Date: 20000906
Docket: IMM-4872-99
BETWEEN:
KIN WAN CHAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
DAWSON J.
[1] Kin Wan Chan, the applicant, is a 35 year old citizen of the People's Republic of China who claimed status as a Convention refugee on the ground that he feared persecution in China by reason of political opinion imputed to him. In a decision dated August 27, 1999, the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD") determined that Mr. Chan was not a Convention refugee.
[2] Mr. Chan brings this application for judicial review in respect of that decision.
FACTUAL BACKGROUND
[3] Mr. Chan stated that in 1988, with his father's help, he established a business, The Yang Xin Daily Products Chemical Factory, in Fuqin City. The business was apparently successful and grew. Because of increased demand for the company's products, Mr. Chan sought a loan from a development fund of the Enterprise Bureau. The Bureau was part of the local government.
[4] Mr. Chan further stated that in order to obtain the loan he had to agree to demands by the Chief, Chen Xian Chai, and the Vice Chief, Xu Shi Xiang, of the Enterprise Bureau that he share profits equally with them. Thereafter, as a result of improper demands by the two government officials, Mr. Chan's business was driven to bankruptcy.
[5] In June of 1995, Mr. Chan's father died. According to Mr. Chan, after his father's funeral the workers of the company refused to return to work unless they were paid the wages then owed to them by the company. Messrs Chen and Xu refused to allow the workers to be paid.
[6] In July of 1995, Mr. Chan found out that Messrs Chen and Xu had sold the assets of the business, keeping for themselves the net sale proceeds after repayment of the loan to the Enterprise Bureau. Mr. Chan then sued Messrs Chen and Xu in the Fuqin City People's Court to try to protect his property.
[7] In response, Mr. Chan was served with a subpoena to appear before the court to answer the charge of "inciting people to sabotage production". Mr. Chan stated that Messrs Chen and Xu had him summoned to court on a false charge with the intent that Mr. Chan be put in prison so as to prevent him from exposing their corrupt practices.
[8] On about August 15, 1995, Mr. Chan went into hiding. He ultimately fled China arriving in Canada on August 28, 1998. He made his claim for refugee status on September 3, 1998.
ISSUES
[9] Mr. Chan's counsel raised three issues with respect to the decision of the CRDD:
| (i) Did the CRDD err in law by applying the wrong test in respect of the objective basis of Mr. Chan's refugee claim?; |
| (ii) Did the CRDD err in law by focussing on whether Mr. Chan was motivated by a particular political belief, instead of whether the authorities imputed a political opinion to him?; and |
| (iii) Did the CRDD err by basing its decision on erroneous findings of fact that were made without regard to the material before it? |
[10] At the conclusion of the hearing, I advised counsel that the application for judicial review would be allowed for reasons to be delivered in writing. These are the reasons for my decision.
ANALYSIS
(i) Did the CRDD apply the wrong test to determine the existence of an objective basis to the well-founded fear of persecution?
[11] It is well established that a person who seeks to be found to be a Convention refugee is not required to establish a probability of persecution. Instead, a claimant need only establish that there is a reasonable chance that persecution would take place should the claimant return to his country of origin. (See Adjei v. Canada (Minister of Employment and Immigration ), [1989] 2 F.C. 680 (F.C.A.)).
[12] In material part, the reasons of the CRDD were as follows:
| The claimant, when describing his father, his father's death and the history of their business - presented himself as quite credible. However, the panel had concerns as to the plausibility of various components of the balance of his written and oral testimony. |
| ... |
| The panel appreciates that the court system is severe in China when compared to Canada. However the panel has to assess whether the claimant's fear of prosecution would result in penalties (if any) that would constitute persecution. |
| ... |
| Though his business became merged with the government, the panel does not believe the claimant's business concerns and resulting complaints of injustice were motivated by any political belief. |
| ... |
| The claimant has not provided evidence, if in fact he were convicted of "inciting people to sabotage production," that the disposition of the court would be unreasonable by international standards and be considered persecutory. The claimant has merely speculated that he might be prosecuted and if convicted he did not give testimony as to what the disposition might be. The panel believes the claimant's fear in China is prosecution and not persecution. |
| ... |
| DETERMINATION |
| The panel, determines that under the circumstances in this claimant's case and in view of the evidence presented, the claimant does not have good grounds to prove he would face persecution if he were to return to China. [emphasis added]. |
[13] Counsel for the Minister submitted that when read as a whole, the reasons of the CRDD do not indicate that a higher standard was utilized. Counsel for the Minister pointed out that the word "would" was first used by the CRDD in the context of considering whether the claimant's fear of prosecution would result in penalties that would constitute persecution. The Minister submitted the appropriate test was used by the CRDD.
[14] I have carefully reviewed the reasons of the CRDD in their entirety. Nowhere in the reasons did the CRDD set forth the proper test to be applied. By virtue of the absence of any articulation of the proper test and of the CRDD's repeated use of the word "would", as well as its determination that Mr. Chan did not have good grounds to "prove" he would face persecution if he were to return to China, it is impossible for me to be satisfied that the CRDD applied the correct test to the claim before it.
(ii) Did the CRDD err by focussing on whether Mr. Chan was motivated by a particular political belief, instead of whether the authorities were imputing a political opinion to him?
[15] It is important to note that the CRDD stated that it found Mr. Chan's testimony credible as it related to his father, his father's death, and the history of their business. The CRDD also accepted as credible Mr. Chan's evidence that his business was driven to bankruptcy due to inappropriate demands made by Messrs Chen and Xu regarding their fifty percent interest in the profits of the business. The CRDD, however, questioned the plausibility of some other parts of Mr. Chan's claim.
[16] Specifically, the CRDD found that although "his business became merged with the government, the panel does not believe the claimant's business concerns and resulting complaints of injustice were motivated by any particular political belief".
[17] At the commencement of its reasons, the CRDD had characterized the issue before it as assessing the evidence of Mr. Chan who "alleges a well-founded fear of persecution due to his political opinion". The panel did not frame the issue as one involving an imputed political opinion. [emphasis added]
[18] However, Mr. Chan's testimony was to the effect that the criminal charges brought against him were politically motivated and were false. In his Personal Information Form, Mr. Chan stated as follows:
| 8. I asked the government to protect my property. In July, 1995, I sued Chen and Xu in the Fuqin City Peoples Court but it was not successful because they had connections inside the court that enabled them to cover up their corrupt actions. Fearing that I would take the case to Superior Court and that the details would become exposed, they accused me of arousing the workers to go on strike, of gathering crowds to cause disorder, and causing damage to the production line. In August, 1995 they had me summoned to court and meant to have me put in prison based on these false charges. |
| ... |
| B.11. I sought help from the authorities in China when I tried to sue Chen and Xu in court. I did not receive help. The corrupt officials got the authorities to make false charges against me and I am afraid of the authorities in China. |
[19] Before the CRDD, Mr. Chan testified that the criminal charges brought against him had a political basis. His testimony was as follows:
| BY REFUGEE CLAIM OFFICER: |
| ... |
| Q It is -- you said that people came to your house to look for you. Who were these people? |
| A The people who work in the People's Court. |
| Q Okay, now are these separate than the -- |
| A You can say they are police who work for the courts. |
| Q Okay. And are they separate from the Public Service Police? The Public Service Bureau? |
| A Yes, it's different. No, it's different. That the police who work for the court is different from the police who work for the PSB. |
| Q Do they sometimes work together when they're looking for one person? |
| A Sometimes like that, yes. For example, that when somebody was killed -- |
| ... |
| A This is considered violent behaviours and, therefore, they have to ask the PSB to -- control the violent situation. And as for me, we are not violent kind of people. We were considered -- we were considered political -- the government, Shi and Chen wanted to persecute me. That is why they use the court -- the police that were in the court to come and look for me. [emphasis added] |
[20] In response to questions put to him by his counsel, Mr. Chan testified that:
| BY COUNSEL: |
| ... |
| A So I try to run away. I went in hiding. |
| Q And why did you do that? |
| A Because of in China those local corruptive governments, they try to protect each other. Because that's why it is so corruptive. As for our lawsuit, that we haven't received a result yet but because of that -- they have connection with the court they want to see me die. Then they would have right-of-way. And because the court itself has relations with them, therefore, they cover-up their corruptive behaviours. That is why. That's why they gave me a subpoena and wanted me to go to court and therefore send me to jail later. |
| Q Okay. And why did you think that they-you would be sent to jail? |
| A Because of other people has that kind of thing happen before. It's -- it's all about those people like us who has no background support. It's people like us that we have no support, have no connection, have no background people. |
[21] I am satisfied that, on the basis of Mr. Chan's testimony that corrupt officials initiated false criminal charges against him, it was incumbent upon the CRDD to consider whether or not Mr. Chan established a claim on the ground of imputed political opinion.
[22] I can find no consideration of this appeal by the CRDD.
[23] Counsel for the Minister conceded that the CRDD could have been clearer in its reasons, but submitted that a review of the totality of the reasons showed that the CRDD did not misdirect itself and properly considered whether the treatment Mr. Chan feared in China was persecution or prosecution.
[24] Despite the argument advanced by counsel for the Minister, I conclude that by focussing on whether or not Mr. Chan's "complaints of injustice were motivated by any political belief", instead of whether a political opinion was being ascribed to Mr. Chan, the CRDD failed to properly apply the definition of Convention refugee.
[25] In view of these two errors, the application for judicial review should be allowed. It is therefore unnecessary for me to consider the third issue posed by Mr. Chan.
[26] Counsel were agreed that no serious question of public importance arises from this application and no question is certified.
"Eleanor R. Dawson"
Judge
Ottawa, Ontario
September 6, 2000