Date: 20050712
Docket: IMM-8722-04
Citation: 2005 FC 960
BETWEEN:
YING JIN LIN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
LUTFY C.J.
[1] The applicant, Ying Jin Lin, seeks judicial review of the refusal to grant her application for humanitarian and compassionate consideration under section 25 of the Immigration and Refugee Protection Act S.C. 2001, c. 27. The decision was made some three years after the application was filed.
[2] Ms. Lin professes to have been a practising member of the underground Roman Catholic church in Fujian province in China. She arrived in Canada in July 1999, on the first boat of the marine arrivals purportedly organized by "snakeheads". The evidence discloses that she has been an active member of Roman Catholic parishes in Vancouver over the past six years.
[3] The applicant came to Canada without her family. When she left China, her children were teenagers. They continue to live in China. The applicant is now divorced from her husband and is living with another Chinese national in Vancouver.
[4] Ms. Lin's refugee claim was denied. In his reasons of 1999, the presiding member of the Convention Refugee Determination Division (CRDD) explained why he was not satisfied that the applicant demonstrated a commitment to Christianity:
In sum, I find the claimant's credibility in respect of her alleged persecution in China as a member of the underground Catholic Church decidedly wanting. I do not find, underpinning her evidence, a believable motivation, an idealistic commitment to the Christian faith, that is consonant with or believable when we weighed against the very palpable risks that the documentation indicates can attend religious observation in an underground Roman Catholic church, and that has been described about not only in various documents but by Dr. Graham Johnson. I make that observation in full recognition of the fact that the claimant is not a person of education or sophistication. But I must conclude that the claimant has not discharged the obligation of demonstrating that she is a credible and reliable witness in respect to the central elements of her claim, i.e. that she is a committed and practising adherent of an underground chapter of the Roman Catholic Church in China and is at risk of persecution on this basis. There I must find that she is not a Convention refugee.
[Emphasis added]
[5] In April 2000, an officer concluded that the applicant was not a member of the Post-Determination Refugee Claimants in Canada class (PDRCC). The applications seeking leave to challenge the negative CRDD and PDRCC decisions were dismissed due to the applicant's failure to perfect the court record in both proceedings.
[6] The applicant's principal submission is that the immigration officer's risk analysis and the rationale accompanying the negative humanitarian and compassionate decision are flawed. I am not satisfied that the argument is well-founded.
[7] I agree that risk is a factor to be considered in assessing "unusual and undeserved or disproportionate hardship" within the context of a humanitarian and compassionate application: Beluli v. Canada (Minister of Citizenship and Immigration), 2005 FC 898 at paragraph 10 and Pinter v. Canada (Minister of Citizenship and Immigration), 2005 FC 296 at paragraph 5.
[8] It is also true that the applicant bears the burden to establish the grounds for humanitarian and compassionate consideration. The weighing of the relevant factors is the responsibility of the Minister's delegate. It is not the role of the courts to re-examine the weight given to the different factors by the immigration officer: Legault v. Canada (Minister of Citizenship and Immigration), 2002 FCA 125 and Huang v. Canada (Solicitor General), 2004 FC 1330.
[9] In this case, the immigration officer did consider the risk factors and specifically referred to them among the considerations which, in his mind, would not support a positive humanitarian and compassionate decision.
[10] Also, in my view, the risk analysis was not truncated. The reasons for decision prepared by the immigration officer indicates a consideration of the information by the applicant from the negative credibility refugee determination through the five years she participated in various Roman Catholic parishes in Vancouver.
[11] The applicant relies on the principle that freedom of religion also includes the freedom to demonstrate one's religion in public and that any prohibition against the public expression of one's religious beliefs can constitute persecution: Fosu v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1813 (QL) (T.D.); Husseini v. Canada (Minister of Citizenship and Immigration), 2002 FCT 177; and Appellant S395/2002 v. Minister for Immigration and Multicultural Affairs, 2003 HCA 71, a decision of the High Court of Australia. In my view, it was open to the immigration officer to conclude that there was an insufficient factual underpinning in this case to support the application of the principle relied upon by the applicant. As I understand the immigration officer's decision, he was not satisfied that the applicant's personal circumstances met the threshold referred to in the documentary evidence concerning the risks faced by underground or overt practising Roman Catholics in Fujian province.
[12] Finally, the applicant's submission that the immigration officer failed to provide adequate reasons must fail. In my view, the immigration officer's analysis, on the factual basis presented to him by the applicant, is fully consistent with the criteria required by the case law for the sufficiency of reasons: VIA Rail Canada Inc. v. National Transportation Agency, [2001] 2 F.C. 25. The rationale set out by the immigration officer, in my view, allowed the parties and the Court to understand his decision for the purposes of this judicial review.
[13] For these reasons, this application for judicial review will be dismissed. Neither party suggested the certification of a serious question and none will be certified.
ORDER
THIS COURT ORDERS that
This application for judicial review is dismissed.
__________________________
C.J.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-8722-04
STYLE OF CAUSE: Ying Jin Lin
- and -
The Minister of Citizenship and Immigration
PLACE OF HEARING: Vancouver
DATE OF HEARING: June 29, 2005
REASONS FOR ORDER : LUTFY, CJ
DATED:
APPEARANCES:
Mr. Shane Molyneaux FOR APPLICANT
Mr. Peter Bell FOR RESPONDENT
SOLICITORS OF RECORD:
Elgin, Cannon & Associates FOR APPLICANT
(Vancouver)
Mr. John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
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