Date: 20080417
Docket: IMM-3387-07
Citation: 2008
FC 501
Ottawa, Ontario, April 17, 2008
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
C.D.
Applicant
and
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The applicant seeks the judicial
review of a Pre-Removal Risk Assessment (PRRA) decision dated July 10, 2007,
where in the PRRA officer found that he was neither a Convention refugee nor a
person in need of protection pursuant to sections 96 and 97 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). This
application for judicial review is dismissed for the reasons which follow.
I. Facts
[2]
The applicant is a 63 year old
citizen of China. He claims to fear persecution at the hands of the
Chinese authorities for his practice of Falun Gong, and also that he is afraid
of a Public Security Bureau (PSB) officer who had an affair with his wife.
[3]
In 1994, the applicant discovered
that his wife was having an affair with a local government official. When he
caught them together in his house, a violent confrontation occurred and the
applicant was beaten and tied up for two to three days. He then complained to
the police but nothing was done as the local authorities refused to act and the
central authorities considered the matter to be local.
[4]
Although his wife’s affair with
the PSB officer ended, the applicant said that the harassment continued. In
1995, the applicant was allegedly framed by the PSB officer. He was arrested
and detained for 15 days on charges of stealing a bicycle. After his release,
he had to report weekly to the authorities.
[5]
As a result of this harassment,
the applicant left his hometown and went into hiding in Tientsin and later, in Guangzhou.
However, a year and a half later, the authorities discovered his location and
returned him to his hometown where the PSB officer started again to harass the
applicant.
[6]
In 1998, the applicant began to
practice Falun Gong, before the movement was banned by the Chinese government. Shortly
thereafter the authorities began to crack down on Falun Gong; the applicant
became afraid of persecution even though Falun Gong was not banned by the
government until after he left China in 1999.
[7]
In January 1999, he fled to Canada and applied
for refugee protection a year later. He left China supposedly for the purpose
of a business trip in Canada. His claim, based on his fear of persecution as a
Falun Gong member and as a target of a PSB officer, was rejected by the
Convention Refugee Determination Division (CRDD) on January 16, 2001, mainly on
credibility concerns.
[8]
The applicant applied for a
Post-Determination Refugee Claimants in Canada assessment; his application was converted to a PRRA
upon the implementation of the IRPA in June 2002. He also asked for
permanent residence based on humanitarian and compassionate grounds (H&C).
[9]
On September 16, 2005, the
applicant alleged that he participated in a protest against the Chinese
President Hu Jintao where Chinese spies took photographs of him.
[10]
On July 10, 2007, both his PRRA
and H&C applications were rejected and the applicant filed an application
for judicial review before the Federal Court regarding the negative conclusion
on the PRRA.
II. Impugned decision
[11]
The PRRA officer concluded that
there was no more than a mere possibility of the applicant being targeted by
the PSB officer in the event of a return to China. He could not see why the
PSB officer would still have an interest in harassing the applicant. In the
last nine years, the applicant had not received any communication from the PSB
officer, who thus does not appear to have a continued interest in him.
[12]
The PRRA officer noted that ten
years have elapsed since the bicycle incident and the authorities do not seem
to have any interest in the applicant anymore. The PRRA officer pointed to the
fact that the applicant had not provided any proof that he had been sought by
the authorities after he left the country. In any event, he concluded that the
applicant’s punishment, after his detention for 15 days, was to report weekly
which does not amount to persecution.
[13]
While the PRRA officer
acknowledged that Falun Gong practitioners were persecuted by the Chinese
government, he did not believe that spies could have identified the applicant
as a practitioner. He could not agree with the applicant that Chinese spies are
interested in Falun Gong members since documentary evidence shows that they
mainly focus on industrial espionage. The PRRA officer found that it was highly
speculative as the applicant never proved that he has been followed, pursued or
harassed by Chinese spies in Canada.
[14]
Except for the applicant’s written
submissions describing his activism in Canada related to Falun Gong, the PRRA officer noted that
there were few documents to corroborate the applicant’s involvement in Falun
Gong.
[15]
Regarding the applicant’s
participation in the protest against the Chinese President, the PRRA officer
found speculative, as based on hearsay, the fact that Chinese spies would have
taken a photograph of him. Even if a picture was actually taken, he concluded
the applicant did not prove that his identity or his relationship to Falun Gong
was known by the Chinese authorities.
[16]
The PRRA officer noted that the
applicant only provided evidence of activism with Falun Gong in May 2006.
Little or no probative value was given to this evidence: some documents were
not translated; one was an anonymously published, general, unnamed and undated
“pamphlet”; the photos listed were not actually provided; and the cheque was irrelevant.
The PRRA officer also gave little weight to a letter written by Sue Zhang,
whose identity and role is uncorroborated, as it was handwritten without a
letterhead and has no security features. In any event, he found that the letter
merely corroborated the applicant’s participation in the protest against the
Chinese President without any reference to possible danger as a result of his
identification by the Chinese government.
[17]
The PRRA officer concluded that
the applicant is not a Falun Gong practitioner with a profile that would bring
him to the attention of the Chinese authorities; he practices Falun Gong
publicly in Canada by distributing pamphlets and by participating to the
September 2005 protest, but the Chinese authorities is not aware of his
involvement.
[18]
Furthermore, the PRRA officer noted
that the applicant, practicing Falun Gong only for health benefits without any
political belief, would not be unable or unwilling to practice privately in China.
Therefore, his level of involvement would not bring him to the attention of the
Chinese authorities if he were to return to China.
[19]
The PRRA officer considered that
the applicant’s contention regarding his fear of persecution based on his
illegal departure from China and his refugee claim in Canada was not
supported by the documentary evidence. As the applicant had travelled on a valid Chinese passport and had not taken any improper measures when
he proceeded to exit control at the Chinese airport, the PRRA officer found
this fear unjustified. Furthermore, he noted that few documents report
punishment of returned migrants. It happens notably when the migrant does not
have the required documents to leave and the punishment only amounts to
relatively small fines and/or a few days of detention. The PRRA officer did not
consider that the applicant’s exit from the country and his subsequent refugee
claim would lead to a serious possibility of harm.
[20]
As the applicant did not provide
the PRRA officer with psychological evidence, he concluded that it was
speculative to contend that the applicant’s return to China would
cause him psychological and/or emotional damage. The applicant’s unwillingness
to return in his country does not fall within the definitions of sections 96
and 97 of the IRPA. The PRRA officer believed that the applicant’s
subjective fear was not objectively well-founded.
III. Issues
[21]
The
applicant contends that the PRRA officer erred in the assessment of his application
and that he failed to properly analyse the risk. He believes that he was
entitled to an oral hearing and thus, that the PRRA officer breached the
requirements of procedural fairness in refusing to allow him an interview.
Finally, the applicant submits that the Court should consider extrinsic
evidence that was not before the PRRA officer when he rendered his negative
decision.
IV. Analysis
1) What is the appropriate
standard of review?
[22]
A PRRA officer’s
decision considered globally and as a whole is generally assessed on a standard
of reasonableness simpliciter as determined in Figurado v. Canada
(Solicitor General), 2005 FC 713. The Court has also concluded that each
particular finding must be reviewed to determine whether it raises questions of
fact, of mixed fact and law or of law: see Kim v. Canada (Minister of Citizenship and Immigration), 2005 FC 437. The parties agreed at the
hearing on the application of the reasonableness simpliciter standard.
[23]
After the hearing but
before these reasons were issued, the Supreme Court handed down its decision in
Dunsmuir v. New
Brunswick, 2008 SCC
9. As a result of that decision, the previous reasonableness standards have
been merged into one. In doing so, the Supreme Court held that “deference
requires respect for the legislative choices to leave some matters in the hands
of administrative decision makers, for the processes and determinations that
draw on particular expertise and experiences, and for the different roles of
the courts and administrative bodies within the Canadian constitutional system”
(at para. 49). Consequently, the Court will only intervene to review the PRRA
officer’s decision where the decision would not fall within the possible and
acceptable conclusions defensible on the facts and law (at para. 47).
[24]
The Dunsmuir decision does
not have an impact on questions of procedural fairness. In Demirovic v.
Canada (Minister of Citizenship and Immigration), 2005 FC 1284, Justice Eleanor
R. Dawson determined that the standard of review with respect to section 167 of
the Immigration and Refugee Protection Regulations, SOR/2002-227 (IRPR)
is correctness. I agree with her assessment, and would therefore apply this
standard for the matters relating to the oral hearing.
2) Did the PRRA officer fail
to properly assess the risk?
[25]
The applicant criticizes the PRRA
officer for the fact that he based his decision mainly on the CRDD decision.
Therefore, he believes that the PRRA officer failed to properly assess the
risk.
[26]
The purpose of the PRRA is to give
failed refugee claimants a process which assesses whether country conditions or/and
personal circumstances have changed since the issuance of the refugee decision:
see Cupid v. Canada (Minister of Citizenship and Immigration), 2007 FC 176 [Cupid] at para. 4. When an
applicant fails to prove such a change, the PRRA officer is entitled to rely on
an unchallenged decision of the Refugee Board: see Cupid, above at
para. 21.
[27]
In the case at bar, I do not
believe that the PRRA officer erred in relying on the CRDD decision. The CRDD
rejected the applicant’s asylum request, basing itself mainly on credibility
concerns. It concluded that there was insufficient credible evidence “to show
there was more than a mere possibility that he would be persecuted by a
vengeful official or anyone else for practicing Falun Gong. Even if he is a
practitioner of Falun Gong, should he practice in private, as he claims to be
doing in Canada, he should not face difficulties”.
[28]
The applicant submitted written
representations in 2001, 2002, 2005, 2006 and 2007. The applicant’s reasons to
apply for a PRRA are essentially the same as his reasons for seeking refugee
protection: he would be persecuted by a PSB official and by the Chinese
authorities as he is a Falun Gong practitioner. However, in his 2005 submissions,
he focused on his involvement in a protest against the Chinese President where
spies allegedly took pictures of him; he did not provide any additional
documentary corroboration. Then in his 2006 representations, the applicant
provided documentation stating that he had become an active practitioner: pages
referred as “study material”, a pamphlet, photos, a letter signed by Sue Zhang
and a cheque.
[29]
The applicant contends that Ms.
Sue Zhang’s letter confirmed his participation in the protest and thus, the
PRRA officer erred when he stated that there was no corroborating evidence
regarding his participation in Falun Gong. The PRRA officer concluded the
following regarding this letter:
More specific to the applicant
are a letter signed by a Sue Zhang and a cheque made out from the applicant to
a Xiao Weng Shang. However, I give these two documents very little weight. The
letter is handwritten, has no security features or letterhead, and its author’s
identity and role in the Falun Gong movement are uncorroborated (though I note
a person of the same name quoted in the “pamphlet”). More importantly, the
letter says very little about the applicant: only that he “participated” (it
doesn’t describe how) in the anti-Hu protest, and that his participation and
support are appreciated. The letter does not confirm the applicant as Falun
Gong practitioner or that he has been involved in any other way with Falun Gong
in Canada. More importantly, it does not mention problems at the demonstration
such as surveillance or interference, or indicate any concern that the
applicant would have been identified as a Falun Gong practitioner or would be
in danger in any way. Therefore, I find that the letter does very little to
indicate that the applicant would be at risk in China.
[30]
The letter effectively does not
prove anything except that the applicant did participate in the protest against
the Chinese President. In any event, I believe that the PRRA officer accepted
that the applicant participated in the protest but he did not believe that he
had a profile that would bring him to the attention of the Chinese authorities.
He also concluded that, even if he was practicing publicly in Canada, the
Chinese authorities do not know his identity. Therefore, I do not think that
the PRRA officer disregarded Sue Zhang’s letter.
[31]
In the applicant’s view, the PRRA
officer applied a “beyond a reasonable doubt” standard of proof. I do not agree
with the applicant; I believe that the PRRA officer applied the correct
standard when he required proof on a balance of probabilities.
[32]
The PRRA officer concluded that
the evidence does not indicate that spies are effectively targeting Falun Gong
practitioners. The applicant argues that independent documentary evidence
supports the fact that he has been photographed by Chinese spies. In his
reasons, the PRRA officer held the following:
The applicant’s counsel in
September 2005 and May 2006 made written submissions arguing that Chinese spies
report on Falun Gong practitioners in Canada, arguing that this puts the
applicant at risk. For corroboration, counsel refers to news reports that were
not provided for my consideration – as well as quoting from a “pamphlet” to
which, for reasons described below, I do not assign much weight. I acknowledge
independent, objective news reports about Chinese spies in Canada (such as in
those listed in section 9 below). That such spies target the Falun Gong
movement in Canada is an allegation from Chinese defectors whose statements
have not been officially corroborated and are potentially self-serving for
their own asylum bids; a Canadian source quoted indicates that the spies’
efforts focus rather on industrial espionage. Specifically, any focus of such
spies on learning the identities of Falun Gong practitioners is not
well-supported in the evidence I have examined, and, with respect to any risk
to this individual applicant, is highly speculative. The applicant’s evidence
does not indicate that he has personally been followed, pursued or harassed by
Chinese agents in Canada.
[33]
The CTV news report, “Chinese
spies cost Canada billions: Harper”, and the CBC news report,
“Defectors say Chinese running 1 000 spies in Canada”, are effectively based on
Chinese defectors’ allegations that were not corroborated by any objective
evidence. The only corroboration has come from a former Canadian Security
Intelligence Service (CSIS) agent who confirmed that there is Chinese
industrial espionage. He said that the spies were not Chinese trained spies but
paid informants. The former CSIS agent then stated that there was “evidence to
prove that Chinese intelligence agents use illegal methods to spy on and
disrupt the Falun Gong” (see CBC news report). Notwithstanding these
submissions, the evidence referred to by the former CSIS agent has not been
produced by the applicant and there is no objective evidence whatsoever
confirming his submissions on this matter. Therefore, I do not believe that it
was unreasonable to conclude that these reports are not reliable evidence.
[34]
Regarding the applicant’s
allegation that someone took his picture at a protest, the PRRA officer
concluded that it was speculative hearsay. I agree with this finding as it is
only submitted in the applicant’s PRRA representations where he stated that
someone told him that a woman took photos of him. The person who informed him
of this never corroborated the allegation and therefore, the conclusion drawn
by the PRRA officer was open to him.
[35]
In his reasons the PRRA officer also held that “even if
it was Chinese agents who took his picture, the applicant has not provided
evidence that would indicate on a balance of probability, that his identity as
a Falun Gong practitioner or supporter is known to Chinese authorities”. The
applicant asserts that, in light of current security issues in China and the
fact that most buildings have security cameras, it would be naïve to think that
Chinese authorities can not identify him. Here again, there is no objective
evidence to corroborate this assertion or to prove that Chinese authorities are
interested in him. Consequently, I agree with the PRRA officer’s findings on
this matter.
3) Was the applicant entitled
to an oral hearing?
[36]
Section 167 of the IRPR sets
out the factors to be taken into consideration in order to determine whether an
applicant is entitled to an oral hearing:
|
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
|
[37]
The applicant believes he was
entitled to an oral hearing as the outcome of the PRRA is critically important
to him. The respondent argues that the applicant did not demonstrate that his
evidence raised a serious issue regarding credibility.
[38]
The refusal of the PRRA is of
considerable importance for the applicant; however, the absence of a hearing
does not automatically amount to a violation of fundamental justice: see Younis
v. Canada (Solicitor General), 2004 FC 266.
[39]
I agree with the respondent as I
cannot find any credibility concerns on the part of the PRRA officer. The
applicant was given the chance to submit written representations and evidence;
the PRRA officer found that there was insufficient evidence to establish on a
balance of probability that the applicant would be at risk in China. I do not
think that the PRRA officer breached procedural fairness when he did not
provide the applicant with an oral hearing.
4)
Should
the Court consider extrinsic evidence that was not before the PRRA officer?
[40]
The applicant believes that the
Court should consider his Exhibit E (a document that he allegedly gave to the
immigration officer and the Chinese official during an interview) in its assessment.
He contends that it shows Chinese authorities are aware of his activities.
However, this exhibit was not before the PRRA officer when he assessed the
applicant’s request.
[41]
If an applicant believes that the evidence not submitted to the
original decision-maker nevertheless needs to be considered by the Court, he
has to demonstrate that the evidence is needed to resolve issues of procedural
fairness or jurisdiction or that there are very exceptional circumstances to
justify an exception to the general principle: see Omar v. Canada
(Solicitor General), 2004 FC 1740 [Omar]. In Alabadleh v. Canada
(Minister of Citizenship and Immigration), 2006 FC 716, Justice Mosley
found that the decision Omar was not “intended to expand the category of
exceptions to the general principle that fresh evidence is not admissible on
judicial review” even if he admitted that “there may be circumstances in which the interests of justice
require that evidence that was not before the decision-maker be admitted and
considered”.
[42]
The applicant relies on Omar to submit that his case
presents exceptional circumstances as he asserts that the new evidence shows
that Chinese authorities are aware of his activities with Falun Gong in Canada
and that he had made a refugee claim, which would likely lead to his
persecution if he were to return to his country. I believe that the decision Omar
has to be distinguished from the present case; the Court in Omar
admitted new evidence, exhibits supported by affidavits, establishing that Mr.
Omar would be persecuted and at risk in the event of a return in China.
[43]
Here, the applicant includes only a piece of paper containing
Chinese characters with an uncertified translation in English. The document is
also undated and self-serving. The respondent submits that the document by itself
is insufficient evidence that the Chinese government is aware of the
applicant’s implication with Falun Gong or that he faces a new risk of
persecution. Furthermore, the respondent argues that there is no evidence that
the Chinese government had contacted the applicant in Canada or had taken any
interest in him. I agree with the respondent and I do not think that there are
exceptional circumstances justifying an exception to the general principle of
exclusion.
[44]
For these reasons I would therefore dismiss this application for
judicial review.
[45]
The PRRA officer concluded that the Chinese authorities are not
aware of the applicant’s involvement with Falun Gong. To prevent a risk for the
applicant when he returned, I suggested an amendment to the style of cause to
the parties. When the respondent took no position on the subject, the applicant
fully endorsed the idea. Therefore, I believe that the applicant’s name should
be deleted from the style of cause out of caution.
[46]
The applicant proposed the following question for certification:
In circumstances where a PRRA decision has been
rendered and an immigration officer knows that an applicant has confirmed his
activities with the authorities, when there are credible reports that
persecution and torture prevails in the country where the applicant is to be
removed, is there a duty on the immigration officer to refer the matter back to
the PRRA officer for re-assessment taking in account the new evidence /
circumstances? If so, under what circumstances?
[47]
I do not believe that this is a serious question of general
importance which would be dispositive of an appeal and, as a consequence, I
will not certify the applicant’s proposed question.
JUDGMENT
THIS COURT ORDERS that
1. the application for
judicial review is rejected.
2. the name of the applicant
is deleted from the style of cause and replaced with the initials C.D.
"Yves
de Montigny"
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