absence of
convincing objective evidence establishing a nexus between the alleged crimes
and the Applicants’ race, the RPD determined that the Applicants faced no
greater risk of being victims of crime than the general population of Panama. The RPD concluded that the Applicants had merely been the victims of random
criminal acts.
[23]
The RPD further found that the Applicants had
not rebutted the presumption of State protection in Panama. The RPD concluded
that there was insufficient evidence that the Applicants would not receive State
protection in Panama because they were Chinese, or on the basis of another
Convention grounds.
[24]
Notwithstanding the RPD’s findings regarding the
Applicant’s exclusion under Article 1(E) of the Refugee Convention, the RPD
went on to find that the Applicants had also failed to sufficiently establish
that they would be subject to a serious possibility of persecution or cruel and
unusual treatment or punishment or danger of torture if returned to China.
V. Issues
[25]
(1) Is the RPD’s determination that the
Applicants should be excluded under Article 1E of the Refugee Convention
reasonable?
(2) Is the RPD’s determination that the Applicants could
have received State protection reasonable?
VI. Relevant
Legislative Provisions
[26]
The following legislative provisions of the IRPA
are relevant:
|
Convention refugee
96. A Convention refugee is a person who,
by reason of a well-founded fear of persecution for reasons of race,
religion, nationality, membership in a particular social group or political
opinion,
(a) is
outside each of their countries of nationality and is unable or, by reason of
that fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not
having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
Person in need of protection
97. (1) A person in need of
protection is a person in Canada whose removal to their country or countries
of nationality or, if they do not have a country of nationality, their
country of former habitual residence, would subject them personally
(a) to a
danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to a risk
to their life or to a risk of cruel and unusual treatment or punishment if
(i) the
person is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the risk
would be faced by the person in every part of that country and is not faced
generally by other individuals in or from that country,
(iii) the
risk is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the risk
is not caused by the inability of that country to provide adequate health or
medical care.
Person in need of protection
(2) A person
in Canada who is a member of a class of persons prescribed by the regulations
as being in need of protection is also a person in need of protection.
Exclusion – Refugee Convention
98. A person referred to in section E or
F of Article 1 of the Refugee Convention is not a Convention refugee or a
person in need of protection.
|
Définition de « réfugié »
96. A qualité de réfugié au sens de la
Convention — le réfugié — la personne qui, craignant avec raison d’être
persécutée du fait de sa race, de sa religion, de sa nationalité, de son
appartenance à un groupe social ou de ses opinions politiques :
a) soit se
trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de
cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit, si
elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait
sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y
retourner.
Personne à protéger
97. (1) A qualité de personne à
protéger la personne qui se trouve au Canada et serait personnellement, par
son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de
nationalité, dans lequel elle avait sa résidence habituelle, exposée :
a) soit au
risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture
au sens de l’article premier de la Convention contre la torture;
b) soit à une
menace à sa vie ou au risque de traitements ou peines cruels et inusités dans
le cas suivant :
(i) elle ne
peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y
est exposée en tout lieu de ce pays alors que d’autres personnes originaires
de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la
menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv) la
menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
Personne à protéger
(2) A
également qualité de personne à protéger la personne qui se trouve au Canada
et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
Note marginale : Exclusion par
application de la Convention sur les réfugiés
98. La personne visée aux sections E ou F
de l’article premier de la Convention sur les réfugiés ne peut avoir la
qualité de réfugié ni de personne à protéger.
|
[27]
The following provision of the Refugee Convention is
also relevant:
|
1E. 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.
|
1E. Cette Convention ne sera pas
applicable à une personne considérée par les autorités compétentes du pays
dans lequel cette personne a établi sa résidence comme ayant les droits et
les obligations attachés à la possession de la nationalité de ce pays.
|
VII. Standard
of Review
[28]
The issue of whether facts give rise to an exclusion under
Article 1(E) of the Refugee Convention and section 98 of the IRPA is a
question of mixed fact and law, reviewable on the standard of reasonableness (Ramirez-Osorio
v Canada (Minister of Citizenship and Immigration), 2013 FC 461; Fonnoll
v Canada (Minister of Citizenship and Immigration), 2011 FC 1461).
[29]
The issue of State protection is also a question of
mixed fact and law, reviewable on the standard of reasonableness (Ruszo v Canada (Minister of Citizenship and Immigration), 2013 FC 1004).
VIII. Position of the Parties
[30]
The Applicants submit that the RPD erred in finding
that they were excluded from protection under Article 1(E) of the Refugee
Convention. The Applicants argue that their fear of persecution is clearly
linked to their race, and they will be persecuted if returned to Panama. They maintain that there was documentary evidence before the RPD that indicated
that Chinese people are disproportionately targeted for crime and face
discrimination in Panama.
[31]
The Applicants also argue that the RPD’s conclusion
that adequate State protection was available to the Applicants in Panama was made without proper regard to the documentary evidence.
[32]
The Respondent submits that there was no error in the
RPD’s finding that the Applicants were excluded from protection under Article
1(E) of the Refugee Convention, as their claim against Panama was found to be non-credible and was not supported by the documentary evidence. The
Respondent states that the RPD was therefore open to find that the Applicants
had not established a nexus between their victimization and their race.
[33]
The Respondent contends that the documentary evidence
on record does not demonstrate that criminals are targeting Chinese people
because they are Chinese, but rather, because they are shopkeepers, perceived
as wealthy. Moreover, the Respondent argues that the Applicants have not
established how they personally have been subjected to persecution based on
their race; the evidence in regard the Applicants’ personal experience suggests
that they were victimized for economic reasons.
[34]
Lastly, the Respondent submits that the RPD’s finding
regarding State protection is reasonable as the evidence on record demonstrates
that the police investigated all of the Applicants’ complaints in a prompt
manner. Furthermore, the Applicants failed to provide any evidence to suggest
that Chinese people in Panama suffered disproportionately from crime as
compared to the general population.
IX. Analysis
(1) Is the RPD’s determination that the Applicants should be
excluded under Article 1E of the Refugee Convention reasonable?
[35]
For an applicant to fall under Article 1(E) of the
Refugee Convention, he or she must have: the right to return, the right to
work, the right to study, and full access to social services in the country in
which they have taken residence.
[36]
In the present case, the uncontradicted evidence
demonstrates that the Applicants had the right to return to and work in Panama; they submitted indefinite work permits and voter cards to the RPD. Accordingly, the
Applicants did not advance any argument (or evidence) as to whether they had
been denied such rights, or the right to study or to access to social service.
[37]
The burden was on the Applicants to demonstrate that
they did not enjoy the rights and obligations of nationals of Panama. Without any evidence indicating the above criteria could not be met, the Court
finds that the RPD was open to reach the conclusion that Article 1E of the
Refugee Convention applied to the Applicants.
(2) Is the RPD’s determination that the Applicants could have
received State protection reasonable?
[38]
It is settled law that absent a complete breakdown of State
apparatus, it should be presumed that a State is capable of protecting its
citizens (Ruszo, above, at para 29).
[39]
As noted by Justice Rennie in Sow, above:
[9] In a
democratic country there is a presumption that a state can protect its own
citizens. As such, the onus is on the applicant to rebut this presumption and
prove the state’s inability to protect through “clear and convincing” evidence:
Canada (Attorney General) v Ward [1993] 2 S.C.R. 689 at para 50; Hinzman
v Canada (Citizenship and Immigration), 2007 FCA 171 at paras 43-44; Zepeda
v Canada (Minister of Citizenship and Immigration), 2008 FC 491 at para 13.
[40]
To rebut the presumption of State protection, an
applicant must satisfy a heavy evidentiary burden by introducing evidence of
inadequate State protection. The quality of the evidence required to rebut
such presumption must be reliable and be of sufficient probative value (Lozada,
above).
[41]
In the present case, the documentary evidence before
the RPD was clear; Panama is a democracy with a functioning police and judicial
system; albeit, perhaps not a perfect one.
[42]
The RPD gave the Applicants several opportunities to
adduce evidence that would support their allegations that Panama was unable or unwilling to protect them against persecution; however, the Applicants
failed to provide sufficient evidence to rebut the presumption of State
protection.
[43]
The evidence before the RPD clearly establishes that
the police attended the alleged incidents claimed by the Applicants, searched
the premises, asked questions, took notes, and, in certain instances, even had
the Applicants review photographs of suspects in an attempt to identify their
assailants. In the Court’s view, these are actions that would reasonably be
expected from law enforcement officials responding to a crime.
[44]
Not having provided a police report, in and of itself, does
not demonstrate that the police was ineffective or inactive in the matter;
rather, it appears to the contrary, that it was an attempt by the police to
find the means by which to identify the assailants.
[45]
Without relevant, reliable and convincing evidence
proving the State’s unwillingness or inability to protect the Applicants, the
RPD was open to conclude that the presumption of State protection had not been
rebutted (see Carillo v Canada (Minister of Citizenship and Immigration),
2008 FCA 94, [2008] 4 FCR 636 at para 30).
[46]
In light of the above, the Court finds that the RPD’s
determination falls within the range of reasonable, acceptable outcomes.
[47]
This finding is sufficient to dispose of this
application for judicial review. The Court, therefore, does not consider it
necessary to address the Applicants’ allegations regarding the RPD’s findings
on their fear of persecution in China.
X. Conclusion
[48]
For all of the above reasons, the Applicants’
application for judicial review is dismissed.
Email this Content