Date: 20100219
Docket: IMM-3975-09
Citation: 2010 FC 186
Vancouver, British Columbia, February
19, 2010
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
GUO
TIAN ZHOU
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction and Background
[1]
This
judicial review application is a challenge by Guo Tian Zhou, a citizen of China, to the January
27, 2009 decision by Pre-Removal Risk Assessment (PRRA) Officer Cope (the PRRA
Officer) determining Mr. Zhou would not be at risk of persecution, danger of
torture, risk to life or risk of cruel and unusual treatment or punishment if
returned to China.
[2]
Mr.
Zhou’s flight from China to this country in order to seek Canada’s protection
centers on his practice of Falun Gong in China which began
in January 1999 because he suffered from frequent headaches. He was happy with
the results and continued to practice it “almost everyday at South Village Park with other
practitioners.” On July 22, 1999, the Chinese government banned Falun Gong
defining it as a cult. He continued practicing it at home or at the home of the
friend who had introduced him to it. In June 2000, he was discovered and warned
to stop it; he did not. In September 2000 the security personnel came
again, told him to write a confession and report to the police station. Rather
than doing so, he went into hiding and travelled to Canada in early
2001.
[3]
His
refugee claim was rejected on December 17, 2001. The Refugee Division ruled he was not
credible and there was insufficient evidence to make a finding of a
well-founded fear of persecution. Mr. Zhou did not seek leave to challenge
the decision. Its main findings were:
• In
China, since June
2000, he only practiced Falun Gong in the privacy of his home behind a locked
door.
• There
is no evidence he would do so otherwise if returned to China.
• He
was unable to describe the benefits of practising Falun Gong and, in
particular, was unable to describe any spiritual or other benefits from the
practice.
• He
has a basic understanding of Falun Gong but did not know its components, which
led the Refugee Division to find Mr. Zhou was not a devout follower of
Falun Gong nor would he continue to practice it after return to China in a manner
that would draw the attention of the authorities.
• There
is a lack of evidence that he is sought by the authorities in China as a Falun
Gong practitioner: (1) he is not a leader or Master of Falun Gong; (2) he could
not link the officials who visited him to the PSB; (3) there was no involvement
of his neighbourhood committee, which would be expected in a small village; (4)
there are no charges against him; (5) no documents were served on him
whether while in China or since his departure; (6)his name is not posted on
the village notice board in regard to his alleged infraction; and (7) he was
able to obtain a valid USA visa using his own documents and an allegedly
fraudulent passport and leave China five months after being told to report to
the police.
• Should
he return to China, it is not likely Mr. Zhou would come to the attention of the
authorities and be severely treated on account of his Falun Gong activities
despite the existence of documentary evidence suggesting an increase in the
intensity of the PRC crackdown in 2002 because: (1) he testified that while in
Canada he continued practicing in the privacy of his apartment and not in a way
that would come to the knowledge of the Chinese authorities in Canada; (2)
he was unaware of any Falun Gong organizations in Canada; (3) there is no
persuasive evidence he is a devotee or would be identified as a Falun Gong
practitioner; (4) there is no evidence, other than his own testimony which
is not credible, that he is being sought by the authorities or that he left the
country illegally.
[4]
As
an alternative finding, if it was wrong on credibility, the Refugee Division
was of the view he had no well-founded fear of persecution if he returned to
China because he would most likely face a fine since he had never left China before and
had no record with the Public Security Bureau (PSB). Such fine would not be
persecutory in nature and any incarceration for failure to pay, a law of
general application.
[5]
As
mentioned, Mr. Zhou did not seek leave to commence a judicial review of this
decision but he did file, on February 5, 2002, an application to be
recognized as a member of the Post-Determination Refugee Claimants in
Canada Class (PDRCC). However, this application was never decided presumably
because when the Immigration and Refugee Protection Act (IRPA) came into
force in June 2002, the PDRCC ceased to exist and any outstanding applications
were transferred for consideration as a PRRA which, in Mr. Zhou’s case,
occurred only on June 25, 2008, when he was invited to update his PDRCC
submissions. I should mention that previously on March 14, 2008, Mr. Zhou
submitted an application to become a permanent resident in Canada on H&
C grounds. I also add the applicant made his submissions without benefit
of legal counsel.
[6]
There
is some confusion in the record as to when the PRRA decision was actually
served on Mr. Zhou. An application for an extension of time was made; nothing
turns on it because I indicated a very important factor to extend time was
whether the judicial review application had merit and I preferred hearing
the matter and deciding it on a substantive basis.
[7]
There
is another decision of this Court which should be mentioned. On August 13,
2009, my colleague Justice Michel Shore stayed Mr.
Zhou’s removal from Canada and subsequently on November 26, 2009, granted
leave to commence this judicial review application. He was of the view Mr Zhou
“has raised a serious issue of but one key piece of evidence and that is in
respect of the summons.”
II. The PRRA Decision
[8]
The
fundamental perspective of the decision under review is the PRRA Officer’s
recognition the documentary evidence established “there is credible evidence
of persecution of some Falun Gong practitioners.” He had to decide which
Falun Gong practitioners would likely be at risk of persecution. In other
words, the decision-maker had to conduct a risk profile analysis of Mr. Zhou.
He turned to the June 2008 UK Home Office, quoting a UNHRC report, stating:
… there have since then (2001) been no
known public manifestations of Falun Gong practitioners in China. Secondly, although it is still correct
to say that membership per se does not adequately substantiate a claim to
refugee status, and members are not ‘sought out” at home, even lower level
members may risk longer-term detention if they go out and practice in public.
Likely punishment would be detention without trial for approximately four years
in so called ‘reform through labour’ camps and (extra-judicial) police beatings
that often accompany such detention. Thus, the likelihood of members/practitioners
returning to China now and engaging in public
activities is low.
[My emphasis]
[9]
The
evidence which was before the PRRA Officer consisted of:
a. the
applicant’s submissions
b. two sets of
photographs showing Mr. Zhou performing movements in front of a sign saying
“Falun Xiulian DafaVoluntary Teaching”
c. 2003 and 2008
letters from his wife saying police regularly attend their home
d. a Summons
dated 16 November 2007 notifying the applicant to appear on November 27,
2007
e. letters from
his brother, sister and co-worker, who all reside in Canada, stating
among other things that he is a Falun Gong practitioner
f.
the
applicant’s documents on the treatment of Falun Gong practitioners
g. other
publicly available sources of information such as the “US DOS Country Report
for China 2008” and
the “US DOS 2007 Religious Freedom Report”
[10]
The
PRRA Officer also noted because this was a Pre-IRPA case “all evidence will be
considered.” In other words, he was not constrained by the new evidence rule
applicable to PRRA cases.
[11]
The
main evidentiary findings made by the PRRA Officer were:
(1) While
he was not bound by the Refugee Division’s decision and recognized it was made
seven years ago, he wrote: “However, I find that the applicant has provided
little to address its findings with regard to his profile as a Falun Gong
practitioner.”
(2) He
analyzed the applicant’s statement that as soon as he arrived in Canada he practiced
weekly at Queen Elizabeth Park. He examined the photographs and considered the
letters he received from his brother, sister and co-worker. He found that
evidence, for various reasons, “insufficient evidence that the applicant
has practiced weekly and continues to do so.”
(3) Mr.
Zhou made little attempt to explain the principles of Falun Gong in his
submissions finding “the applicant’s inability to articulate, even in basic
terms, the connection he has to Falun Gong suggests, as the CRDD found, he
is not a devoted follower of Falun Gong teachings.”
(4) He
considered the summons sent by his wife in the following terms:
I have considered the summons sent by the
applicant’s wife. The document appears to have been printed on plain paper
with no security features. In her letter, the applicant’s wife advises
that Public Security Bureau (PSB) officials came to their home to deliver
the document and asked that he present themselves [sic] by the date
shown. There is no suggestion why the PSB would choose to issue a summons seven
years after the applicant’s first encounter with them. There is little
indication that similar documents were issued by the authorities since the
applicant left China. I give this document little
weight and find it insufficient to lead me to find that, on a balance of probabilities,
the PSB is actively seeking the applicant seven years after what appears to be
a minor encounter.
[12]
The
PRRA Officer expressed his overall conclusion this way:
The applicant has presented some evidence
that he has practiced Falun Gong while in Canada. As noted above, there is little
evidence that the applicant is able to articulate the importance of Falun Gong
in his life, something one might reasonably expect, given that he left his job,
his wife and sons rather than face a situation in which he would be compelled
to abandon the practice. He has not suggested that he would publicly practice
Falun Gong in China and I note that he did not do so before traveling to Canada. I find little evidence that
the applicant is similarly situated to outwardly active Falun Gong
practitioners or protesters.
III. The Applicant’s Arguments
[13]
The
applicant’s counsel attacked the decision in a variety of ways. She submits the
tribunal erred:
(1) In
not granting the applicant a hearing since his credibility was impugned;
(2) There
were serious administrative delays in the handling of his file that make it
extraordinary;
(3) He
had vested rights as a PRDCC claimant;
(4) The
PRRA Officer misconstrued or ignored relevant evidence.
IV. Analysis and Conclusions
[14]
In
her memorandum at paragraph 20, counsel for the respondent objected to
materials in the applicant’s record which were not before the PRRA Officer. She
refers to well-known jurisprudence that evidence post-dating the decision under
review is inadmissible in a judicial review application. She is correct on the
point. These materials cannot be considered.
[15]
I
will quickly dispose of the following legal arguments raised by counsel for the
applicant.
[16]
First,
the argument Mr. Zhou was entitled to an oral hearing has no merit. Pursuant to
paragraph 113(b) of IRPA “a hearing may be held on the basis of the prescribed
factors spelled out in the Immigration and Refugee Protection Regulations
(IRPR). Pursuant to section 167 of the IRPR, an applicant is only entitled to
an oral hearing if there is “evidence that raises a serious issue of the applicant’s
credibility.” It is clear the PRRA Officer did not base his decision on the
lack of credibility of what Mr. Zhou advanced, but on the insufficiency of that
evidence. See Ferguson v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1067.
[17]
Second,
there is no substance to Mr. Zhou’s argument he is entitled to relief because
of the delay in processing his application. The applicant has advanced no
cogent evidence he was prejudiced by the delay, and if he felt that his family
was, he had a legal remedy readily at hand – mandamus – which he did not seek.
[18]
Third,
Mr. Zhou has no vested rights in his PDRCC application. Section 190 of IRPA is
a transitional clause which provides that any application pending or in
progress before June 2002 is governed by IRPA and not the old Immigration
Act. Section 346 of the IRPR makes it clear an outstanding PDRCC becomes a
PRRA application which is what occurred here.
[19]
This
leaves for consideration the treatment of the evidence made by the PRRA Officer
and the findings that flowed from such treatment. The Supreme Court of Canada
has told the courts that they are not entitled to reweigh the evidence before a
tribunal and can only interfere in limited circumstances. (See, for example, Canadian
Union of Public Employees, Local 301 v. Montreal (City) at para. 85 and Mugesera
v. Canada (MCI), [2005] 2 S.C.R. 100 where the Supreme Court of Canada
specified the court’s judicial review function does not permit it to review and
re-assess findings of fact by an administrative tribunal unless a reviewable
error has been demonstrated.)
[20]
The
Supreme Court of Canada in two recent cases has re-emphasized the considerable deference
which must be given to the fact-finding functions of administrative tribunals
(See Dunsmuir v. New Brunswick, 2008 SCC 9 and Canada
(MCI) v. Khosa, 2009 SCC 12, at para. 47)
[21]
During
the hearing, I informed counsel for the respondent that I was particularly
concerned with the following factual findings made by the PRRA Officer: (1) his
finding on the summons; (2) his finding on whether he ignored the evidence
that Mr. Zhou publicly practiced Falun Gong in a park in China before
the 1999 crackdown; and (3) he might have made a finding on the basis of no evidence
when he maintained the view of the Refugee Division. Mr. Zhou did not satisfy
him he could articulate the teachings of Falun Gong. All of these concerns
by the Court were aimed at determining whether the decision-maker had erred in
such a manner as would warrant this Court’s intervention in the limited circumstances
available to it to set aside a finding of fact made by the PRRA Officer.
[22]
After
hearing counsel for the respondent and counsel for the applicant on those
specific points, I am persuaded the PRRA Officer’s assessment of the evidence
fell within the ambit of his fact-finding functions such that this Court cannot
intervene. This view also covers a point which counsel for the applicant raised
early in her argument – that the PRRA Officer had erred in saying only Falun
Gong practitioners were exposed to risk from the authorities in China.
[23]
One
last point. Counsel for Mr. Zhou suggested there was a recent new crackdown on
Falun Gong adherents in China. No such evidence was before the PRRA
Officer, but Justice
Shore
made mention of it in his stay decision.
[24]
The
PRRA Officer made no error in not considering this evidence or cannot be
faulted for not discovering it. It was the applicant’s onus to adduce that
evidence (Yousef v. Canada (MCI), 296 F.T.R. 182). The PRRA Officer
has no obligation to gather and seek additional evidence or make further
inquiries (Selliah v. Canada (MCI), 2004 FC 872).
[25]
The
applicant is not without recourse. (See Lupsa v. Canada (MCI), 2010 FC 113.
[26]
For
these reasons, this judicial review application is dismissed.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this judicial review
application is dismissed. No question of general importance was proposed for
certification.
“François
Lemieux”
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