Date: 20080312
Docket: IMM-1220-07
Citation: 2008 FC 337
Ottawa, Ontario, March 12, 2008
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
DU BIN CEN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1] Du Bin Cen is
a citizen of the People's Republic of China (China) who arrived in Canada in
October of 1990.
[2] Mr.
Cen claimed protection as a Convention refugee because he said that he had
organized, and participated in, student protests held in China in the spring of
1989. He fled China because he feared arrest and imprisonment. In March of
1991, his claim for refugee protection was dismissed by the Convention Refugee
Determination Division of the Immigration Refugee Board (CRDD).
[3] In
February of 2007, Mr. Cen’s application for a pre-removal risk assessment
(PRRA) was refused. He brings this application for judicial review of that
decision.
[4] A
single issue is raised on this application: did the PRRA officer conduct a
sufficiently extensive risk assessment of whether Mr. Cen was a person in need
of protection within the meaning of section 97 of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (Act)? I find that the officer
adequately considered this risk and so the application for judicial review is
dismissed.
[5] Mr.
Cen's argument is premised upon the fact that his refugee claim was considered
in 1991, before the protection contained in section 97 of the Act was enacted.
As of 1991, the CRDD only assessed whether a claimant fell within the
definition of a Convention refugee (now encompassed by section 96 of the Act).
For ease of reference, sections 96 and 97 of the Act are set out in the
appendix to these reasons.
[6] To
properly assess this argument, consideration must be given to the nature of Mr.
Cen's claim before the CRDD and the risks he described in his PRRA application.
[7] Before
the CRDD, Mr. Cen described his involvement in organizing students in support
of the General Student Movement and his participation in demonstrations. He
said that he was suspended from work. Fearing arrest and imprisonment, he then
left China.
[8] In
rejecting his claim, the CRDD observed that letters from Mr. Cen's wife, who
remained in China, did not mention that the police were looking for him. The
CRDD doubted that he was suspended from his job. The CRDD's ultimate
conclusion was that there was no evidence that the penalties for those who
played a role as minor as Mr. Cen did amounted to persecution. There was no
serious possibility he "would actually suffer persecution, a severe
restriction of his rights or serious physical abuse."
[9] Mr.
Cen identified the same risk in his PRRA application. The only documentary
evidence he provided was an article from Wikipedia entitled "Tiananmen
Square protests of 1989". With respect to the current conditions in
China, the article noted that the "topic is still a political taboo in
mainland China, where any public discussion of it is regarded as inappropriate,"
and that Tiananmen Square is tightly patrolled on the anniversary of June 4th,
in order to prevent any commemoration of the events of 1989.
[10] The
PRRA officer expressly noted that he was required to assess Mr. Cen's risk
under section 97 of the Act. The officer wrote:
I have considered the evidence
provided by the applicant in order to determine under Section 96 of the
Immigration and Refugee Protection Act (IRPA) whether he has a well-founded
fear of persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion. I have also considered
Section 97(1)(a) and (b) of IRPA regarding whether the applicant is a
person in need of protection due to a danger of torture, or to a risk to his
life or a risk of cruel and unusual treatment or punishment. [emphasis added]
[11] While
the PRRA officer acknowledged that China’s human rights record remained poor,
the officer noted that Mr. Cen had not provided sufficient evidence, since the
rejection of his refugee claim, to convince the officer that he faced any of
the risks outlined in sections 96 and 97 of the Act:
I have reviewed the documentation
regarding the human rights situation in the People’s Republic of China.
Although the PRC’s human rights record is poor, the applicant has not provided
sufficient objective evidence since the rejection of his claim for protection
by the Convention Refugee Determination Division (CRDD), to lead me to come to
the conclusion that he personally faces any of the risks outlined in sections
96 and 97 of the IRPA.
[12] Specifically,
on the question of whether Mr. Cen fell within the meaning of section 96 of the
Act, the PRRA officer was not persuaded that Chinese authorities had a
continuing interest in Mr. Cen or that Mr. Cen had a well-founded fear of
persecution:
After a careful analysis of all
the evidence before me, I do not find any reason as to why the Chinese
authorities would continue to be interested in the applicant as the incident
which caused him to come to the attention of the authorities occurred almost
eighteen years ago. There is insufficient evidence before me to indicate that
the applicant has continued to be perceived by the Chinese authorities as a
political dissident. In the absence of any new persuasive evidence from the applicant,
the country documents lead me to conclude that the applicant in this particular
case does not face more than a mere possibility of persecution for any of the
Convention grounds in the People’s Republic of China. This application does
not meet the requirements of Section 96 of the Immigration and Refugee
Protection Act.
[13] As
to whether Mr. Cen fell within section 97 of the Act, the PRRA officer again
found that there was insufficient evidence to make such a finding:
The evidence was also carefully
assessed in considering the application of Section 97 of the Immigration and
Refugee Protection Act. I find that there is insufficient evidence to conclude
that the applicant, if returned to the People’s Republic of China, would be
subjected to a danger, believed on substantial grounds to exist, of torture
within the meaning of Article 1 of the Convention Against Torture.
Furthermore, I find that it is
unlikely that the applicant would be subjected personally to a risk to his life
or to a risk of cruel and unusual treatment or punishment upon return to the
People’s Republic of China. As a result, this application for protection does
not meet the requirements of subparagraph 97(1)(b)(i) of the Immigration and
Refugee Protection Act.
[14] Mr.
Cen's claim to risk was based solely upon a Convention ground: his political
opinion. This risk was fully assessed by the CRDD and no new evidence of risk
developments, relevant to either section 96 or 97 of the Act, was put forward
by Mr. Cen.
[15] On
that factual basis, I find the officer's section 97 analysis to be both
adequate and reasonable. I note that similar conclusions have been reached,
albeit in the refugee protection context, in cases such as Kulendrarajah v.
Canada (Minister of Citizenship and Immigration) (2004), 245 F.T.R. 145 at
paragraph 13 and Brovina v. Canada (Minister of Citizenship
and Immigration), [2004] F.C.J. No. 771 (QL) at paragraphs 17 and 18.
[16] For
these reasons, the application for judicial review is dismissed.
[17] Counsel
posed no question for certification if the application was decided on this
basis; therefore, no question is certified.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. The application for judicial review is dismissed.
“Eleanor R. Dawson”
APPENDIX
Sections
96 and 97 of the Act read as follows:
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96. A Convention refugee is a person who, by reason of a
well-founded fear of persecution for reasons of race, religion, nationality,
membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and
is unable or, by reason of that fear, unwilling to avail themself of the
protection of each of those countries; or
(b) not having a country of nationality, is outside the
country of their former habitual residence and is unable or, by reason of
that fear, unwilling to return to that country.
97(1) A person in need of
protection is a person in Canada whose removal to their country or countries
of nationality or, if they do not have a country of nationality, their
country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist,
of torture within the meaning of Article 1 of the Convention Against Torture;
or
(b) to a risk to their life or to a risk of cruel and
unusual treatment or punishment if
(i) the person is unable or, because of that risk,
unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part
of that country and is not faced generally by other individuals in or from
that country,
(iii) the risk is not inherent or incidental to lawful
sanctions, unless imposed in disregard of accepted international standards,
and
(iv) the risk is not caused by the inability of that
country to provide adequate health or medical care.
(2) A person in Canada who is a member of a class of
persons prescribed by the regulations as being in need of protection is also
a person in need of protection.
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96. A qualité de réfugié au sens de la Convention
— le réfugié — la personne qui, craignant avec raison d’être persécutée du
fait de sa race, de sa religion, de sa nationalité, de son appartenance à un
groupe social ou de ses opinions politiques :
a) soit se trouve hors de tout pays dont
elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se
réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de nationalité et se trouve hors
du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait
de cette crainte, ne veut y retourner.
97(1) A qualité de personne à protéger la
personne qui se trouve au Canada et serait personnellement, par son renvoi
vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité,
dans lequel elle avait sa résidence habituelle, exposée :
a) soit au risque, s’il y a des motifs
sérieux de le croire, d’être soumise à la torture au sens de l’article
premier de la Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements
ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la
protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que
d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont
généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions
légitimes — sauf celles infligées au mépris des normes internationales — et
inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de l’incapacité
du pays de fournir des soins médicaux ou de santé adéquats.
(2) A également qualité de personne à
protéger la personne qui se trouve au Canada et fait partie d’une catégorie
de personnes auxquelles est reconnu par règlement le besoin de protection.
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