Date: 20090730
Docket: IMM-560-09
Citation: 2009 FC 794
Vancouver, British Columbia, July
30, 2009
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
DONG
DONG JIANG
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicant is an adult male citizen of the People’s Republic of China. He entered Canada on a student
visa in 2002. On November 5, 2004, the Applicant made a sur place
refugee claim. That claim was rejected by a decision of the Immigration and
Refugee Board dated July 6, 2006. The Applicant’s removal was submitted for a
Pre-Removal Risk Assessment (PRRA). That submission was rejected by a
decision of a PRRA Officer dated January 13, 2009. It is this decision that is
the subject of this application for judicial review.
[2]
For
the reasons that follow, I find that this application is dismissed.
[3]
The
Applicant’s counsel raises three issues for consideration on this judicial
review application:
1. Did the PRRA
Officer err by not holding a hearing pursuant to paragraph 113(b) of the
Immigration and Refugee Protection Act, S.C. 2000, c. 27?
2. Did the PRRA
Officer err regarding the issues of Interested Parties and Corroborating
Evidence?
3. Did the PRRA
Officer err in holding that the Applicant is not at risk as a Protestant and
that the activities of the House Church would not necessarily be considered illegal in China?
[4]
I
will address each of these issues in turn, but first turn to the standard of
review to be applied in cases such as this.
Standard of Review
[5]
The
issues raised by the Applicant concern the reasonableness of the PRRA Officer’s
decision including whether the PRRA Officer had proper regard to all the
evidence when reaching a decision. Post Dunsmuir v. New
Brunswick,
[2008] S.C.J. No. 9, such decisions in the PRRA context are to be reviewed on a
standard of reasonableness (Christopher v. Canada (Minister of Citizenship
and Immigration), [2008] F.C.J. No. 1199 per Kelen J.).
[6]
At
paragraph 47 of Dunsmuir, reasonableness has been articulated as:
… concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.
[7]
The
Court should show a high degree of deference to decisions of the PRRA Officer
as an administrative fact-finder. At paragraph 46 of Khosa v. MCI,
2009 SCC 12, Justice Binnie, for majority of the Supreme Court of Canada,
stated that:
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.
Issue #1 Did the PRRA
Officer err by not holding a hearing pursuant to paragraph 113(b) of the
Immigration and Refugee Protection Act, S.C. 2000, c. 27?
[8]
Section
113(b) of the Immigration and Refugee Protection Act (IRPA) provides
that a PRRA officer “may” hold a hearing if, on the basis of certain prescribed
factors, the Minister is of the opinion that a hearing should be held. Section
167 of the IRPA Regulations, SOR/2002-227, as amended, set out the
factors to be considered:
167. Hearing – prescribed factors – For
the purpose of determining whether a hearing is required under paragraph 113(b)
of the Act, the factors are the following:
(a) whether there is evidence that raises
a serious issue of the applicant’s credibility and is related to the factors
set out in sections 96 and 97 of the Act;
(b) whether the evidence is central to
the decision with respect to the application for protection; and
(c) whether the evidence, if accepted,
would justify allowing the application for protection.
[9]
Section
167, above, has been considered by Justice Phelan of this Court in Tekie v.
Canada (M.C.I.), 2005 FC 27, where he stated, as I would have, that the
section is awkwardly worded but that it appears to become operative where
credibility is an issue which could result in a negative PRRA decision. He
wrote at paragraphs 15 and 16:
15 Section 167 is an awkwardly
worded section. On one reading of the section, paragraph (a) suggests that the
evidence at issue is evidence which challenges the presumption of the
Applicant’s credibility. However, in paragraph (c), that same evidence would be
evidence that would favour an Applicant.
16 In my view, section 167 becomes
operative where credibility is an issue which could result in a negative PRRA
decision. The intent of the provision is to allow an Applicant to face any
credibility concern which may be put in issue.
[10]
Justice
Zinn of this Court considered section 167 in Ferguson v. Canada (M.C.I.),
2008 FC 1067, noting at paragraph 8 of his reasons that it was
“common ground between the parties” that if all the requirements of that
section are met then the PRRA Officer should hold a hearing. The question he
had to face was whether the grounds set out in subsection 167(a) were met.
[11]
A
review of the PRRA Officer’s decision at issue here makes it clear that her
decision was not based on credibility, but on the lack of evidence of
personalized risk to the Applicant. The PRRA Officer accepted the
Applicant’s assertion that he was a baptized Christian, but the PRRA Officer
found that there was no evidence of personalized risk as a result. On the
evidence, the PRRA Officer concluded that the “house church” where the
Applicant had attended would not necessarily be considered illegal. The PRRA
Officer found that the lack of corroborative evidence meant that little weight
was to be given to the Applicant’s assertion that he would be wanted by the
Public Security Bureau upon his return to China. The PRRA
Officer concluded by writing:
Consequently,
I find insufficient evidence to show that Mr. Jiang, if he returns to China, would face a personalized,
forward-looking risk should he participate in a house church group, or should
he help his mother to set up another Bible study session in someone’s house.
…
I find that the applicant has not
established that he faces more than a mere possibility of persecution on
any Convention ground, as per section 96 of IRPA. I find that he has not
established on a balance of probabilities that he faces a personalized risk to
his life, or of cruel and unusual treatment or punishment, or a danger of
torture, as per section 97 of IRPA. I find that the applicant is not a
Convention refugee or a person in need of protection. The PRRA application is
rejected.
[12]
Counsel
for the Applicant points to a passage of the PRRA Officer’s reasons at page 4
and argues that, by implication, the PRRA Officer’s reasoning was influenced
and permeated by the Refugee Division’s finding that the Applicant lacked
credibility:
In rendering its decision, the RPD stated
that he was “a witness utterly lacking in credibility,” and found numerous
discrepancies in his evidence for which he did not provide reasonable explanations.
In addition,
The Refugee Protection Division has
serious doubts that the claimant himself is a Christian as alleged. Although he
has demonstrated some familiarity with the Bible, clearly he has no knowledge
of the meaning or significance of either Christmas or Easter.
I am not bound by the RPD’s decision.
However, I have reviewed the decision, and the reasons given for it. The RPD is
an expert body in the determination of risk of persecution, and thus
considerable weight has been given to the Board’s finding with respect to risk.
A PRRA application is not an appeal of
the RPD decision. It is an opportunity to present new evidence regarding the
applicant’s circumstances and/or a significant change in the applicant’s home
country conditions. In addition, a PRRA application is not a Humanitarian and
Compassionate application.
[13]
I
am satisfied, in reading the PRRA Officer’s decision as a whole, that there was
no undue influence that would have improperly prejudiced the decision. In that
regard, I echo the views of Blanchard J. in Selliah v. Canada (M.C.I.),
2004 FC 872, at paragraph 26:
26 I find though the PRRA decision
does contain references to the adverse credibility findings made by the CRDD, I
am satisfied that the Officer did not import into her decision the credibility
findings of the CRDD and that such references in the officer’s reasons were not
determinative of her decision. The Officer did not err in considering the CRDD
decision, indeed in the context of a PRRA application it was appropriate for
the Officer to do so. Section 113(c) of the IRPA provides that the factors
set out in sections 96 and 97 of the IRPA shall form the basis for
consideration of an application for protection.
[14]
I
find, therefore, that the requirements of section 167 of the Regulations were
not met. The PRRA Officer was under no obligation to conduct an oral
hearing.
Issue #2 Did the PRRA
Officer err regarding the issues of Interested Parties and Corroborating
Evidence?
[15]
It
is a function of a PRRA Officer to weigh and consider evidence. Having regard
to the decisions of the Supreme Court of Canada in Dunsmuir and Khosa
previously cited, a high degree of deference is to be given to the
decisions of the PRRA Officer.
[16]
In
this regard, the Applicant’s counsel raises a number of concerns as to the
manner in which the PRRA Officer handled the evidence, namely:
Evidence of the mother (letters, medical records):
The Officer did not dismiss the material of the mother out-of-hand. The
Officer analyzed the mother’s evidence but assigned it little weight. It was
not unreasonable for the Officer to assign this evidence little weight and to
find that the mother was an interested party.
Evidence of the family friend, Sun Xiao
Ling
(letter of support): She was a friend of the mother and leader of the
house church attended by the mother and from time to time by the Applicant.
She is close to being an interested party. The PRRA Officer is not under
an obligation to give full weight to such evidence and may give it
little weight, as was done in this case.
Medical evidence (of the mother’s physical
persecution): The Applicant argues that the Officer used a higher standard
of proof for the mother’s medical evidence of physical persecution.
The Officer stated that she disregarded the medical evidence as “I have
considered these submissions [including the medical evidence], and give them
little weight… The uncertified medical certificate is a photocopy” (Applicant’s
Record, page 14, para. 7). There is no evidence that the Officer used a higher
standard of proof to evaluate the medical evidence and there was no obligation
for the Officer to seek original medical evidence (Selliah v. Canada
(M.C.I.), 2004 FC 872 at para. 22, per Blanchard J.).
It was not reasonable for the Officer to
dismiss the medical records either because they were uncertified and/or because
they were a photocopy. The PRRA Application guidelines (Applicant’s Record,
page 41) do not state that the documents must be either the original or
certified. Furthermore, the evidence in the medical records supports the
persecution faced by the mother, and does not directly support the position
that the Applicant is in danger.
Opportunity to present better medical
evidence:
The Applicant argues that the Officer erred in law by not giving the Applicant
an opportunity to present the mother’s original medical records at a hearing
(Applicant’s Record, Memo of Fact and Law, para. 34). It is the
Applicant’s responsibility to prove their case on a balance of probability
(Ferguson v. Canada supra, para. 21).It was not unreasonable for
the Officer to consider the case based on the material before her. The Officer
is not obliged to give an Applicant continuing opportunities to improve the evidence.
Evidence that the Applicant was still
wanted in China for his associations with an
illegal house church:
The Applicant states that it was unreasonable for the Officer to assume
that the Chinese Government would leave a subpoena with the Applicant’s family
and that this subpoena could be produced as evidence. In his Affidavit, (Applicant’s
Record, page 22, para. 11) the Applicant claims that the Chinese authorities
came to find him in July 2006 and February 2007, both after his Refugee hearing
and decision. He claims that the authorities did not leave a summons or warrant
in either 2006 or 2007.
At his Board hearing, the Applicant
stated that the Authorities had attempted to arrest him in October, 2004. The
Applicant was not clear if his family had a summons from this occurrence,
changing his story on several occasions. His position, as stated in his
PIF (Applicant’s Record, page 34) was that a summons was left. Based on
the fact that the Applicant stated he was able to get a summons for the October
13 2004, event, it was not unreasonable for the Officer to expect the
Applicant to adduce supportive evidence of the subpoena from 2006 or 2007.
[17]
Taking
all factors into consideration, it was not unreasonable for the PRRA Officer to
evaluate and deal with the evidence as she did.
Issue #3 Did the PRRA
Officer err in holding that the Applicant is not at risk as a Protestant and
that the activities of the House Church would not necessarily be considered
illegal in China?
[18]
The
Applicant argues that the PRRA Officer erred by failing to apply the country
documents which she quotes to the situation of house churches. The
Applicant argues that the issue for persecution is not if the Applicant is
a Protestant, it is if he is a member of an illegal church, namely a house
church.
[19]
On
page 12 of the decision under review the PRRA Officer stated:
I find insufficient evidence to show that
Mr. Jiang, if he returns to China, would face a personalized, forward-looking risk should he
participate in a house church group, or should he help his mother to set up
another Bible study session in someone’s house.
[20]
The
PRRA application appears to contain contradictory evidence with regard to the
activities at the house church. There is a letter stating that the church had
grown and was anticipated to grow larger than 35 members (AR, page 77). Another
is a photo depicting the house church members during a house church session
(AR, page 87). The PRRA Officer concluded that the activities in the picture
would not necessarily be found to be illegal. The documentary reports as to
country conditions also contain contradictory statements. It is the function of
the PRRA Officer to weigh this evidence.
[21]
As
stated by Justice Zinn in Ferguson v. Canada supra, at paragraph 35:
However, every applicant for a
Pre-removal Risk Assessment, and their counsel, must take responsibility
to ensure that all of the relevant evidence is before the officer and, of equal
importance, that they present the best evidence in support of the
application. Where that is not done, the consequences of a failed
application rest with the Applicant and counsel.
[22]
Based
on the evidence before the PRRA Officer in this case, the determination of the
PRRA Officer was not unreasonable.
Conclusion
[23]
I
find that the criteria established in section 113(b) of IRPA and section 167 of
the Regulations need not be applied in the circumstances of this case. The PRRA
Officer’s handling of the evidence and determination based on the evidence
was not unreasonable and does not constitute grounds for setting the decision
aside.
[24]
The
application is dismissed. There is no question for certification and no basis
for awarding costs.
JUDGMENT
For the
reasons given,
THIS COURT ORDERS AND
ADJUDGES that:
1. The application is
dismissed.
2. There is no question
for certification.
3. No Order as to costs.
“Roger
T. Hughes”
Email this Content