Date: 20090203
Docket: IMM-2218-08
Citation: 2009 FC 116
Montréal, Quebec, February 3, 2009
PRESENT: The Honourable Maurice E. Lagacé
BETWEEN:
LISA JOE,
a minor, by her litigation guardian, Xue
Lan Huang
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
This
is an applicant for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of a decision of
an officer of Citizenship and Immigration Canada, dated April 22, 2008,
refusing the applicant’s application for permanent residence on humanitarian
and compassionate (H&C) grounds wherein the officer found that there were
insufficient H&C considerations to warrant exempting the applicant from the
requirement that she applies for permanent residence outside of Canada.
II. The Facts
[2]
The
applicant is a seventeen-year-old girl and citizen of New Zealand whose
parents are citizens and residents of China. Due to the one‑child
policy in China, the
applicant’s mother went to New Zealand in 1991 to visit her
mother and to give birth in April 1991 to the applicant, her fourth child. A
few months later, the applicant returned to China with her
mother on a visitor’s permit.
[3]
The
applicant’s parents were told that they had two unauthorized children in the
family due to the one-child policy and that they had to pay a fine of
130 000 yuan.
[4]
Between
1991 and 2000, the applicant lived in China on a visitor’s permit
renewed yearly. She attended school in China for one year only and, according
to a previous decision of the Refugee Protection Division (RPD)
of the Immigration and Refugee Board (IRB), she was
forbidden to continue her schooling in the absence of a valid status in China.
[5]
In
September 2000, the applicant was nine years old when she was given a one-time
only exit permit to leave China, a permit which expired on October 6,
2000.
[6]
Due
to the impossibility for the applicant to return to New Zealand, since her
maternal grandmother and only relative in that country had passed away in 1996,
the applicant’s paternal grandmother, a Canadian citizen, brought the applicant
to Canada on September 13, 2000, where many of the extended family
members of the applicant’s father resided. Since her arrival in Canada, the
applicant has been living in Canada with her paternal grandmother.
[7]
With
the support of an immigration consultant, the applicant made a refugee claim
which was heard by the RPD in July 2002 and was rejected on September 17, 2003.
The RPD determined that the applicant had no status in, or right to return
to China but that the applicant did not meet the definition of Convention refugee
based on her nationality as a citizen of New Zealand.
[8]
A
legal clinic then helped the applicant’s paternal grandmother to apply for
custody of the applicant, and her request to the Ontario Court of Justice was
granted on February 14, 2006.
[9]
In
April 2006, the applicant was given a notice of her removal order and advised of
her right to apply for a pre-removal risk assessment (PRRA). The applicant
filed a PRRA application in May 2006, which was rejected a year later. While
sympathetic to the applicant’s situation, the PRRA officer was not satisfied
that the applicant would face any risks if she were to return to New Zealand. This
officer noted however that the applicant’s situation was best suited for
consideration under H&C grounds.
[10]
Following
the reception of a notice of removal in May 2006, the applicant applied for
permanent resident status from within Canada on H&C grounds. In
July 2007, she was asked to submit additional information which was filed in
October and November 2007. The applicant’s H&C application was rejected in
April 2008. The negative decision of the H&C officer is impugned by the
present recourse.
III. The
Impugned H&C Decision
[11]
The
H&C officer concluded that “there is not a single piece of documentary
evidence provided” to support the applicant’s claim that she has no legal
status in China or that she was ordered to leave China by the Chinese government.
The officer also commented that “according to China’s
nationality law, [the applicant] is a Chinese citizen. Should she be required
to apply for it instead of recognized, there is no documentary evidence to
satisfy me she did.”
[12]
The
officer found “no credible evidence” showing that the applicant’s unauthorized
birth by China had led to
the denial of her legal status, exclusion from school, and forced separation
from her parents. The officer also did not accept the applicant’s argument that
the authorities in China communicated decisions verbally to her. The officer
noted: “it is questionable that a school would not give written notice of its
decision to refuse a pupil’s attendance. It is known that education system in China is well
managed.”
[13]
The
officer noted that the parental grandmother was granted by judgment of an Ontario
court
custody of the applicant in February 2006, but added that “this is not an
adoption”. The officer also added that the reasons submitted for custody were
not disclosed and stated that “I have considered the submission and am not
satisfied that [the applicant] could not return to her parents and her family
in her home country”.
[14]
The
officer rejected the explanation provided by the applicant’s legal
representative with respect to the different spelling of her parents’ last
names in different records. The officer commented: “as a Chinese myself, I know
this is not so. There is no such combination of ‘J-O-E’ and ‘S-U-E’ in Chinese
‘Pin In’. ‘Zou’ would be spelled ‘Chow’ in Cantonese and ‘Su’ would be
‘So’. I have confirmed this with an officer [who] speaks Cantonese. I would
understand that spelling mistakes might be made at registration in New Zealand. However,
the statement that it was the difference between Mandarin and Cantonese is not
acceptable.”
[15]
The
officer questioned the applicant’s credibility for having mentioned in her
Personal Information Form (PIF) in 2001 that her maternal grandmother was a
citizen of New Zealand, and later stated that her grandmother was only a
“visitor” to New Zealand who had been
visiting her widowed sister-in-law.
[16]
The
officer found that there was insufficient evidence to show that should the
applicant return to China, she would suffer undue or disproportionate
hardship. The officer concluded that the applicant having “attended school in China […] [was]
familiar with the school system in China […] noting that China is
considered having one of the best education system [sic].”
[17]
The
officer finally concluded that the applicant “would have a normal family life
of growing up with her parents and siblings. She would also have a bright
future in front of her in her home country.”
IV. Issues
A.
Should the H&C decision be set aside as unreasonable?
B. Should
the H&C decision be set aside as a result of a breach of procedural
fairness?
V. Analysis
Standard of Review
[18]
The
present case involves the application of law to a situation of fact only. The
appropriate standard of review here is therefore reasonableness. The question
at issue falls within the expertise of the PRRA officer and as a result
deference is owed and the Court should not intervene unless the PRRA officer’s
decision does not fall “within a range of possible, acceptable outcomes which
are defensible in respect of the facts and the law” (Dunsmuir v. New Brunswick, 2008
SCC 9, at para. 47).
[19]
But
if the PRRA officer committed a breach of natural justice or procedural
fairness, no deference is due and the Court will set aside the impugned
decision (Benitez v. Canada (Minister of
Citizenship and Immigration), 2006 FC 461, at para. 44).
A.
Should the H&C Decision Be Set Aside as Unreasonable?
1. Errors
in Findings of Fact
[20]
Where
a decision maker fails to take into consideration important material that was
placed before him, this could constitute a reviewable error (Khakh v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 1030, at para. 4). A
decision can also be set aside when the decision maker ignores credible and
trustworthy evidence and draws inappropriate inferences about an applicant’s
credibility based on an absence of evidence (Mui v. Canada (Minister of
Citizenship and Immigration), 2003 FC 1020).
[21]
In
the context of refugee claims, this Court has repeatedly held that when a
refugee claimant swears to the truth of certain allegations, a presumption is
created that those allegations are true unless there are good and valid reasons
to doubt their truthfulness. While a failure to offer documentation may be a
valid finding of fact, it cannot be related to the applicant’s credibility, in
the absence of evidence to contradict the allegations (Maldonado v. Minister
of Employment and Immigration, [1980] 2 F.C. 302 (C.A.); Anthonimuthu
v. Canada (Minister of Citizenship and Immigration), 2005
FC 141).
a) Country of Reference
[22]
The
officer ignored both the RPD and PRRA decisions which verified the applicant’s
country of reference as New Zealand, not China, because the
applicant does not have any legal status in China. The IRB had
specifically stated in its decision that while there is no direct evidence as
to the applicant’s status in China other than her exclusion from the family “hucou”
and her exist permit submitted as evidence of her forced departure, it
nevertheless applied its specialized knowledge to find that the applicant had
no status in or right to return to China.
[23]
Although
there appears to be discrepancies pertaining to other documentation related to
the applicant’s situation in China, the Court is nevertheless satisfied on the
balance of probabilities that the applicant does not have legal status in China
and that as a consequence the officer erred in basing his decision on China as
the country of reference as opposed to New Zealand, as previously
determined by the RPD and PRRA decisions that were ignored by the H&C officer
without any valid reason.
[24]
Dual
citizenship is not permitted in China; therefore, the applicant having been
born in New Zealand is a citizen
of that country. Furthermore, even if the applicant could benefit from
citizenship rights in China because her parents are both Chinese citizens, the
applicant’s exit visa constitutes further evidence that the applicant has
presently no status in China; she has rights maybe, but no present status in
China. Although the exit permit was not included in the tribunal record, this
Court can presume that this permit exited since the RPD refers specifically to
this permit in its decision.
b) Credibility
[25]
To
challenge the applicant’s credibility, the officer relied on the fact that
there was no credible evidence to prove that the applicant had been denied
legal status in China, but ignored on the other hand for no valid
reasons that her credibility had already been positively established by the IRB
and PRRA officers in this regard.
c)
Fine
[26]
The
officer ignored the documentary evidence confirming that a fine of 130 000
yuan applies in the district where the applicant’s parents reside to
those who have violated the one‑child policy. Whether or not the
applicant’s parents actually paid the fine was irrelevant since the applicant’s
claim was not based on her parents’ failure to pay the fine, but on the fact
that her mother gave birth to her in New Zealand due to the one-child
policy.
d) Parents’
Names
[27]
The
officer took into account irrelevant factors when she rejected the explanation
for the different spelling of the last names of the applicant’s parents. The
spelling discrepancies were not an issue until it was raised by the officer.
Although not determinative of the outcome, this finding of the officer shows
nevertheless the importance she attached to insignificant aspects of the
evidence to diminish the applicant’s credibility, while closing her eyes at the
same time on more important elements of proof with respect to the outcome
expected by the applicant.
e) Maternal
Grandmother
[28]
The
officer found discrepancies between the affidavit of the applicant’s paternal
grandmother and the applicant’s PIF with respect to the legal status of the
applicant’s maternal grandmother in New Zealand and this although the
status of the applicant’s grandmother in New Zealand is irrelevant and
that the statement of her status was made by the applicant’s legal
representative and not by her paternal grandmother. Again, the officer
considered an irrelevant discrepancy while ignoring more important aspects of
the evidence.
2. Best Interests of
the Child
[29]
Decision
makers should consider the children’s best interests as an important factor,
give them substantial weight, and be “alert, alive and sensitive” to them.
Where the interests of children are minimized in a manner inconsistent with Canada’s
humanitarian and compassionate tradition, the decision will be unreasonable (Baker
v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817,
at paras. 73, 75).
[30]
None
of the applicant’s submissions about her best interests were considered by the
H&C officer whose decision was inconsistent with her best interests as a
child.
[31]
Firstly,
the officer disregarded without any valid reason the main consideration behind the
custody order made by the Ontario Court in favour of the paternal grandmother.
It is stated law that the first duty of a court of justice granting a
custody order is always to consider the child’s best interests. The officer
here goes on to say that the custody order is not supported by sufficient
reasons although the factual evidence before him showed more than sufficient
reasons for the said order. In addition, the officer appears to have ignored
that the Ontario Court must be presumed to have been
governed only by “best interests of the applicant as a child” when it
rendered its decision. True the officer was not bound by the said custody order,
but the officer was nevertheless bound by the main consideration behind the
Ontario Court order. Nevertheless, the officer gives no valid reasons to disregard
this order or to diminish its legal effect.
[32]
Secondly,
the officer nevertheless found that the applicant would have a bright future in
China and this
despite the evidence showing that she had no legal status there. The officer
also concluded that the applicant would not suffer undue or disproportionate
hardship because the applicant had attended school in China and was
therefore familiar with the school system in China, when in fact, the applicant
only attended school for one year in China and was excluded
afterward.
[33]
Finally,
the officer either ignored or dismissed the close ties that the applicant has
built along the years with her paternal grandmother, her extended family
members and the broader community in Canada.
[34]
In
brief, the Court concludes that the H&C officer decided arbitrarily what was
best for the applicant’s interests as a child, and this without any
consideration for the applicant’s submissions, evidence and concerns. The officer’s
conclusion in this regard is unacceptable and unreasonable and as a consequence
justifies the intervention of the Court.
[35]
If
the applicant were to leave Canada, she would be sent to New Zealand, where she
has no remaining family ties and where she has not been since she was a baby.
Although the applicant is a citizen of New Zealand, which is a
democratic country with strong social and education systems, the Court does not
see how it would be in her best interests that she be separated at her age from
her entire family, including the grandmother to whom the Ontario Court of
Justice entrusted her legal custody.
[36]
By
remaining in Canada, the
applicant has the opportunity to live and grow among members of her extended
family. It would be inconsistent with the best interests of the applicant for
her to be sent to New Zealand, where she would live either in a foster
or group home or she would be adopted. Furthermore, the custody order granted
by the Ontario Court of Justice should be respected since it must be presumed
to have been rendered in the applicant’s best interests and that no evidence of
any event was adduced since this order that could have permitted the officer to
arrive at a different conclusion.
B. Should
the H&C Decision Be Set Aside as a Result of a Breach of Procedural
Fairness?
[37]
The
officer’s errors and omissions when viewed as a whole on the first issue are
sufficiently important to render the impugned decision unreasonable without the
necessity for this Court to address the other issue concerning the alleged
breach of procedural fairness.
[38]
The
Court therefore finds the impugned decision unreasonable and as a result will
set it aside, while agreeing with the parties that there is no important question
of general interest here to certify.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application is allowed, the decision dated April 22, 2008, is set aside, and
the matter is referred to another immigration officer for rehearing.
“Maurice
E. Lagacé”
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