Date: 20100527
Docket: IMM-5320-09
Citation:
2010 FC 580
Ottawa, Ontario, May 27, 2010
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
BAOJU XIE, HUIJIUAN JIANG
AND XIE MOY LY JIANG
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is an
application for judicial review of the decision of immigration officer S.
Neufeld, dated September 9, 2009, wherein the Applicant’s application for
permanent residence on Humanitarian and Compassionate grounds (“H&C”)
pursuant to section 25(1) of the Immigration and Refugee Protection Act,
R.S.C. 2001, c. 27 (“IRPA”) was rejected.
[2]
For the
reasons that follow, I have come to the conclusion that the officer did not
make any error that would justify the intervention of this Court. As a result,
I am of the opinion that this application for judicial review ought to be
dismissed.
I. The facts
[3]
The
Applicants, Baoju Xie and Huijiuan Jiang, are husband and wife and citizens of China. They first had a son, and then a
daughter, Xiaoyin, who was born in 1983. Because of China’s one child policy, they were fined as a
result of having that second child.
[4]
In order
to pay that fine, which was quite substantial, the principal Applicant Baoju
moved to Peru, where his parents were
residing. The rest of the family eventually followed him in 1986, because they
continued to face difficulties in China.
They claim that Xiaoyin was a non-status person with no rights or benefits, as
a result of her being a second child. In 1991, the principal Applicant and his
wife had a third child, Xie Moy Ly Jiang; as she was born in Peru, she is a citizen of that country.
[5]
Baoju Xie
and Huijiuan Jiang owned and operated a restaurant in Peru. They stated that they were subjected
to extortion and harassment. They also alleged that when they complained to
the police, they were told to go back to China. As a result, the Applicants Baoju and
Huijiuan closed down their business in 2004, and accompanied their eldest
daughter Xiaoyin to Canada where she had obtained a
student visa. Their son remained in Peru,
while their youngest daughter came with them to Canada.
[6]
One month
after their arrival in Canada, in April 2004, the three Applicants
claimed refugee status based on racial discrimination and harassment. On
August 1, 2006, the Immigration and Refugee Board (the “IRB” or the “Board”)
refused their application. The Board excluded the Applicants Baoju and Huijiuan
from claiming refugee protection pursuant to Article 1E of the Convention
because of their status as permanent residents of Peru at that time. In response to the
concern that the Applicants might have lost their permanent resident status in
Peru as a result of leaving that country, the Board held, based on the
documentary evidence, that while residency obligations in Peru must be
fulfilled to maintain residency status and while such status may be lost as a
result of a lapse, an individual could re-apply to the competent authorities to
reinstate his or her status as a permanent resident.
[7]
Moreover,
the Board found that the documentary evidence failed to show that Chinese
nationals living in Peru faced persecution, torture or
cruel or unusual treatment or punishment because of their race. It was the Board’s
conclusion that the Applicants’ allegations of repeated victimization was, on a
balance of probability, a product of their status as
business owners, and as such, could be remedied by a change in occupation.
[8]
The
Board also found that there was no persuasive evidence that the principal Applicant’s
daughter, Xie Moy Ly Jiang, who is a citizen of Peru, faced a well-founded fear
of persecution in Peru, or that she was a person in need of
protection. It was the tribunal’s conclusion that the Applicants’ allegation, that
she would be targeted in the future by criminals because of her race, was
speculative and not grounded in facts or in any of the documentary evidence.
[9]
In
May and June 2007 respectively, the Applicants submitted their H&C
applications (which included their eldest daughter Xiaoyin) and their
Pre-Removal Risk Assessment (PRRA) to Citizenship and Immigration Canada (CIC).
Both applications were rejected in September 2009.
[10]
The
Applicants Baoju and Huijiuan were removed to China on December 5,
2009, while their daughter Xie Moy Ly was removed to Peru on December
7, 2009.
II. The impugned decision
[11]
The
immigration officer first set out the criteria for an exemption on H&C
grounds: an applicant has the onus to satisfy the decision-maker that his
personal circumstances are such that the hardship of not being granted the
requested exemption would be unusual and undeserved, or disproportionate. The
officer then addressed the different factors raised by the Applicants.
[12]
First, the
officer reviewed the family’s history and status in China and Peru, and considered the possible hardship
faced by the Applicants in returning either to China or to Peru. With respect to Peru, the immigration officer explained that
the Applicants provided insufficient information to indicate whether Mr. Baoju
and Ms. Huijiuan could regain their permanent resident status, which has
probably lapsed because of their lengthy absence. The officer also stated that
it is not clear whether the principal Applicant’s eldest son and parents are
still living in Peru as was the case at the time
of their refugee claim. He then relied on the 2008 U.S. Department of State
Country Report on Human Rights Practices in Peru, introduced by the Applicants, to
conclude there are no reported societal abuses or discrimination, and that the
laws of Peru provide for many human
rights. On that basis, he found that the Applicants did not establish that
they would face hardship in Peru as a result of
discrimination. Furthermore, the immigration officer found that, although the
criminality rate is high in Peru, adequate police protection
will be available for the Applicants.
[13]
With
respect to the Applicants’ fear of returning to China as a result of the one-child policy, the
immigration officer concluded that the fear had no basis. In fact, the officer
explained that the eldest daughter, whose birth was the reason for the
Applicants’ departure from China, is now over 26 years old and has already
benefited from an education in both Peru
and Canada. Moreover, both daughters
are now adults and no evidence supports the claim that they will continue to
face hardship in China due to family planning
policy.
[14]
The
immigration officer also outlined that the youngest daughter is a Peruvian
citizen. He recognized, based on a document entitled Citizenship Laws of the
World, that a child cannot obtain Chinese citizenship by descent if the child
has acquired the citizenship of the parent’s new country. Nevertheless, he
concluded that the youngest daughter may seek Chinese citizenship by
naturalization with the support of close relatives she has in China. On that basis, he determined that the
Applicants would face no hardship in China.
[15]
As for
establishment in Canada, the immigration officer
accepted that the Applicants have presented evidence to indicate a measure of
establishment. He acknowledged a head injury suffered by Ms. Huijiuan, but
explained that he had insufficient information as to whether her recovery or
potential litigation would require her to return to or stay in Canada. After reviewing the
Applicants’ employment and educational histories, the officer concluded that
the evidence does not demonstrate a sufficient degree of establishment in Canada to cause an unusual,
undeserved or disproportionate hardship if the Applicants were to be removed.
[16]
Turning to
the best interests of the children, the officer stated that there is
insufficient information to support the view that either of the two daughters
would face hardship upon their return to Peru or China. Furthermore, the eldest daughter has
submitted an application for permanent residence in Canada as a skilled worker in which she
indicated a measure of independence from her family as an adult.
[17]
Finally,
the immigration officer found that there is no indication that the Applicants
would face difficulties trying to reintegrate into Peruvian or Chinese
society. They have been independent and self-sufficient in the past and they
have family who could assist them with their reintegration in Peru or China. As a result, he concluded that the
assessed factors do not demonstrate that the Applicants’ personal circumstances
justify an exemption for reasons of unusual and undeserved or disproportionate
hardship if they are to be returned to their country of nationality.
III. The issues
[18]
This
application for judicial review raises essentially four issues:
a.
What is
the appropriate standard of review?
b.
Did the
immigration officer apply the wrong legal test for the purposes of an H&C?
c.
Did the
immigration officer breach his duty of procedural fairness by relying on
extrinsic evidence?
d.
Did the
immigration officer err in his assessment of the evidence?
IV. The analysis
A. The Appropriate Standard of Review
[19]
The
determination by an officer of the appropriate legal test for an H&C
application and its distinction from the PRRA threshold is a legal issue
reviewable according to the correctness standard: Selvarasa v. Canada (Minister of Citizenship and
Immigration),
2008 FC 1125, [2008] F.C.J. No. 1396 at para. 15; Thalang v. Canada (Minister of Citizenship and
Immigration),
2008 FC 340, at para. 6.
[20]
When it
comes to the assessment of the evidence, considerable deference should be
accorded to H&C officers. Given the discretionary nature of an H&C
decision and its factual intensity, the deferential standard of reasonableness
applies: Selvarasa at para. 15; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] S.C.J.
No. 9, at para. 53. Review on the reasonableness standard requires the Court
to inquire into the qualities that make a decision reasonable, which include
both the process and the outcome. Reasonableness is concerned principally with
the existence of justification, transparency, and intelligibility in the
decision-making process. It is also concerned with whether the decision falls
within the range of acceptable outcomes that are defensible in fact and in law:
Dunsmui at para. 47.
[21]
Finally,
as for the issue of breach of procedural fairness, it is well established that
the applicable standard of review is that of correctness: Canadian Union of
Public Employees (C.U.P.E.) v. Ontario (Minister of Labour)), 2003 SCC 29, [2003]
S.C.J. No. 28 at para.100; Sketchley v. Canada (Attorney
General),
2005 FCA 404, [2005] F.C.J. No. 2056 at para.54.
B. The Legal Test for an H&C
[22]
Counsel
for the Applicants submitted that the immigration officer erroneously applied
the PRRA test to the H&C application. To support this argument, the
Applicants identified a passage in the H&C decision dealing with the
situation in Peru that is identical to the equivalent
passage in the PRRA decision, the only difference being the use of the word
“hardship” in the H&C decision as opposed to the word “risk” in the PRRA
decision. Moreover, the Applicants contended that the immigration officer
rejected their hardship arguments vis-à-vis Peru primarily on the basis of a
finding of adequate police protection, which is relevant to a PRRA decision but
not to an H&C evaluation.
[23]
It is well
established that it is a reviewable error of law for an immigration officer to
consider an H&C application against PRRA standards:
A risk assessment in an H&C
application must be assessed according to the standard of whether the risk
factors amount to unusual, undeserved or disproportionate hardship and not
according to the higher standard in a Pre-Removal Risk Assessment.
Gallardo v. Canada (Minister of Citizenship and
Immigration),
2007 FC 554, [2007] F.C.J. No. 749 at para. 12.
[24]
However,
this does not mean that no risk assessment should be undertaken in the course
of an H&C determination. On the contrary, it is possible that certain risk
factors which do not meet the higher threshold of a PRRA may nevertheless be
relevant in assessing hardship in the context of an H&C application:
There may well be risk considerations
which are relevant to an application for permanent residence from within Canada which fall well below the
higher threshold of risk to life or cruel and unusual punishment.
Pinter v. Canada (Minister of Citizenship and
Immigration),
2005 FC 296, at para. 5.
[25]
When
looking at the decision as a whole, I am unable to find that the officer erred
with respect to the legal test to be applied. He started his decision by quoting
from CIC IP5 Manual (Immigrants Applications in Canada made on Humanitarian or Compassionate
Grounds) the definitions of “unusual and undeserved” or “disproportionate”
hardship. He then went through the different factors to be considered in such
an application, such as hardship or sanctions upon return to Peru or China, degree of establishment in Canada, best interest of the
children, spousal, family or personal relationships that would create hardship
if severed, etc.. Indeed, the officer addressed all of the Applicants’
concerns, as he had to. Risk upon return to Peru was very much part of the
Applicants’ submissions, and
the officer was not only justified but required to look at this factor and to
go beyond it to assess hardship. As he stated:
I have considered the
applicants’ H&C and PRRA applications and submissions in this decision as
risk has been cited. However, I recognize that the threshold is one of
hardship for an H&C application and not section 96 or 97 of the Immigration
and Refugee Protection Act (IRPA). This H&C has been assessed on the
basis of unusual and undeserved, or disproportionate hardship.
H&C decision, Certified
Tribunal Record, p. 8.
[26]
A careful
reading of the officer’s decision reveals that he was clearly aware of the test
and that he applied it throughout his decision. He dealt with risk because it
was raised by the Applicants, and he assessed it through the lens of hardship.
He also considered the issue of discrimination, which is clearly more relevant
to an H&C than to a PRRA. Considered as a whole, I am satisfied that he
made no mistake and applied the correct test under section 25 of IRPA.
C. Procedural Fairness
[27]
The
Applicants submitted that the officer breached procedural fairness by relying
on extrinsic documentary evidence without giving them an opportunity to
respond. The documents at issue are the 2008 U.S. Department of State Report
dated February 25, 2009, an IRB document dated March 6, 2008 discussing crime
rates in Peru, and a U.S. government report entitled “Citizenship Laws of the
World”, which is part of a non-commercial collection of information.
[28]
Firstly,
the U.S. Department of State Report was provided to the officer by the
Applicants themselves. Moreover, both that document and the IRB research
document (which is part of the IRB national documentation package) are publicly
available documents that can be accessed online.
[29]
The Court
of Appeal has held that an immigration officer may rely on publicly available
documents in making his or her decision. Fairness does not require an
immigration officer to disclose documents of this nature in advance of determining
the matter. These documents should only be disclosed where they are novel and
where they show changes in the general country conditions that may affect the
decision: see Mancia v. Canada (Minister of Citizenship and
Immigration),
[1998] 3 F.C. 461 (C.A.), at paras.
26-27.
[30]
Evidence
that is part of the IRB documentation package on country conditions has been
held to satisfy this condition: Guzman v. Canada (Minister of Citizenship and
Immigration),
2004 FC 838, [2004] F.C.J. No. 1033 at paras. 2-5. Similarly, the “Citizenship
Laws of the World” document is a report prepared by a reliable governmental
entity on country conditions. As such, I believe that it fulfills the
conditions set out in Mancia: see, by way of analogy, Sinnasamy v.
Canada (Minister of Citizenship and
Immigration),
2008 FC 67, [2008] F.C.J. No. 77 at paras. 36-39.
[31]
In any
event, even if the immigration officer made an error by not disclosing this
last document to the Applicants prior to making his decision, it would be
futile to send the matter back for redetermination. The outcome of the H&C
application would have remained the same even if the document had been
disclosed to the Applicants by the officer. Xie Moy Ly Jiang could still
return to Peru, her country of citizenship, even if she does not have legal
status in China.
D. The Officer’s
Overall Assessment of the Evidence
[32]
The
Applicants submitted that the immigration officer’s decision is unreasonable
for many different reasons. First, the Applicants submitted that the impugned
decision is reviewable because the immigration officer did not deal with
evidence that goes to the issues raised by the Applicants, and because the
officer found that the Applicants had not provided evidence with respect to
certain elements when in fact they had. More specifically, the Applicants
contended that the officer ignored relevant evidence about another case where a
child was born in New
Zealand to
Chinese parents. The child’s application for H&C was rejected by the
Respondent, but the Court granted the judicial review because dual citizenship
is not possible in China and because the child had no
status in China. According to the
Applicants, this case was very relevant to Xie Moy’s situation, and the
officer’s silence would indicate that he gave no consideration to that case.
[33]
It is well
recognized that administrative tribunals do not have to refer to every piece of
evidence that is contrary to their findings, and to explain how they dealt with
it. However, they have the obligation to address evidence that is very
relevant to the applicants’ claim or that appears to contradict the agency’s
findings of fact: Cepeda-Gutierrez v. Canada (Minister of Citizenship and
Immigration) (1998),
157 F.T.R. 35, at paras. 16-17 (F.C.A.).
[34]
In the
decision referred to by the Applicants (Joe (Litigation guardian of) v. Canada (Minister of Citizenship and
Immigration),
2009 FC 116), [2009] F.C.J. No. 176, the application for judicial review of the
H&C decision was granted on two grounds. First, the Court found that the
applicant did not have legal status in China, and that as a consequence the
officer erred in using China as the country of reference
for his decision as opposed to New
Zealand, as
previously determined by the RPD and the PRRA decisions. Second, the Court
determined that the officer disregarded the best interest of the minor
applicant.
[35]
In the
case at bar, the officer’s findings do not squarely contradict the Joe
decision. The officer indirectly admitted that Xie Moy does not presently have
status in China, because she was born in Peru. He simply suggested she could become a
citizen by naturalization. If he assessed the hardship she would face in
returning to China, it was merely out of an
abundance of caution. With respect to the best interest of a child, the
situation is also different from the one in Joe. In that case, the
Court not only found that the officer erred by assessing hardship in a country
where the minor child had no status, but also noted that the child had not
lived in her country of citizenship since she was a baby, that she had no
remaining relatives there, and that she had a naturalized Canadian grandmother
taking care of her in Canada. Xie Moy Ly’s situation is much different. She
has no relatives in Canada who have permanent status,
whereas her grandparents and her older brother appear to live in Peru; there is
no evidence that these relatives are no longer living in Peru. Moreover, Xie Moy Ly was born and
lived in Peru all her life before coming to
Canada.
[36]
Finally,
the decision in Joe is not what is commonly referred to as evidence. It
is a jurisprudential precedent where the Court made findings of fact and law
based on the evidence before it. Even if it was established in that case that
dual citizenship is not permitted in China and that a child born to Chinese
parents outside of China has no status in that country, that does not mean that
applicants can introduce the Joe decision in their applications instead
of bringing their own evidence about their specific situations and their
country conditions at the relevant time.
[37]
The
Applicants also alleged that the officer selectively used the documentary
evidence, by taking information out of context and by ignoring contradictory
evidence. The Applicants explained that the officer cited out of context the
2008 U.S. Department of State Country Report on Human Rights Practices, Peru, dated February 25, 2009 (the “Report”)
by stating that “there were no reports of societal abuses, or discrimination”.
It is true that this exact same wording exists in the Report in the section
dealing with freedom of religion and anti-Semitic acts. However, there is no
indication that the officer quoted this passage verbatim from the Report.
Despite a general statement that although the law prohibits discrimination,
discrimination persisted, found under the heading “Discrimination, Societal Abuses,
and Trafficking in Persons”, the Report notes that the only incidents of
discrimination against national, racial or ethnic minorities pertain to Afro-Peruvians
and indigenous people. There is no report of discrimination or societal abuses
against people of Chinese ethnicity or of Asian descent. In this light, I do
not believe the officer selectively used the Report.
[38]
The Applicants
also submitted that the officer ignored the evidence in the Report about the
lack of training and the corruption of police forces in Peru. A careful reading of the officer’s
reasons shows that he addressed similar evidence contradicting his finding of
adequate police protection. The relevant paragraph of his reasons in this
respect reads as follows:
In an Immigration and Refugee Board of
Canada (IRB) research document dated 06 March 2008, it was noted that Peru has
one of the highest reported crime rates in Latin America. In contrast, in this same document,
Freedom House was quoted to indicate that the incidence of crime is low in Peru. The Peruvian National Police is an
amalgamation of three former enforcement agencies and is credited with several,
recent, major, achievements in countering crime. Absent evidence to the
contrary, I am satisfied that there is adequate police protection for the
applicants in Peru.
Certified Tribunal Record, p. 9
[39]
It is
worth noting that the officer did not rely on the Report dated February 25,
2009 by the
U.S.
Department of State, but on another document not produced by the Applicants.
The officer’s reasons indicate, in my view, that he had contradictory evidence
in front of him on that matter. He chose to rely on certain pieces of information
more than on others and explained his choice. In doing so, he exercised his
discretion in weighing the evidence, which is at the core of his jurisdiction.
There is no reason to justify the intervention of this Court in this regard.
[39] The Applicants’ third argument is that the officer
failed to take into account the best interests of the child, Xie Moy, if her
parents were subjected to removal. Having stated that Xie Moy cannot acquire
Chinese citizenship, the officer nevertheless continued to assume that she
would somehow become a citizen of China simply because she would have close
relatives living there, thereby side-stepping the issue of hardship Xie Moy
would face as a non-status person in China.
Alternatively, the officer’s decision effectively forced Xie Moy to return to Peru by herself and to be separated from her
parents indefinitely. The officer did not see any hardship in this separation
simply because Xie Moy had crossed the 18-year-old threshold into adulthood.
[40] In light of the evidence before him, the officer’s
finding that Xie Moy would not face hardship upon return to Peru was reasonable. As already mentioned,
Xie Moy is 18 years of age, she has Peruvian citizenship, and based on the
information in the Applicants’ PRRA application, she has a brother and living
grandparents in Peru. Alternatively, there is no
evidence she could not acquire Chinese citizenship, or that she would still
bear the consequences of the one-child policy of that country even after having
reached the age of majority. The assessment of these factors reasonably led
the officer to conclude that Xie Moy would not suffer unusual, undeserved or
disproportionate hardship if returned to Peru. The Applicants’ arguments would amount
to reweighing the evidence.
[41] It must be kept in mind that an H&C exemption
from applying for permanent residence from abroad is a discretionary decision: Gautam
v. Canada (Minister of Citizenship and
Immigration) (1999),
167 F.T.R. 124, at para. 10. There
is no doubt that the removal of the Applicants causes them hardship. But this
is not the test. Although unfortunate, their situation does not amount to
unusual or undeserved as contemplated by the IRPA. As stated by Justice
Pelletier in Irimie v. Canada (Minister of Citizenship and
Immigration) (2000),
10 Imm. L.R. (3d) 206:
[12] If one then turns to the comments
about unusual or undeserved which appear in the Manual, one concludes that
unusual and undeserved is in relation to others who are being asked to leave Canada. It would seem to follow
that the hardship which would trigger the exercise of discretion on
humanitarian and compassionate grounds should be something other than that
which is inherent in being asked to leave after one has been in place for a
period of time. Thus, the fact that one would be leaving behind friends,
perhaps family, employment or a residence would not necessarily be enough to
justify the exercise of discretion.
See also: Pashulya v. Canada (Minister of Citizenship and
Immigration),
2004 FC 1275, at para. 43.
[42] For all of the foregoing
reasons, I am of the view that this application for judicial review must be
dismissed. No question is certified.
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