Date: 20110624
Docket: IMM-4290-10
Citation: 2011 FC 771
Ottawa, Ontario, June 24, 2011
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
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CHAOHUI LIN
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Applicant
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and
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THE MINISTER OF PUBLIC SAFETY
AND
EMERGENCY PREPAREDNESS
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
applicant is a citizen of China. His claim for refugee protection was
twice refused by the Refugee Protection Division of the Immigration and Refugee
Board. This is his application for judicial review of the decision made on July
26, 2010 by an enforcement officer of the Canada Border Services Agency
(“CBSA”) in Toronto,
Ontario, refusing
the applicant’s request to defer his removal.
[2]
The
applicant served as a crewman on a Chinese vessel. He left the ship when it
arrived in Canada and made a refugee claim based on fear of being targeted due
to his involvement in an underground Christian church in China. The first
panel did not believe that the applicant was a Christian. That decision was
sent back by this Court for reconsideration: Lin v. Canada (Minister of
Citizenship and Immigration), 2008 FC 558. The second panel accepted
that he was a Christian but refused the claim on the basis that there were no
specific reports of adherents of house churches being detained in the Fujian Province where the
applicant lived. That decision was upheld on review: Lin v. Canada (Minister of
Citizenship and Immigration), 2010 FC 108.
[3]
The
applicant was advised of his right to submit a Pre-Removal Risk Assessment (“PRRA”)
application on April 17, 2010. He says he retained Elizabeth Cheung, an
immigration consultant working for Mississauga Immigration Services Corporation.
It is unclear whether Ms. Cheung accepted to act for the applicant. He says she
told him that she had filed the application on May 11, 2010. However, on July
5, 2010, the CBSA informed Mr. Lin that his PRRA application was not received.
He says that when he asked Ms. Cheung about this, she assured him everything
was filed properly.
[4]
On
or around July 9, 2010 the applicant was called to the CBSA in the Greater
Toronto Enforcement Centre (“GTEC”) where he was informed that his removal date
would soon be scheduled. He was asked to meet with them again on July 19, 2010.
On July 15, 2010 the applicant retained another consultant, Peter Lam, to assist
him with the situation. Mr. Lam referred the applicant to his current counsel
whom the applicant retained that same day.
[5]
Counsel
for the applicant was informed by the PRRA Office on July 20, 2010 that after a
review of their record no application was found on file. A second PRRA
application was faxed and couriered to the PRRA Office on July 22, 2010. That
same day, the applicant submitted a request to defer his removal to China. The request
was based on the PRRA and on his application for permanent residence in the
Spouse or Common-Law Partner in Canada class. Mr. Lin had married
Ms. Xiaomei Chen on March 21, 2010. On April 9, 2010 Ms. Chen filed an
application to sponsor him for permanent residence.
[6]
The
officer considered that the request for deferral was not warranted by the
recent PRRA application nor did she find the applicant to be eligible for an
administrative deferral as someone who had submitted a spousal class application
because it was submitted after he became removal-ready. Moreover, the officer
found that there was insufficient evidence to support the risk allegations
advanced by the applicant.
[7]
A
stay of removal was granted on August 3, 2010 pending the outcome of this
application.
[8]
The
issues raised at the hearing were the scope of the officer’s discretion to
defer removal and whether it was exercised reasonably in these circumstances.
While the effect of the spousal sponsorship was raised in the applicant’s written
representations, it was not pressed in oral argument.
[9]
The
officer was correct to note that “an Enforcement Officer has very little
discretion to defer removal and an obligation under section 48 of the
Immigration and Refugee Protection Act to enforce removal orders as soon as
reasonably practicable”. But, there are certain circumstances where deferral is
warranted: “for those applications where failure to defer will expose the
applicant to the risk of death, extreme sanction or inhumane treatment”: Baron v. Canada (Minister of Public
Safety and Emergency Preparedness), 2009 FCA 81, [2010] 2 F.C.R. 311 at para. 51.
[10]
The
question here was whether this is one of those cases where the officer’s
failure to defer could trigger this high level of risk?
[11]
The
main risk identified on the PRRA application was whether the applicant would face
the risk of serious human rights violations, prolonged detention and inhumane
treatment for having jumped ship, for harming the “honour or interests” of
China, for breaching his Labour Contract as a crew member of Guangzhou China
Ocean Shipping, for violating the laws governing the use and management of
Chinese public affairs passports, and any other infractions for which he may be
found guilty in China. In considering this risk, the officer noted the
following:
I have also considered Mr.
Lin’s concerns regarding his safety if he returned to China which was submitted by counsel as an
affidavit. While I acknowledge Mr. Lin’s trepidation and sympathize with his
situation, I nevertheless find that insufficient evidence has been submitted to
corroborate these allegations of risk. The Refugee Protection Division has
already assessed Mr. Lin’s circumstances and found him not to be a Convention
Refugee on 17 April 2007. I also note that Mr. Lin has already availed himself
of the legal recourse at the Federal Court, to which his redetermination of his
Refugee decision was found to be negative on 27 January 2009. Mr. Lin’s
Application for Leave and Judicial Review was also denied on 01 February 2010.
[12]
It
was not the officer’s responsibility to make the risk assessment. Rather, as
noted by Justice Denis Pelletier, as he then was, at paragraph 50 in Wang
v. Canada (Minister of Citizenship and Immigration), 2001 FCT 148, 13 Imm. L.R. (3d) 289, and as cited
recently by Justice Sean Harrington in his Reasons for Order and Order in the
stay application of Shpati v. Canada (Minister of
Public Safety and Emergency Preparedness), 2010 FC 367, 89 Imm.
L.R. (3d) 25 (Shpati I) at paragraph 41:
The discretion to be exercised is whether
or not to defer to another process which may render the removal order
ineffective or unenforceable, the object of that process being to determine
whether removal of that person would expose him to a risk of death or other
extreme sanction.
See also Kaur v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 741, 106 A.C.W.S. (3d) 1092 at
para. 15 where Justice Edmond Blanchard describes a removal officer’s discretion
this way:
I am also of the view that discretion
to be exercised by the removal officer does not consist of assessing risk, but
rather one of assessing whether there are special circumstances that would
justify her deferring the removal.
[13]
Although
the record indicates
that the ship-jumping issue was raised before the RPD, it is not clear whether the evidence
which suggests that the applicant could face ill treatment and/or serious human
rights violations if returned to China because of this was
seriously considered. That may have been, as the applicant conceded, because it
was not pressed by his counsel at the time. Nonetheless, both panel decisions
and the resulting judicial review decisions dealt with the issue of religious
persecution and not the risk associated with ship-jumping.
[14]
It
Article 4 of the “Law on the Control of the Exit and Entry of Citizens” in
China, as set out in a document in the record, that “[a]fter leaving the
country, Chinese citizens may not commit any act harmful to the security,
honour or interests of their country”. Article 14 of the same law goes on to
discuss penalties for entering and exiting of the country illegally. Penalties
could include: a warning, detention or for more serious crimes, criminal
responsibility.
[15]
In
another document citing from the Refugee Review Tribunal of Australia, it
is noted that it is an offence under article 109 of the Criminal Law for a
state employee to “defect while outside China, thereby
endangering state security”. The boat for which the applicant worked is
state-owned and, therefore, the applicant submits he would be subject to
penalties as an employee of the Chinese government. The US Court of Appeals for
the Seventh Circuit has also observed, in Yi-Tu Lian v. John D. Ashcroft,
379 F.3d 457 (7th Cir 2004), that
there was uncertainty as to what would actually happen to individuals who had
left China illegally but were repatriated for various reasons.
[16]
The
applicant submitted additional documentation to the officer regarding China’s violations
of human rights. It was open to the officer to consider this evidence in order
to assess whether removal should be deferred until the PRRA application could
be determined. In the particular circumstances of this case, I think it was
unreasonable for the officer not to have exercised her discretion to do so. The
question was too complex for an enforcement officer to deal with at the removal
stage. It may be that a PRRA officer, properly informed, may come to the
conclusion that the risk of harm does not amount to the level contemplated by Wang
and Baron, above. But the enforcement officer was not equipped to make
that determination.
[17]
In
the particular circumstances of this case, the view of Justice Harrington in Shpati
I, above, at paragraph 45 is particularly apt. He stated that he had
difficulty in accepting that “Parliament intended that it was “reasonably
practicable,” for an enforcement officer, who is not trained in these matters,
to deprive an applicant of the very recourse Parliament has given him”. The
officer should have considered that removal would not be practicable until a
specialized assessment of the risk had been obtained. For that reason, I will
grant this application and quash the officer’s decision. The applicant has
filed a PRRA and is entitled, under Canadian law, to a proper risk assessment.
That does not, of course, assume the outcome of that assessment.
[18]
In
oral argument the applicant proposed the following question for certification:
Where
an applicant has pending PRRA litigation before the Court, does this pending
litigation require that he be allowed to remain in Canada until its conclusion
in view of section 72 of the IRPA, section 31(2) of the Interpretation
Act, Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817
and the Respondent's Manual PP3, without the necessity to seek an application
for a stay of removal?
[19]
This
same question was proposed for certification by the applicant in Shpati v. Canada (Minister of
Public Safety and Emergency Preparedness), 2010 FC 1046, 93 Imm.
L.R. (3d) 117 (Shpati II), applications for judicial review of a PRRA,
H&C and an enforcement officer’s refusal to defer. The applicant also
referred me to Omar v. Canada (Solicitor General), 2004 FC
1740, 44 Imm. L.R. (3d) 114, a decision of Justice Yvon Pinard, where
counsel for the applicant sought to certify four questions relating to section 24 of the Canadian
Charter of Rights and Freedoms, Canada's international obligations, the
Convention Against Torture and the situation in the West Bank or the Occupied
Territories.
[20]
In
Shpati II, Justice Harrington granted the application for the refusal
to defer but chose not to certify the question noted above. Instead, he
certified two alternative questions advanced by the respondent: Shpati II,
above, at para. 55. In Omar, Justice Pinard found the proposed
questions not to be considered of general importance within the meaning of
paragraph 74(d) of the IRPA.
[21]
The
test for certification has been articulated as whether there a serious question
of general importance which would be dispositive of an appeal: Zazai v. Canada (Minister of
Citizenship and Immigration), 2004 FCA 89, 318 N.R. 365. Certification
is not necessary where the question is not a live issue and the Court has
consistently accepted a prior authority: Thurasingham v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1332, 39 Imm. L.R. (3d)
74. Cognizant of the serious risks which the applicant may face if
removed to China, and having determined this matter in favour of
the applicant, I agree with the respondent that certification is not necessary.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application is granted. No questions are
certified.
“Richard
G. Mosley”
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