Xin Hao Ye v. Minister of Citizenship and Immigration

Between
Xin Hao Ye, applicant, and
The Minister of Citizenship and Immigration, respondent

[2002] F.C.J. No. 261
2002 FCT 201
Docket IMM-276-01

Federal Court of Canada - Trial Division
Toronto, Ontario
O'Keefe J.

Heard: October 31, 2001.
Judgment: February 25, 2002.
(26 paras.)

       Aliens and immigration — Admission, refugees — Grounds, political activity — Persecution, protection of country of nationality — Credible basis for claim.

       Application by Ye for judicial review of a decision of the Immigration and Refugee Board that she was not a Convention refugee.  Ye was a Chinese citizen.  She feared persecution based on her anti-government political opinion.  The local government in her village expropriated land for the construction of a highway.  She and her husband protested to the local authorities when they discovered that the local government received more compensation from the higher level of government than it paid to the villagers.  Ye fled to Canada after the authorities arrested her husband.  The Board rejected the claim based on evidence that the Chinese state had made a serious effort to eliminate corruption.  Ye was aware of anti-corruption bureaus where one could complain about corrupt officials.  She never complained to such an office.  The Board concluded that Ye failed to rebut the presumption of state protection.

       HELD:  Application dismissed.  The Board's decision was reasonable.

Statutes, Regulations and Rules Cited:

Immigration Act, R.S.C. 1985, c. I-2, s. 82.1.

Counsel:

Carla Sturdy, for the applicant.
Angela Marinos, for the respondent.

REASONS FOR ORDER AND ORDER

1      O'KEEFE J.:—  This is an application for judicial review under section 82.1 of the Immigration Act R.S.C. 1985, c. I-2 of the decision dated December 19, 2000 by a single member panel of the Immigration and Refugee Board (the "Board"), wherein the Board determined that the applicant was not a Convention refugee.

2      The applicant seeks an order setting aside the decision of the Board and referring the matter back to the Immigration and Refugee Board for redetermination before a differently constituted panel of the Board.

Background Facts

3      The applicant is a 40 year old citizen of China from Renhe town, Guanhou city in Guandong Province.  The applicant allegedly fears persecution based on her anti-government political opinion.

4      According to the applicant, the following events took place in China.  The applicant's local government in China expropriated some land in her village in 1998 so that it could build an airport.  A number of villagers protested against an unreasonable compensation package that was provided to those who lost their land.  Some of the protesting villagers were arrested by police.

5      In 1999, the government expropriated the applicant's land to build an expressway to the airport.  The applicant and her husband learned that the local government had received more compensation from the higher level of government than it was paying the villagers.

6      Along with other local villagers, the applicant and her husband approached a local government office to complain, but were told to leave.  The government officers called the Public Security Bureau ("PSB"), who arrested the applicant's husband and two others.  The applicant fled and escaped to a relative's home.  The applicant subsequently left the country to claim refugee status in Canada.

7      The Board rejected the applicant's claim on the basis that there was evidence that the Chinese state was making a serious effort to stamp out corruption.  The Board noted that the applicant was aware of anti-corruption bureaus where one could launch complaints about corrupt officials, but she never complained to such an office.  In rejecting the applicant's application, the Board determined that the applicant had not rebutted the presumption of state protection.

Applicant's Submissions

8      The applicant submits that the Board erred in relying on the issue of state protection in rendering its decision.  The applicant contends that state protection applies only to situations where the agent of persecution is a non-state agent and that it should not have applied in this case.

9      The applicant submits that the Board erred in assuming that corrupt local officials were non-state agents, as the Board should have assumed the local officials were state agents and then dealt with the question of whether they were acting outside their scope of authority so as to engage the issue of state protection.

10      The applicant submits that the Board's reasoning is perverse in law as it suggests that the applicant should have gone to an anti-corruption unit and then she would not have had to go to a government office to seek redress, and would therefore not have had a confrontation with officials that led her to be wanted by the Public Security Bureau.

11      The applicant submits that the she did seek out appropriate state protection by approaching the local government to discuss the expropriation of property.

12      The applicant submits that the Board cannot find that she did not seek government protection on the basis that she should have approached the anti-corruption office rather than the local government.

Respondent's Submissions

13      The respondent submits that the state is presumed capable of protecting its citizens and a refugee claimant must provide clear and convincing confirmation of the state's inability or unwillingness to protect him or her.  The respondent submits that the Board did not err by determining that the applicant did not successfully rebut this presumption and that it was open to the Board to refuse the applicant's claim.

14      The respondent cites the following passage from Rothstein J. in Xue v. Canada (Minister of Citizenship and Immigration) [2000] F.C.J. No. 1728 to submit that the decision of the Board was justified:

         There was documentary evidence before the Board that the Chinese government's initiatives to crack down on corruption are still inadequate and too weak to stamp out corruption ... . The fact that there were many anti-corruption offices in China, one of which the applicant knew of in his own vicinity was sufficient for the Board to conclude that the applicant should have at least approached the anti-corruption office.  Even though the Board made no reference to the evidence that suggests that anti-corruption efforts are weak, I cannot say it was unreasonable for the Board to have concluded that the applicant should have at least approached the anti-corruption office. 

15      The respondent submits that if there is evidence upon which the Board could conclude that state protection is available to the applicant, the Court should not intervene unless the applicant demonstrates that the decision is patently unreasonable.  The respondent submits that such evidence was before the Board and the decision was not patently unreasonable.

Issue

16      Did the Board make a reviewable error?

Analysis

17      This Court has consistently held that the issue of the availability of state protection is a matter within the jurisdiction and expertise of the CRDD.

18      In this case, the Board basically found that the applicant had not led sufficient evidence to rebut the presumption of the availability of state protection for the applicant.  The Board found that the applicant did not complain to the anti-corruption office set up by the government to deal with complaints about corrupt officials.

19      At the hearing before the Board, the applicant admitted that she knew about the anti-corruption office.  The applicant did not have any experience with the anti-corruption office but believed it could not help her.  As the Board correctly pointed out, the documentary evidence establishes that a large number of anti-corruption offices have been established in an effort to stamp out corruption by government officials.

20      As MacKay J. stated in Milev v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 907, Docket IMM-1125-95 (June 20, 1996) (F.C.T.D.) at paragraph 19:

         ... The fact that the state does not provide perfect protection is not, in itself, a basis for determining that the state is unwilling or unable to offer reasonable protection in the circumstances.                       

21      In the present case, although the system of anti-corruption offices may not operate perfectly in all corruption cases, it appears that the offices do work in many cases.

22      The applicant also argued that she sought government protection by going to the local authorities who (she alleged) kept part of the compensation paid to her for her land.  I do not see this as seeking state protection.  She was trying to be paid for her land.

23      I am of the view that the Board's decision that the applicant had not led sufficient evidence to rebut the presumption of state protection is a reasonable decision and one that the Board was entitled to make.

24      The application for judicial review is therefore dismissed.

25      Neither party wished to certify a serious question of general importance.

ORDER

26      IT IS ORDERED that the application for judicial review is hereby dismissed.

O'KEEFE J.