Date:
20120524
Docket:
IMM -7489-11
Citation:
2012 FC 638
Ottawa, Ontario,
May 24, 2012
PRESENT: The
Honourable Mr. Justice Rennie
BETWEEN:
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ZIXIANG ZHOU, QUIAN YI FENG
WEN FENG ZHOU (minor),
CHU LIN ZHOU (minor),
by their Litigation Guardian
ZIXIANG ZHOU
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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]
The
applicants seek judicial review of a decision of Senior Immigration Officer J.
Luneau (Officer), dated August 22, 2011, refusing the applicants’ application
for permanent residence on humanitarian and compassionate (H&C) grounds
pursuant to section 25 of Immigration and Refugee Protection Act, SC 2001, c
27
(IRPA). For the reasons
that follow, the application is dismissed.
Facts
[2]
The
applicants are a family from China: Zixiang Zhou (principal applicant); his
wife, Qian Yi Feng (female applicant); their daughter, Chu Lin Zhou; and their
son, Wen Feng Zhou. The applicants left China and came to Canada in 2003. They state that they fled because of fear of persecution based on the
principal applicant’s practice of Falun Gong and the family’s violation of the
one-child policy. The applicants made a claim for refugee protection which was
refused in 2005 primarily based on credibility concerns.
[3]
The
applicants submitted their H&C application in 2006 and submitted updated
forms and documents in December 2010. Their H&C application was based on
the following allegations of hardship:
1. The principal
applicant feared persecution because of his practice of Falun Gong;
2. The applicants
feared their son would not be able to lead a normal life because he was born
without a permit and was therefore not included in their Household Registration
(hukou);
3. Applying for
permanent residence from abroad would interfere with their establishment in Canada, including their employment and the children’s education.
[4]
By
decision dated August 22, 2011, the Officer refused the applicants’ H&C
applications. In the Notes to File, the Officer recounted the applicants’
allegations and submissions. The Officer noted that the allegations regarding
the principal applicant’s practice of Falun Gong had been considered and
rejected by the Refugee Protection Division (RPD).
[5]
The
Officer found there was insufficient evidence that the principal applicant
practiced Falun Gong, either in China or in Canada, or that he had been
persecuted for Falun Gong practice in China. The Officer noted that the
applicants submitted a letter stating that the female applicant had practiced
Christianity while in China, for which she had been persecuted, and that she
continued to practice while in Canada. The Officer noted that the female
applicant had not actually alleged any risk on this basis and that she had
never previously indicated that she was a practicing Christian. Because of
these contradictions and the absence of any other evidence to corroborate her
allegations, the Officer accorded very little probative value to the evidence
regarding the female applicant’s practice of Christianity.
[6]
The
Officer also found that the applicants had presented no evidence that they were
wanted by the authorities for compulsory sterilization because of the birth of
their son. The Officer noted that the RPD had rejected this allegation. Since
there was objective documentary evidence that the son could be included in the hukou
through payment of a fine, the Officer found it unlikely the son would face a
risk of discrimination.
[7]
Finally,
regarding the applicants’ establishment, the Officer found that they took the
risk of settling in Canada without status and the ties they developed since
arriving do not automatically constitute sufficient H&C grounds. The Officer
acknowledged that the applicants would have to make additional efforts to
readjust upon return, but found they would likely be able to find employment
and also noted that they will have family support upon return to China.
[8]
Regarding
the best interests of the child, the Officer stated:
In
light of the foregoing analysis, and considering that the children are able to
return with their parents to a country where there is a family network, they
know the language and there is an educational system, I find that interrupting
the schooling of the children in Canada is a significant factor but not a
decisive one. Thus, on that point, I am of the opinion that the best interests
of the children will not be compromised should they have to return to China.
[9]
The
application was therefore refused.
Standard of Review and Issue
[10]
The
issue raised by this application is whether the Officer’s decision was
reasonable: Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190.
Analysis
[11]
The
applicants submit that the Officer failed to be alert, alive, and sensitive to
the best interests of the children as required by section 25 of the IRPA:
Kolosovs v Canada (Minister of Citizenship and Immigration), 2008 FC 165
at paras 9-11. The applicants contend that the best interests of the children
must be well-identified, examined with a great deal of attention and given
substantial weight. The applicants argue that the Officer’s cursory remarks on
this point come nowhere close to meeting this burden.
[12]
I
agree with the respondent’s submission, however, that the Officer did consider
the two allegations related to the children’s best interests; that the son
would face discrimination because he was not registered, and that removal would
interfere with the children’s education, in which they were excelling here in Canada.
[13]
Regarding
the son’s registration, the Officer noted the RPD’s finding that the son could
be registered following payment of a fine and therefore there was insufficient
evidence he would face any discrimination. Regarding the children’s education,
the Officer acknowledged that interruption of schooling was a significant
factor, but found that this was mitigated by the fact that the children would
be returning with their parents to a country where they had family, spoke the
language and would receive an education. Thus, the Officer considered all the
relevant factors raised by the application and the applicants’ arguments amount
to a request to weigh those factors differently.
[14]
The
applicants also allege several errors of law.
[15]
First,
they argue that it was an error to characterize the H&C application as an
application for an exemption from the requirements of the IRPA. While
the applicants are correct that section 25 states that the Minister “may grant
the foreign national permanent resident status or an exemption from any
applicable criteria or obligations of this Act”, that does not mean that the
grant of permanent residence under section 25 is not an exemption from the
requirements of the IRPA. The availability of permanent residence on
H&C grounds is itself an exemption intended to provide exceptional relief
to an applicant that does not meet the requirements of any categories of
permanent residence under the IRPA. This argument fails.
[16]
The
applicants also submit that the Officer applied the incorrect test for
permanent residence on H&C grounds, repeatedly referring to risk and
persecution, rather than hardship. However, as the respondent submits, the
references to risk and persecution were in response to the allegations
presented by the applicants: the majority of their submissions related to the
alleged risks they faced because of religious practice or violation of the
one-child policy. Thus, the Officer’s use of those terms was in her
consideration of whether the applicants had proven these factual allegations. The
correct test, whether the applicants would face unusual and undeserved or
disproportionate hardship, was identified and applied in the decision.
[17]
I agree that the reasons provided in this case
come perilously close to being inadequate in demonstrating that the Officer was
“alert, alive and sensitive” to the interests of the children, as required by Baker
v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.
They evince, on first impression, the sense that the Officer treated the
obligation arising from Baker summarily. The reasons, however, must be
read in the context of the record and submissions before the Officer. They
were, and it is conceded by counsel (who I hasten to add was not counsel at the
time) superficial. There was not much for the Officer to consider.
[18]
It
is axiomatic that the applicant has the burden of adducing evidence and
argument in support of an H&C application: Owusu v Canada (Minister of Citizenship and Immigration), 2004 FCA 38, [2004] 2 FCR 635. This
does not change in respect of the interests of children. As Dawson J noted in Ahmad
v Canada (Citizenship and Immigration), 2008 FC 646:
The
applicants do not point to any factual error in the officer's analysis, but
instead argue that the analysis was too narrow. The applicants say that the
officer should have considered the discrimination the applicants' now
eight-year-old daughter would face in Pakistan.
In
my view, this submission is not consistent with the fact that it is the
applicants who had the burden of specifying that their application was based,
at least in part, upon the best interests of the children and the burden of
adducing proof of any claim on which their humanitarian and compassionate
application was based. It was incumbent upon the applicants to raise, and
support with evidence, any specific issue a family member would face that was
said to give rise not just to hardship, but to hardship which is unusual and
undeserved or disproportionate.
Because
the applicants failed to directly raise the best interests of the children as a
basis of their humanitarian and compassionate application, and because they
failed to raise any specific factors relating to the children, I find no error
in the officer's treatment of the best interests of the children.
[19]
Here,
the applicants advanced two specific factors relating to the best interests of
the children; the effect on their education and the fact that their second
child was in violation of the one-child policy and would be denied access to basic
institutions.
[20]
The
later point was considered by the RPD. The Officer noted that the RPD found
that, after some delay and the payment of a fine, a hukou would issue.
Insofar as the education was concerned, the Officer did not embark on a
comparison of the Chinese educational system or under which system the children
would be better off. It would be an error to do so, as that is not the test.
The Officer noted that the children spoke Cantonese, were very bright and would
have parental and extended family support.
[21]
In
Kisana
v Canada (Minister of Citizenship and Immigration), 2009 FCA 189,
[2010] 1 FCR 360, para 45, quoting Osuwu the Court of Appeal noted:
In
Owusu, above, this Court held that an H&C officer was not under a
positive obligation to make inquiries concerning the best interests of children
in circumstances where the issue was raised only in an “oblique, cursory and
obscure” way [ …].
[22]
The
Officer was thus not obliged to conduct an examination as to whether the
children would be better served by an education in China as opposed to an
education in Canada.
[23]
Thus,
while the outcome was not what the applicants would have preferred and perhaps
the Court would have reached a different conclusion, I find that the Officer
considered all the evidence and reached a reasonable and justified conclusion. There
is therefore no basis for the Court to intervene.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review be
and is hereby dismissed. No question for certification has been proposed and
none arises.
"Donald J.
Rennie"
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