Date: 20001004
Docket: IMM-2883-99
BETWEEN:
BO CHAI CHO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is an application for judicial review of the Immigration and Refugee Board's decision (the "Board") rendered orally on April 7, 1999 (written reasons signed on May 17, 1999), wherein the Board determined that the applicant was not a Convention refugee.
FACTS
[2] The applicant is a 39 year old citizen of Guangzhou in the People's Republic of China. He claims status as a Convention refugee because he fears persecution for reasons of perceived political opinion and past persecution by the state.
[3] The applicant franchised a fish farm in China with his business partner, Yang, He Ping. Upon franchising their fish farm, they were approached by local Police Security Bureau (PSB) officers who wanted free fish. The applicant gave free fish to the local branch office of the PSB until he began experiencing financial difficulties.
[4] When the applicant refused to provide the PSB with free fish, he was beaten along with his business partner. The applicant argued with the officers. The argument was witnessed by others on the farm, who attempted to defend the applicant. As a result, the PSB accused the applicant of inciting the people against the government.
[5] After the incident, the applicant feared repercussions and went to stay with a relative, during which time the PSB went to his home to arrest him. A wanted poster was issued for his arrest. While in hiding, the applicant got information that his business partner had been arrested in his relative's home. After arriving in Canada, the Applicant learned that his business partner was arrested and sentenced to three years' imprisonment.
THE BOARD'S DECISION
[6] The Board gave its decision orally on April 7, 1999 and written reasons were rendered on May 17, 1999. The Board decided the applicant's claim on the state protection issue and did not give reasons on the issues relating to identity and credibility.
[7] The Board concluded that the applicant's actions against the corrupt officials could be and may already be perceived as anti-government opinion as a result of a cover-up by the corrupt officials who were extorting fish and revenue from the applicant's farm. However, the Board was of the view that the applicant failed to approach the state for protection in order to head the corrupt officials off.
[8] The Board based it's decision on documentary evidence which indicated that the Chinese government was making serious efforts to stamp out official corruption. The documentary evidence showed that there is 3,700 [stated in the oral decision] or 37 000 [stated in the written decision] anti-corruption offices in China charged with the duty of prosecuting corrupt government officials. There was also evidence which indicated that Chinese citizens who were victims of corruption were successfully suing.
[9] The Board stated that the claim failed because the applicant did not approach one of the anti-corruption offices, particularly given the fact that he had heard of them.
[10] The Board found that protection may have been forthcoming had the applicant attempted to approach one of the anti-corruption offices in China.
ISSUE
[11] Did the Board err in ignoring the Notice of the People's Procuratorate?
ANALYSIS
[12] At the hearing, the applicant's counsel mentioned that the applicant gave up the argument on the bench's decision.
Did the Board err in ignoring the Notice of the People's Procuratorate?
[13] In a case where the agents of persecution are corrupt State officials, a claimant could be required to seek state protection of his country of origin, if there is evidence that the State offers adequate and reasonable protection against the abuse of its agents.
[14] In the case at bar, the Board was entitled to accept the evidence, at page 2 of the Board's decision, that showed that the People's Republic of China condoned corruption by its agents and that the State offered protection to its citizen by the intermediary of anti-corruption bureaus. There was also evidence that people used legal representation successfully to ward off corrupt officials agents.
[15] Nevertheless, the protection offered by the State has to be adequate and reasonable in the particular circumstances of the applicant's situation.
[16] The applicant submits that the Board erred in ignoring the Notice of the People's Court of Baiyun District.
[17] The Board does not have to mention every document before it. As stated in Cepeda-Gutierrez v.Canada (M.C.I) (1998), 157 F.T.R. 35 (F.C.T.D.) at paragraph 16:
| On the other hand, the reasons given by administrative agencies are not to be read hypercritically by a court (Medina v. Canada (M.E.I) (1990), 12 Imm. L.R. (2d) 33 (F.C.A.)), nor are agencies required to refer to every piece of evidence that they received that is contrary to their finding, and to explain how they dealt with it (see, for example, Hassan v. Canada (M.E.I.) (1992), 147 N.R. 317 (F.C.A.). That would be far to onerous a burden to impose upon administrative decision-makers who may be struggling with a heavy case-load and inadequate resources. |
[18] However, in certain circumstances, the failure of the Board to mention evidence can amount to an error in law.
[19] In Yu v. Canada (MCI), July 15, 1998(IMM-3696-97), [1998] F.C.J. No. 1043, (F.C.T.D.), the Board failed to mention the evidence that the claimant, a citizen of China, was being sought by the PSB in order to determine if the claimant was a member of an underground house church. The Court held:
| The Applicant's second submission is that the Refugee Division erred by failing to mention the summons in its decision. In Gourenko v. Solicitor General of Canada (1995), 93 F.T.R. 264, Simpson J. wrote at page 264: |
| However, the question is when is a document so important that it must be specifically mentioned in the decision. Or put another way, when will a failure to refer to a document be considered a reviewable error? |
| In my view, a document need only be mentioned in a decision if, first of all, the document is timely, in the sense that it bears on the relevant time period. Secondly, it must be prepared by a reputable, independent author who is in a position to be the most reliable source of information. Thirdly, it seems to me that the topic addressed in the document must be directly relevant of the applicant's claim. ... In addition, if a document is directly relevant to the applicant, one would expect to see that document addressed in the Refugee Division's reasons. |
| I am satisfied the Refugee Division erred by failing to mention the summons in its decision. Following Gourenko, supra, this was timely document, there was no contention that it was not reliable, it is directly relevant to the applicant's claim and it is directly relevant to the facts he alleged. In my opinion, it should have some bearing upon the decision of the Refugee Division and it is unclear whether they considered it and it is unclear how much weight the Refugee Division would give to this document. |
[20] In Cepeda-Gutierrez, supra, it was held by Evans J. at paragraph 27:
| In my view, the evidence was so important to the applicant's case that it can be inferred from the Refugee Division's failure to mention it in its reasons that the finding of fact was made without regard to it. This inference is made easier to draw because the Board's reasons dealt with other items of evidence indicating that a return would not be unduly harsh. The inclusion of the "boilerplate" assertion that the Board considered all the evidence before it is not sufficient to prevent this inference from being drawn, given the importance of the evidence to the applicant's claim. |
[21] In view of the above jurisprudence, I find that the Board erred in failing to mention the Notice of the People's Procuratorate. That notice was sent to the applicant's partner, but cannot be separated from the corruptive situation they were both in. I find that the notice is directly relevant to the applicant's claim and that the Board should have addressed the impact of this evidence on the availability of adequate state protection against arrest and prosecution from corrupt officials. As was stated in Yu, supra, it is unclear if the Board took into account this particular evidence and how much weight it would give it.
[22] The following has not been raised by either parties but the evidence on which the Board relied in order to determine that anti-corruption bureaus would afford adequate State protection also mentions the limited help that the bureaus can offer.
[23] The exhibit R-3, Response to Information Request, Number: CHN 299937.E states:
| Despite these government initiatives to crack down on corruption, the China Daily reports that the country's supervision system is still in adequate and too weak to stamp out corruption (5 Aug. 1998.) An editorial in the China Business Times calls for a "public, independent supervision system" to stamp out corruption (ibid.). In An Introduction to the Legal System of the People's Republic of China, author Albert H.Y. Chen states four reasons why the independence of the procuratorates is compromised in practice: the influence that can be exercised by the local Party committee and local People's Government to appoint, promote and remove procuratorate staff; their status is lower than what is conferred on them by the Constitution; their supervision over public security bodies is limited by their lack of power to enforce recommendations and to impose penalties; and the lack of legal training of their prosecutors (1993, 126-17). |
[24] In light of this evidence, the importance of addressing the Notice of the People's Procuratorate on the issue of State protection is enhanced. Therefore, I cannot conclude that the statement of the Board, that it considered all the evidence before it, is sufficient to prevent the inference that the finding of fact was made without regard to the evidence.
[25] This judicial review is allowed and the file is to be returned to another panel for reconsideration.
[26] Neither counsel suggested a question for certification.
Pierre Blais
Judge
OTTAWA, ONTARIO
October 4, 2000