Immigration Matters

A Chinese family fled their home in Guyana in 2015 and came to Canada  claiming  protection from criminals. Their claims were turned down by both Canada’s Refugee Protection Division  and the Refugee Appeal Division  which found that they were neither Convention refugees  nor persons in need of protection  in  Canada.

But the story of their fight to remain in Canada does not end there.

The family  took their case to the Federal Court and the matter has been sent back  to the Refugee Appeal Division  for redetermination.

Let us look at the case of this family which I will refer to as ” the Chen  family ” – a husband, a wife and a minor son.The husband and wife were born in China and in 1994 immigrated to Guyana where they became naturalized Guyanese citizens. Their  son was born in Guyana and is thus a Guyanese citizen by birth.

According to the facts of the case, the husband and wife owned and operated  a restaurant  in Berbice,  Guyana. Between August 2007 and June 2014, they were robbed at gunpoint by unknown persons on three occasions and in December 2010, they were victims of a break-in at their business place and home, located above the restaurant. Fortunately, they were not at home during the time of the break-in.

The husband and wife , who were considered credible by the Refugee Protection Division,  described  in detail the incidents and their interaction with police in their ” Basis of Claim” form.They

stated that in August 2007,  two native men entered their restaurant with a handgun. The men pointed the gun at the family.  hit one of them in the head, and proceeded to steal items from the restaurant.

The two adult members of the Chen family  said they reported the matter to the police and during follow-up meetings, the police demanded a “small cash payment” and told them that “Chinese people always brought trouble”.

They testified that following the December 2010 break-in, they visited the police three times, only to be told that they (the police) would begin investigating ” tomorrow.”They also stated that in August 2013, four men arrived in a van and parked outside the restaurant. Three entered the restaurant with guns, tied their hands, and proceeded to steal food, money and other valuables. They

reported the matter to the police, but were told that “Chinese people always bring a lot of trouble,”

Then, in June 2014, they were robbed by three men. Once again, they reported the matter to the police, and  again, the police blamed  Chinese ” for bringing a lot of trouble”.

In February 2015, they sold their business and made their way to Canada in August 2015, seeking protection from Chinese-targeted violence and complaining of a lack of state protection in Guyana.

In reviewing the evidence, the learned judge of the federal court noted that “The RPD began its analysis by stating that it believed all the allegations made by the claimants. Credibility was not an issue. The RPD analyzed the criminal activity to which the claimants were subjected and found there was no nexus to a Convention 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 claimants were not subjected to a personalized 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”

On appeal, the RAD found that the criminals did not specifically target the claimants or persons of Chinese ethnicity. While the RAD accepted there were crimes committed against Chinese businesses and business-owners, it found that criminality in Guyana is too widespread and prevalent to conclude the claimants were targeted on the grounds of their race. Having found that the claimants faced a generalized risk of victimization due to an elevated crime rate in Guyana, the RAD   also agreed with the RPD’s conclusions that  the claims must fail. .

However, the learned judge said: “While I am not prepared to conclude there is evidence of widespread violence in Guyana, there is certainly evidence of widespread criminality” and he noted  that the RAD appears to have conflated state protection and the concept of persecution based upon race. and concluded the police were not motivated by racism.

The judge found such a conclusion “ to be unreasonable in light of  the Chens’ testimony and their statements found in the” Basis of Claim ” Form.

RAD had also states that “local failures to provide effective policing do not amount to a lack of state protection, unless they are part of a broader pattern of state inability or refusal to provide protection.”

The judge stated that this case is 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. Police – local and national – are required to uphold the rule of law and not create ‘soft targets’ for criminals because of systemic racism.”
The judge found the decision to be unreasonable in that it lacks justification, transparency and intelligibility and ordered that the matter be remitted to a differently-constituted panel of the RAD for predetermination.

SUKHRAM  RAMKISSOON   is a member of ICCRC  and specialises in Immigration Matters at No. 3089 Bathurst Street,  Suite 219A, Toronto, Ontario. Phone 416 789 5756.