A Chinese family who fled Guyana two years ago and have attempted to gain refugee status in Canada on the basis of being targeted by bandits purely because of their ethnicity was late last month granted a reprieve when a Federal Court ruled that the initial denial of their application be reviewed.
In his December 20, 2016, judgement Justice Richard Bell found that the decision made by the Refugee Appeal Division of the Immigration and Refugee Board (RAD) against Jieling Cao and her spouse Jianrong Ye, and their minor child, was “unreasonable in that it lacks justification, transparency and intelligibility.”
“The application for judicial review is allowed without costs and the matter is remitted to a differently-constituted panel of the RAD for redetermination,” the judge said in his ruling seen by this newspaper.
The application for judicial review was filed by the family on February 17, 2016 after the RAD panel found that the applicants were neither Convention refugees nor persons in need of protection as contemplated by sections 96 and 97 of the Immigration and Refugee Protection Act [IRPA], SC 2001, c 27.
According to the court document, all members of the family are citizens of Guyana, with the adults being born in China and immigrating to Guyana in 1994, where they became naturalized Guyanese citizens. Their son was born in Guyana and acquired citizenship there.
They were small business owners in Berbice, where they operated a Chinese restaurant. Between August 2007, and June 2014, they were robbed at gunpoint by unknown perpetrators on three occasions. In addition, in December 2010, they were victims of a break-and-enter into ther restaurant, and home which was located above the restaurant. They were not home during this incident. They were considered credible by the Refugee Protection Division (RPD) and thoroughly described the incidents and their interaction with police in their Basis of Claim form.
According to the information provided, in August 2007 two men entered their restaurant with a handgun and they were assaulted and items were stolen. The matter was reported to the police, however, according to the family, during follow-up meetings, the police demanded a “small cash payment” and told them that “Chinese people always brought trouble”. The wife testified that, following the December 2010 break-and-enter, they visited the police three times, only to be told that they (the police) would begin investigating “tomorrow”. In August 2013 the family was again robbed by bandits who arrived in a van and parked outside the restaurant. They then entered the restaurant with guns, tied up the family and robbed the restaurant of money, food and other valuables.
The Applicants reported the matter to the police, but were told that “Chinese people always bring a lot of trouble.” Finally, in June 2014, they were robbed again and upon reporting the matter they were told for a third time that “Chinese families known for bringing a lot of trouble”.
The family then sold their business in February 2015, and travelled to Canada where they sought protection from Chinese-targeted violence and a lack of state protection.
In its decision, the RPD said it believed the allegations made by the family and that credibility was not an issue, but they had analysed the criminal activity to which the family had been subjected to, and found there was no nexus to a Convention refugee ground. It concluded that on a balance of probabilities, the unknown agents of persecution were not motivated by the victims’ race but by money. The RPD further found that the Applicants were not subjected to a personalised risk because the incidents were random acts perpetrated by common criminals. The panel therefore found that the Applicants were not persons in need of protection.
Justice Bell in his decision noted that the Applicants in their application contended that they fall within the scope of section 96 and are Convention refugees for two reasons: first, they are victims of crime which is targeted at persons of Chinese ethnicity in Guyana; second, the Guyanese police were complicit in their persecution.
The judge said that while he was not prepared to conclude there is evidence of widespread violence in Guyana, “there is certainly evidence of widespread criminality.”
He pointed out that in its analysis, the RAD concluded the police were not motivated by racism when it stated: “[…] after being given ample opportunity, the Appellant had very little to say which would suggest racism on the part of the police. In the alternative, if one were to find that at least one comment from police had racial undertones, the RAD reminds the Appellants that such would be a local failure by police.”
By the judge said he found such a conclusion “unreasonable” when he looked at the testimony by the family and their statements found in the Basis of Claim Form, all of which were deemed credible.
He further said that the case was not about “local failures” to provide effective policing; rather, it is about an allegation of racially motivated crime and local police misconduct motivated by racism. “Guyana is a multi-party democratic country with a constitution not unlike Canada’s… local and national – are required to uphold the rule of law and not create ‘soft targets’ for criminals because of systemic racism,” the judge said.
Further, the RAD he said, recognizes that foreigners who are “soft targets” may create a nexus to a Convention ground. It states: “If the criminals were robbing the Appellants simply because the Appellants, as foreigners were “soft targets” and no one else was being robbed, then the RAD may find that the criminal acts were specifically targeted for a Convention ground. The violent crime statistics prove that this is not the case either.”
It was for the above stated reasons that the judge found the initial decision to be “unreasonable in that it lacks justification, transparency and intelligibility.”