Date:
20121219
Docket:
IMM-1711-12
Citation:
2012 FC 1512
Ottawa, Ontario,
December 19, 2012
PRESENT: The
Honourable Mr. Justice O'Keefe
BETWEEN:
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JINGSHU JIANG, XIUQING JIANG,
YUHAO RAYMOND JIANG AND TONY YUFENG JIANG
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Applicants
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a
decision by a Citizenship and Immigration Canada officer (the officer) dated
December 8, 2011 wherein the applicant’s permanent residence application was
refused. This conclusion was based on the officer’s finding that there were
insufficient humanitarian and compassionate (H&C) grounds to warrant an
exception allowing the applicant’s permanent residence application to be made
from within Canada.
[2]
The applicant requests that the officer’s
decision be set aside and the application be referred back to Citizenship and
Immigration Canada (CIC) for redetermination by a different officer.
Background
[3]
Jingshu
Jiang, the principal applicant, and his wife, Xiuqing Jiang, are citizens of China, while their sons are United States citizens. The principal applicant applied for asylum in
the U.S. in 1993 based on participation in the Chinese student democracy
movement. His claim was denied in 2002 and his appeal was refused in 2009.
[4]
In
July 2001, the principal applicant married his wife who had fled China to the U.S. due to fear of persecution because of inhumane family planning policy in China. The principal applicant’s sons were born in the U.S. while their asylum appeal was
pending.
[5]
The
principal applicant’s wife began practicing Falun Gong in March 2008 as
treatment for insomnia and headaches. She began to contact her former
schoolmates in China to share her experience, including pamphlets and Epoch
Times clippings.
[6]
When
the principal applicant’s U.S. appeal was refused in May 2009, his wife
received a phone call from her father telling her that the Public Security
Bureau (PSB) went to their home, had discovered the pamphlets and asked that
she return to China and turn herself in. Her classmates had already been
arrested.
[7]
The
principal applicant and his family came to Canada on August 22, 2009 and made a
claim for refugee protection. This claim was refused on December 24, 2010 and
leave for judicial review was denied by this Court on April 13, 2011.
[8]
In
May 2011, the applicants filed a pre-removal risk assessment (PRRA) application
and in July 2011 they filed an H&C application. These applications were
refused on December 8, 2011 and December 12, 2011 respectively, by the same
officer.
Officer’s H&C Decision
[9]
In
a letter dated December 8, 2011, the officer informed the applicants of the
negative decision. Reasons for the decision were also provided.
[10]
The
officer began by summarizing the applicant family’s biographical information
and immigration history. The officer identified the issues as adverse country
conditions, establishment and the best interests of the children.
[11]
The
officer noted that as the H&C application had been submitted after June 29,
2010, risk factors relating to sections 96 and 97 of the Act could not be
considered in this type of application.
[12]
The
officer summarized the applicants’ allegations and noted that the Refugee
Protection Division (RPD) had found that the principal applicant’s wife had not
been identified as a practitioner by the PSB, was not a genuine Falun Gong
practitioner and that she came to Canada on a fraudulent basis. The RPD had
also found the applicant’s testimony was not credible in relation to his wife’s
practice of Falun Gong. On the applicants’ claim of persecution by the Chinese
government due to violating the one child policy, the RPD found that the
children would be registered in the family hukou after the payment of a fine.
[13]
The
officer reviewed country conditions evidence relating to China’s persecution of Falun Gong practitioners, noting that they continue to face arrest, detention
and imprisonment. Although practicing Falun Gong in the privacy of one’s home
is possible, it could become dangerous if the authorities became aware of it.
The treatment of practitioners varied across provinces, being more relaxed in
the south.
[14]
The
officer then turned to country conditions evidence relating to family planning
policies, describing the history of the one child policy and the monetary
penalty for extra births. The officer cited a response to information request (the
RIR) stating that forced abortion and sterilization are banned by Chinese law,
but that some local officials have resorted to coercion. It was also indicated
that Chinese nationals who have children abroad may not be subject to the one child
policy.
[15]
The
officer found that the evidence did not support the applicants’ assertion that
the hardship of returning to China would constitute unusual and undeserved or
disproportionate hardship.
[16]
The
officer next considered the establishment of the principal applicant’s family.
The principal applicant was unemployed for a year and half after arrival in Canada, but had worked at a sushi restaurant as confirmed by an employer letter. The principal
applicant did not indicate if his wife was employed. The officer reviewed other
documentary evidence relating to education and community involvement. The
officer placed positive consideration on the principal applicant’s employment
in Canada, but noted that it did not commence until after the negative RPD decision.
[17]
The
officer noted the principal applicant’s family has a good civil record, but did
not provide copies of bank statements or tax statements.
[18]
The
officer found that while leaving Canada after two years may be difficult, the
level of integration achieved by the principal applicant’s family did not make
their hardship upon removal unusual and undeserved or disproportionate.
[19]
In
considering the best interests of the children, the officer found that they
were dual U.S. and Chinese citizens. The officer held that the evidence did not
support a legal obstacle to the children residing in China. There was little
evidence their basic amenities would not be provided for. It was reasonable to
expect the children to have been exposed to the Chinese culture and Mandarin
language by their parents in North America. The officer concluded that the
general consequences of relocating would not have a significant negative impact
on the children.
[20]
The
officer found that the applicant’s family had demonstrated their ability to
adapt to new environments and could be expected to adjust to their return to
life in Canada. Their skills acquired in North America were transferable and
their extended family members lived in China.
[21]
In
conclusion, the officer acknowledged that the applicants would face hardship,
but it did not rise to the level of unusual and undeserved or disproportionate
hardship. Therefore, the application was refused.
Issues
[22]
The
applicants submit the following points at issue:
1. Whether the
officer breached the duty of fairness by failing to make any reference to the
applicants’ written submissions and documentary evidence?
2. Whether the
officer breached the duty of fairness by basing his decision on a selective
review of the country conditions evidence?
3. Whether the
officer erred in failing to provide any reasons for his finding of no unusual
and undeserved or disproportionate hardship, particularly when the officer
referred to conflicting findings?
4. Whether the
officer erred in failing to adequately assess the best interests of the
children?
5. Whether the
officer erred in failing to properly assess the establishment of the applicants’
family?
[23]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the officer
violate procedural fairness?
3. Did the officer
err in denying the application?
Applicants’ Written Submissions
[24]
The
applicants submit the appropriate standard of review for an H&C decision is
reasonableness, but that procedural fairness should be reviewed on a standard
of correctness.
[25]
The
applicants argue the IP 5 H&C Manual requires an officer to consider and
weigh all relevant evidence and look at the whole picture. The manual also
refers to the right to be heard as a fundamental component of natural justice.
[26]
The
officer failed to consider the written submissions and supporting document evidence
provided by the applicants’ counsel. There was no consideration of counsel’s
submission that the conclusion on Chinese citizens working abroad in the RIR referred
to citizens working at Chinese embassies and did not include failed refugee
claimants. This submission was corroborated by correspondence with the author
of the report. The officer’s failure to consider this evidence violated
procedural fairness and constituted bias.
[27]
In
his country conditions analysis, the officer only selected information
unfavourable to the applicants. The U.S. Department of State Report described a
coercive birth control regime, sometimes including forced abortion or
sterilization and the detention of Falun Gong adherents. The fee for each
unapproved child can reach ten times a person’s annual disposable income.
Unregistered children cannot access public services. The officer ignored these
findings and therefore breached the principles of fairness and justice.
[28]
The
officer failed to provide reasons for his finding of no unusual and undeserved
or disproportionate hardship. The applicants are entitled to know why they
failed to convince the officer of their case. The officer cited adverse country
conditions and then dismissed them without any explanation or analysis. The
paragraphs excerpted dealing with the risk of sterilization and the detention
of Falun Gong practitioners conflicted with the officer’s finding of a lack of
evidence.
[29]
The
officer failed to consider the best interests of the children by not
considering the hardships of failing to be recorded in the household registry,
including discrimination, lack of health care and risk of kidnapping. The
officer’s analysis of the best interests of the children was superficial. The
officer’s conclusion that there was no legal obstacle to the children receiving
Chinese citizenship was based in part on the DOS Report that only referred to Hong Kong.
[30]
The
officer’s conclusion on establishment contained no analysis. The applicant
family is financially self supportive and regularly attend church and ESL
classes. It can therefore not be said that their establishment is no different
than that of other refugee claimants.
Respondent’s Written Submissions
[31]
The
respondent argues the applicants’ argument to Chinese refugee claimants abroad
not being exempt from the one child policy is an assertion without evidence and
that the RIR relied upon by the officer made no such distinction. The officer
reasonably determined that the evidence did not support a finding of hardship
upon return.
[32]
It
was open to the officer to conclude the evidence did not indicate hardship
based on the persecution of Falun Gong as the RPD had found the principal applicant’s
wife was not a genuine practitioner.
[33]
The
officer specifically listed the sources he consulted, including the applicants’
submissions. The applicants’ argument with respect to country conditions
amounts to a disagreement on the weighing of evidence. This Court should
consider the substance of contrary evidence, not the particularities of any
specific article. The officer properly considered all the evidence.
[34]
The
officer was alert, alive and sensitive to the best interests of the children.
His decision was reasonably made based on the evidence. The applicants merely
asserted that the children could not be recorded in the hukou, but the officer
had already noted that Chinese nationals with children born abroad are not
subject to the one child policy and can return to China with more than one
child without serious problem.
[35]
The
officer properly considered establishment and the applicants are simply asking
this Court to reweigh the evidence.
Analysis and Decision
[36]
Issue
1
What is the appropriate
standard of review?
Where previous jurisprudence
has determined the standard of review applicable to a particular issue before
the court, the reviewing court may adopt that standard (see Dunsmuir v New Brunswick, 2008 SCC 9 at paragraph 57, [2008] 1 S.C.R. 190).
[37]
It
is well established that assessments of an officer’s
decision on H&C applications for permanent residence from within Canada are
reviewable on a standard of reasonableness (see Kisana v Canada (Minister of
Citizenship and Immigration), 2009 FCA 189 at paragraph 18, [2009] FCJ No
713; Adams v Canada (Minister of Citizenship and Immigration), 2009 FC
1193 at paragraph 14, [2009] FCJ No 1489; and De Leiva v Canada (Minister of
Citizenship and Immigration), 2010 FC 717 at paragraph 13, [2010] FCJ No
868).
[38]
In
reviewing the officer’s decision on the standard of reasonableness, the Court
should not intervene unless the officer came to a conclusion that is not
transparent, justifiable and intelligible and within the range of acceptable
outcomes based on the evidence before it (see Dunsmuir above, at
paragraph 47 and Canada (Citizenship and Immigration) v Khosa,
2009 SCC 12 at paragraph 59, [2009] 1 S.C.R. 339). As the Supreme Court held
in Khosa above, it is not up to a reviewing court to substitute its own
view of a preferable outcome, nor is it the function of the reviewing court to
reweigh the evidence (at paragraph 59).
[39]
It
is also trite law that the appropriate standard of review for issues of
procedural fairness is correctness (see Khosa above, at paragraph 43). No
deference is owed to decision makers on these issues (see Dunsmuir
above, at paragraph 50).
[40]
Issue
2
Did the
officer violate procedural fairness?
The applicants argue the officer
violated procedural fairness by failing to consider or make reference to particular
evidence. As explained in Khosa above, at paragraphs 45 and 46, the Federal
Courts Act, RSC 1985, c F-7, indicates that a reasonableness standard of
review is appropriate when reviewing fact finding:
45
Judicial intervention is further authorized where a
federal board, commission or other tribunal
(d)
based its decision or order on an erroneous finding of fact that it made in a
perverse or capricious manner or without regard for the material before it;
.
. .
46
More generally, it is clear from s. 18.1(4)(d) that
Parliament intended administrative fact finding to command a high degree of
deference. This is quite consistent with Dunsmuir. It provides
legislative precision to the reasonableness standard of review of factual
issues in cases falling under the Federal Courts Act.
[41]
The
subsection excerpted in the above paragraph specifically mentions “without
regard for the material before it” as a ground of review, which is the ground
alleged by the applicants here. However, this passage makes clear it should be
reviewed on a reasonableness standard and is therefore not a matter of
procedural fairness. I instead will consider this argument under the general
reasonableness review discussed below.
[42]
Issue 3
Did the officer
err in denying the application?
The officer is presumed to
have considered all of the evidence before him (see Oprysk v Canada (Minister of Citizenship and Immigration), 2008 FC 326 at paragraph 33, [2008]
FCJ No 411). However, the more important the evidence that is not mentioned,
the more willing a court may be to infer from silence that the tribunal made a
finding of fact without regard to the evidence (see Pinto Ponce v Canada (Minister of Citizenship and Immigration), 2012 FC 181 at paragraph 35, [2012]
FCJ No 189).
[43]
The
officer properly considered the country conditions evidence on Falun Gong
practitioners, but relied on the officer’s negative credibility finding that
the principal applicant’s wife was not a practitioner. Therefore, the evidence
pointed to by the applicants is not significant enough to warrant further
mention from the officer.
[44]
I
also do not believe it is an error for an officer to explicitly consider
evidence that contradicts his ultimate conclusion as the applicants argue. A
decision which considers evidence on both sides is harmonious with the value of
transparency.
[45]
The
applicants argue that the officer failed to consider the applicants’ argument
that the exemption of Chinese citizens working abroad from the one child policy
referred only to those working in embassies. The respondent argues the
applicants provided no evidence on this point and therefore it need not have
been explicitly considered by the officer.
[46]
The
respondent is correct that the evidence offered by the applicants on this point
is not overwhelming. The applicants made the claim in submissions regarding
Chinese embassy staff without reference to any country conditions evidence.
[47]
The
applicants did, however, submit correspondence with the political science
professor relied upon in the RIR on this point. The professor stated he did not
recall making any conclusive recommendations regarding how the children of
failed refugee claimants would be treated upon their arrival in China.
[48]
This
correspondence does not perfectly buttress the applicants’ claim that the one child
exemption only applies to embassy staff. It does, however, raise some doubt as
to whether the waiver of the one child policy, as described in the RIR, applied
universally to those born overseas or varied depending on circumstances.
[49]
This
is a significant issue in assessing the applicants’ case and for the officer to
be silent on it is an omission that rises to the level described in Pinto
Ponce above. It is particularly relevant since the officer’s finding was
only that children born abroad “may” not be subject to the one child policy.
[50]
This
piece of evidence does not dictate a particular outcome and it is not this Court’s
role to reweigh evidence. However, the officer’s failure to explain why this
evidence was rejected conflicts with the Dunsmuir above, value of
transparency. It is therefore unreasonable.
[51]
I
would therefore grant the application and return the matter for redetermination
by a different officer.
[52]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
set aside and the matter is referred to a different officer for
redetermination.
“John A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
Immigration
and Refugee Protection Act,
SC 2001, c 27
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72. (1) Judicial
review by the Federal Court with respect to any matter — a decision,
determination or order made, a measure taken or a question raised — under
this Act is commenced by making an application for leave to the Court.
96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is
outside each of their countries of nationality and is unable or, by reason of
that fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not
having a country of nationality, is outside the country of their former habitual
residence and is unable or, by reason of that fear, unwilling to return to
that country.
97. (1) A
person in need of protection is a person in Canada whose removal to their
country or countries of nationality or, if they do not have a country of nationality,
their country of former habitual residence, would subject them personally
(a) to
a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to
a risk to their life or to a risk of cruel and unusual treatment or
punishment if
(i) the
person is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the
risk would be faced by the person in every part of that country and is not
faced generally by other individuals in or from that country,
(iii) the
risk is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the
risk is not caused by the inability of that country to provide adequate
health or medical care.
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72. (1) Le
contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
96. A
qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a) soit
se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait
de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit,
si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle
avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut
y retourner.
97. (1) A
qualité de personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
a) soit
au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b) soit
à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i) elle
ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle
y est exposée en tout lieu de ce pays alors que d’autres personnes originaires
de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la
menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv) la
menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
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