Date: 20080226
Docket: IMM-2203-07
Citation: 2008 FC 253
Ottawa, Ontario, February 26, 2008
PRESENT: The Honourable Barry Strayer, Deputy Judge
BETWEEN:
WENYI
ZHOU
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
Introduction
[1]
This
is an application for judicial review of a decision made on March 30, 2007 by a
Pre-Removal Risk Assessment Officer (Officer) which determined that the
Applicant would not be subject to risk of persecution, danger of torture, risk of
life or limb or risk of cruel and unusual treatment or punishment if returned
to China.
Facts
[2]
The
Applicant is a woman born in China in 1973 and is a citizen of that country.
She came to Canada in
September, 1999 on a Student Visa. She made a refugee claim at that time but
withdrew it in February 2000 because she now says it was based on a fabricated
story. Apparently, she withdrew her claim in order to make an application for
permanent residence. When that failed, she sought an extension of her visitor’s
visa. She then made a further refugee claim on the basis that since her arrival
in Canada she had become a Christian, had come to be known publicly as such,
and feared persecution as a Christian if she returned to China. This
application was dismissed by the Immigration and Refugee Board (Refugee
Protection Division) (Board) on August 25, 2003. After hearing the Applicant’s
testimony and observing her demeanour, and considering testimonial letters from
the administrator for a Christian publication called Herald Monthly,
testimonials from her Church, and certain conflicts in her evidence as to where
she had worked prior to 1999 in China, the Board found her to be “totally
devoid of any credibility or trustworthiness”. It concluded that “there is not
a scintilla of truth to the story that the claimant has narrated”. It therefore
dismissed her refugee claim and also found that she was not a person in need of
protection. In early 2007 she submitted an application to be found a person in
need of protection.
[3]
The
Officer who determined this application noted that the Applicant was relying
essentially on the same risks as she had articulated before the Board: namely
that she is a devoted Christian and works as a journalist for Herald Monthly
and fears the Chinese authorities if she returns to China. The Officer
recognized that she had provided a substantial package of materials relevant to
current country conditions in China and the Officer confirmed that he had read
this material. The Officer also referred to many letters from others confirming
that she is a genuine Christian who volunteers in the community and works as a
journalist for Chinese Christian newspapers, that she is of good character and
has a good knowledge of the Bible. The Officer also noted documents indicating
that the Applicant donates money to her Church. Also submitted were articles in
Chinese written by the Applicant for a Christian magazine but they were
provided without a translated copy. While the Officer could thus confirm that
she had authored certain articles he had no idea of what these articles might
say and gave them little weight in determining any bearing they might have on
the risk to her in returning to China. He observed that
“evidence of more articles is not evidence of new risk developments”. The
Applicant submitted photographs of herself at various events, mostly if not
all, church-related and at least one going back to her Baptism in 2000, well
before the Board hearing on the refugee claim. In respect to this material, the
Officer concluded that the photos pre-dating the Board hearing are not “new
evidence” and those that post-date the Board hearing showing the Applicant
singing in the choir and attending a rally do not amount to new risk
developments nor do they indicate that the Applicant is a Christian leader with
a profile sufficient to attract the attention of Chinese authorities. With
respect to the reports on country conditions the Officer did not find that the
conditions in China for
Christians had worsened notably since the Board determination of her refugee
claim. He noted that among other things, the documentary evidence indicated
that the Government of China recognizes several religions including the
Protestant and Catholic religions and that it registers places for formal
worship. While it does not interfere with private family worship at home, it
may interfere with assemblages for worship in non-licensed or unregistered
premises. It so interferes sometimes by arresting leaders and harassing
worshippers. The material also indicated that the extent of religious freedom
continues to vary widely within China, that officially
sanctioned religious activity continues to increase in most areas, and that
religious activity has grown not only among the five recognized religions but
among others as well. The Officer noted that he had no evidence before him that
the Applicant intended to participate in unregistered Church activities rather
than at government-approved venues. The Officer therefore concluded that such
new evidence as was presented did not demonstrate to his satisfaction new risks
having arisen since the dismissal of the Applicant’s refugee claim in August,
2003.
[4]
The
Applicant attacks that decision on two grounds. First it is said that the
Officer denied procedural fairness and erred in law by not convening an oral
hearing. Second, the Officer committed a reviewable error by failing to take
into consideration the documentary evidence and submissions of the Applicant
while selectively relying on country reports which provide evidence to the
contrary.
Analysis
[5]
On
the question of whether an oral hearing should have been directed, I believe
the standard of review should be correctness: either this involves a question
of law or a question of fairness and in either case, that should be the
standard of review. Having said that, I am satisfied that the Officer here made
no reviewable error.
[6]
The
Immigration and Refugee Protection Act provides as follows:
|
Consideration of
an application for protection shall be as follows:
…
(b) a hearing may be held if the Minister, on the basis
of prescribed factors, is of the opinion that a hearing is required;
|
Il est disposé de la demande comme il suit :
…
b) une audience peut être tenue si le
ministre l’estime requis compte tenu des facteurs réglementaires;
|
The “prescribed factors” are set out in Immigration
and Refugee Protection Regulations as follows:
|
167. 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.
|
167. Pour l’application de l’alinéa 113b) de la
Loi, les facteurs ci-après servent à décider si la tenue d’une audience est
requise :
a) l’existence d’éléments de preuve relatifs aux éléments
mentionnés aux articles 96 et 97 de la Loi qui soulèvent une question
importante en ce qui concerne la crédibilité du demandeur;
b) l’importance de ces éléments de preuve pour la prise de
la décision relative à la demande de protection;
c) la question de savoir si ces éléments de preuve, à
supposer qu’ils soient admis, justifieraient que soit accordée la protection.
|
It will be noted that essential to the factors
requiring a hearing is that there be an issue of the Applicant’s credibility.
[7]
It
is first important to recall what the purpose of such a determination by a PRAA
Officer is. It is well recognized that it is to assess risks that a person
could face if they were to be removed to their native country, in light of new
facts arising after the Board’s decision on the refugee claim. It is not
intended to be an appeal of the Board decision: Perez v. Canada (Minister of
Citizenship and Immigration), [2006] F.C.J. No. 1778; Kaybaki v. Canada
(Solicitor General of Canada), [2004] F.C.J.
No. 27; Raza v. Canada (Minister of Citizenship and Immigration), [2006]
F.C.J. No. 1779. As pointed out in Kaybaki, the evidence presented to
the Officer should be new evidence, and not evidence that should have been
presented to the Board. Its purpose is to assess new risk development arising
after the refugee hearing and it should not become a second refugee hearing. In
the present case the Officer was not considering whether the Board was wrong
and whether the Applicant should now be found to be credible. Instead, he had
to determine whether there had been new risks develop since August, 2003.
[8]
I
am satisfied that to accomplish this the Officer was not obliged to pass
further judgment on the credibility of the Applicant. Indeed to do so would
amount to an appeal from the Board on that point. In fact, the Applicant, in
her Memorandum of Fact and Law at para. 61, submits that the Officer made no
credibility findings and I believe that was the proper course for him to
follow. As a result there was no credibility issue before the Officer
compelling him to hold an oral hearing.
[9]
With
respect to whether the Officer committed a reviewable error in his conclusions
on the evidence, this involves questions of fact for which the standard of
review should be patent unreasonability. I find nothing patently unreasonable
in the conclusions the Officer reached on the evidence as indicated above. In
particular, I do not find in the voluminous documentary evidence proof on a balance
of probabilities that the Applicant will suffer persecution upon her return to China. The picture
is a mixed one and varies from one part of the country to another. We know not
what particular role the Applicant is determined to play in Chinese Christianity.
The Officer was certainly entitled to come to the conclusion which he did.
Disposition
[10]
I
will therefore dismiss the application for judicial review. While there was
some discussion with counsel about a certified question they agreed that none was
required and none will be certified.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1.
The
application for judicial review be dismissed.
“B.L. Strayer”
Deputy Judge
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