Date: 20071031
Docket: IMM-1130-07
Citation: 2007 FC 1129
Ottawa, Ontario, October 31,
2007
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
QUAN WEI ZHOU, YU PING ZHOU
and
VICTOR ZHOU
Applicant(s)
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent(s)
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review brought by Quan Wei Zhou, Yu Ping Zhou
and Victor Zhou from a negative Pre-Removal Risk Assessment (PRRA) which was
concluded by reasons given on September 18, 2006.
Background
[2]
The
adult Applicants, Quan Wei Zhou and Yu Ping Zhou, are nationals of China. They
arrived in Canada on March 28,
1996 with their dependent child, Victor Zhou. Victor was born in Argentina on July 25,
1995 and is a citizen of that country. A second child, Louise Zhou, was born
into the family on February 18, 1997. She is a Canadian citizen and is,
therefore, not a party to this application.
[3]
Shortly
after arriving in Canada, the Applicants made a refugee claim. That
claim was rejected on September 7, 1999 but the family remained in Canada and
submitted a PRRA application on May 25, 2004. That risk assessment was
outstanding for almost 3 years; but on March 10, 2007, the Applicants were
advised that their application had been rejected. They were then scheduled for
removal on March 28, 2007. That removal order was subsequently withdrawn
because of difficulties encountered in obtaining travel documents for the
children.
[4]
The
Applicants' 1996 refugee
claim was based on allegations by Quan Wei Zhou that he had been persecuted in China for his
pro-democratic political beliefs. The Immigration and Refugee Board (IRB) did
not believe Mr. Zhou and on that basis it rejected the family's protection
claim.
[5]
When
the family submitted its application for a PRRA, the issue of political
persecution was reasserted along with a claimed risk arising from China's family
planning policy. Their claim narrative stated:
Initially, I fled China due to my participation in the
pro-democracy movement, which resulted in my detention and interrogation and
attempts to obtain a signed confession from myself. My refusal resulted in
torture and removal to a labour camp for a sentence of one year. I believe I
would be sentenced to long term imprisonment for my original participation in
this pro-democracy movement and subsequent escape from the labour camp.
Further, the punishment for violating China's Population and Family Planning Law,
which took effect September 1, 2002 would be prohibitive. This program is
enforced through severe penalties for those who do not comply with the
"single child policy for married couples", including extortionate
fines, destruction of property imprisonment and even torture.
Mr. Zhou Bingli "Vice Minister of
the State Family Committee warned her that from the date the build took effect”,
those who have an extra policy birth must face the music". It is possible
under the new law, that my wife could be forced to have her fallopian tubes
tied and due to a preference for males, my Canadian born daughter could be
denied residence, food rations where applicable and schooling. This same could
also apply to my son, born outside of China,
in Argentina.
The PRRA Decision
[6]
The
PRRA Officer did not accept that the family faced any risk of political
persecution in China and, in so finding, the Officer relied heavily
on the IRB decision to that effect. This determination was in keeping with the
statutory limitations imposed by section 113 of the Immigration Refugee and
Protection Act, S.C. 2001, c.27, (IRPA) on the scope of a PRRA review and
was not challenged by the Applicants.
[7]
The
PRRA Officer drew a number of conclusions concerning the Applicants’ claims
that they faced a risk of persecution because of their status as a two-child
family. In determining that the Applicants would not be at risk on that basis,
the Officer found:
(a)
Chinese law restricts the rights of families to choose the number of
children they have and the period of time between births;
(b)
penalties for violating the family planning policy can be strict and can
include fines and the termination of pregnancies;
(c)
implementation of the policy at the local level has resulted in serious
human rights abuses including forced abortions and sterilizations even though
such practices are violations of the law;
(d)
Chinese authorities have, in some cases, responded to situations of
local abuse by arresting or firing those responsible;
(e)
the documentary evidence discussing the enforcement of the family planning
policy presented an uneven picture;
(f)
the enforcement of the policy is not universal and, in rural areas, the
one child rule is not strictly followed; and
[8]
The
PRRA Officer completed the review of the country condition evidence by citing
with approval a United Kingdom Home Office report which noted that Chinese
nationals who have "above quota” children while abroad and then return to
China are generally treated more leniently than those who violate quotas while within
the country.
[9]
The
Officer then concluded that the Applicants had failed to establish with
persuasive evidence that they would face more than the mere possibility of
persecution if they were to return to China.
[10]
The
PRRA Officer went on to consider the issue of the treatment in China of
foreign-born children and specifically whether one or both of the Zhou children
might face discrimination in the provision of educational and social services.
The Officer found that the rights of returning Chinese nationals and their
family members are protected by law and even children born in contravention of
family planning rules can usually be added to the family household register by
payment of a bribe. Even if the parents were required to pay for educational
or medical services for one of their children, the PRRA Officer found that
refugee protection would not be warranted.
Issues
[11]
(a) Was
the PRRA Officer's finding that the Applicants would not face more than a mere
possibility of persecution (forced sterilization) made on the basis of a
reviewable error?
(b) Notwithstanding
the finding in Canada (Minister of Citizenship and Immigration) v. Varga 2006
FCA 394, 277 D.L.R. (4th) 762, did the PRRA Officer have an
obligation to thoroughly consider the best interests of the children, once undertaking
that exercise?
Analysis
[12]
As
a general statement describing the standard of review applicable to PRRA
decisions, I would adopt the views of my colleague Justice Carolyn
Layden-Stevenson in Nejad v. Canada (MCI), 2006 FC 1444, [2006] F.C.J.
No. 1810 at para 14. In this case, however, I can identify no error by the
PRRA Officer and it is unnecessary to undertake a pragmatic and functional
analysis.
[13]
The
Applicants contended that the PRRA Officer had "plenty of credible and
trustworthy evidence demonstrating that persons in [their] situation"
would face a serious possibility of persecution in China. While that
is perhaps an arguable point, the Officer did not agree. Instead, the Officer
found the evidence to be insufficient to meet the burden resting upon the
Applicants. Further, it was not at all clear from the evidence that the
Applicants had violated Chinese family planning rules by having two children
abroad, let alone what the consequences might be had they done so.
[14]
It
was not unreasonable for the Officer to have concluded that, as returning
nationals, the Applicants would not be subjected to sterilization or to other
unlawful persecutorial practices. I agree with counsel for the Respondent that
this was a pure finding of fact that is deserving of the highest level of judicial
deference. It is not the function of the Court on judicial review to engage in
an exercise of re-weighing evidence and, in the result, this argument is
rejected.
[15]
I
also do not agree that the Officer was unfairly selective in the assessment of
the evidence dealing with the application of Chinese family planning rules.
There was ample evidence to support the Officer's finding
that enforcement of these rules was uneven and that the authorities were
cracking down on local officials who unlawfully coerced citizens to undergo
sterilization. The evidence relied upon by the Applicants did not establish
that they would "inevitably be forced to undergo sterilization" and,
instead, pointed only to the likelihood that a fine or fee would be levied in
their circumstances.
[16]
The
Applicants argued that the family planning rules were more strictly enforced in
urban areas like the one to which they would be required to return. While that
may be so, the evidence also indicated that the unlawful practice of forced
sterilization was mostly carried out in rural areas by overzealous local
officials.
[17]
The
Applicants contended that the Officer erred by imposing too high a burden of
proof upon them, exceeding the proper test of "reasonable chance."
This argument was not advanced with much enthusiasm as can be seen from the
following passage from their Memorandum of Fact and Law:
Had it been any other case, the
Applicants would quite likely not have made the foregoing submission on the
test applied. However, given the amount of evidence which directly contradicts
the Officer’s conclusions, the Applicants are left with a strong impression
that the Officer was quite likely applying a much higher threshold than that
prescribed by the Federal Court of Appeal’s decision in Adjei.
Adjei v. MEI [1989] 2 F.C. 680 at 683 (F.C.A.)
[18]
It
is clear from the decision that the Officer’s conclusion correctly stated the
burden of proof. The earlier references in the decision to “would be
targeted" and “would be subject to" seem to me to be properly
confined to points of evidence and not intended to be restatements of the
burden of proof.
[19]
It
is clear from Varga, above, that a PRRA is not the place to assess the
interests of children affected by the deportation of their parents. The fact
that this PRRA Officer appears to have embarked upon such an exercise does not
give rise to an argument that the decision is vulnerable if that exercise was
flawed. Were it otherwise, the matter would be required to be remitted for
reconsideration on an issue falling outside of the proper scope of PRRA review,
leading to the pointless result that the reconsideration would proceed without
any assessment of the children’s interests. Regardless, it appears that the
PRRA Officer’s discussion about the children was primarily and properly focused
on the related risk implications and impediments facing the Applicants if they
returned home with two young foreign-born children.
[20]
In
conclusion, I can identify no reviewable error in the PRRA Officer’s decision.
This application for judicial review is, therefore, dismissed. Neither party
proposed a certified question and no issue of general importance arises on this
record.
JUDGMENT
THIS COURT ADJUDGES that this application for judicial review is dismissed.
“ R. L. Barnes ”
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