Date: 20081003
Docket: IMM-445-08
Citation: 2008 FC 1109
Ottawa, Ontario, October 3, 2008
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
GIN
LIN PUR
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION and
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Like
Saul on the road to Damascus, the Applicant saw the light and acknowledged
that her previous story of her activities in China was just
that – a story. Is the Minister correct that her confession came too late?
BACKGROUND
[2]
Gin
Lin Pur is a 44 year old Chinese national. She came to Canada in 1999 and
sought refugee protection shortly thereafter. Her claim was based on religious
persecution on account of her membership in an underground church, and her
opposition to China’s one-child
policy. Her application for Convention refugee status was refused on the basis
that she was excluded from protection owing to her involvement in enforcing the
one-child policy. She has nonetheless remained in Canada with no
status for the past eight and a half years. She was married to a Mr. Raymond
Ho, a permanent resident, in December of 2007.
[3]
In
June of 2003, Gin Lin Pur applied for permanent residence from within Canada on
humanitarian and compassionate grounds, which application was updated in
September of 2007 by her former counsel. The covering letter to this update
emphasizes that Gin Lin Pur is learning English, is gainfully employed, and
attends church, while reiterating that she would face a risk of persecution for
the reasons invoked in her failed refugee claim, were she to be returned to China.
[4]
The
PRRA officer assigned to the case wrote a detailed case history, dated December
10, 2007, describing Gin Lin Pur’s degree of establishment in Canada and the
alleged risk she would face in China. As to the former, while acknowledging
that she has established herself, the officer found that this establishment was
only to a level that would be naturally expected, and that the disruption of
employment and community ties in Canada entailed by her return
to China cannot alone
be considered to amount to unusual or disproportionate hardship.
[5]
With
respect to the alleged risks Gin Lin Pur faces in China, the officer reviewed
the documentation she had submitted in connection with her pre-removal risk
assessment regarding persecution on religious grounds (as she had not submitted
anything on this topic in the H&C application itself), as well as internal
reports. Noting that the reports attest to a wide variance in religious
freedom in different parts of China and the absence of any accounts of
persecution or repression on the Applicant’s native province of Guangdong, as
well as indications that it is underground church leaders as opposed to the
laity that are chiefly at risk, the officer determined that Gin Lin Pur would
not likely face a risk of detention or imprisonment were she to be deported to
China.
[6]
With
respect to the allegation that Gin Lin Pur would face a risk in connection with
her refusal to participate in the implementation of the one-child policy, the
officer reviewed a 1996 Amnesty International document submitted by the
Applicant (Women in China: Detained, Victimized, Mobilized), as well as
more recent evidence, and concluded that at this point in time, while
government officials who do not strictly enforce the one-child policy may
expose themselves to administrative sanctions and disciplinary measures, they
are not “targeted by the authorities” per se.
[7]
The
officer determined that the Applicant’s circumstances were not such that the
hardships she would face by having to apply for permanent residency from
outside Canada would be unusual, undeserved, or disproportionate, and
accordingly, declined to grant an exemption to allow her to make an in-country
application. The decision letter is dated December 10, 2007.
[8]
Gin
Lin Pur was advised that a decision had been rendered on her application for
protection by letter dated December 24, 2007, and was instructed to attend at
the Greater Toronto Enforcement Centre on January 14, 2008, to receive the
decision.
[9]
On
January 8, 2008, Gin Lin Pur filed further submissions through a new lawyer
claiming that the previous submissions contained “serious and multiple errors”
and asking that they be disregarded. The new submissions disavow the previous
story, and claimed that her account of involvement in the administration of China’s one-child
policy was a fabrication. This aspect of her story was allegedly concocted by
an immigration consultant. As it turned out, the story backfired when Ms. Pur
was excluded on this very basis.
[10]
A
further letter requesting that Gin Lin Pur’s H&C application be re-opened
was sent by counsel on January 24, 2008.
ISSUES
[11]
The
Applicant raises three issues:
(a) Whether the officer breached the duty of
fairness by failing to consider the information provided in the submissions of
January 8, 2008;
(b) Whether the officer failed to conduct a
proper hardship assessment; and
(c) Whether the officer ignored evidence,
insofar as the documentation canvassed does not support a conclusion that risks
of persecution on account of religious observance are limited to religious
leaders.
ANALYSIS
Did the officer err in failing to consider January 8,
2008 submissions?
[12]
On
December 24, 2007, the Applicant was sent a “call-in notice”. The letter – a
form letter – reads: “This is to advise you that a decision has been rendered
with respect to your application to the Minister for protection … to receive
this decision you are required to attend in person as indicated below…”. At
that time the Applicant had two applications pending – an H&C application
and a PRRA application.
[13]
Both
parties rely on the decision in Chudal
v. Canada (Minister of Citizenship and
Immigration), 2005 FC 1073. In Chudal the applicant completed and submitted his PRRA
application. He submitted further documents in August, September and on
October 8, 2004. On October 15, 2004, the Applicant received notice by
facsimile that her application was refused on September 23, 2004, and the further
documents sent on October 8, 2004, were not considered. Actual reasons for
refusal were not received by the applicant until November 10, 2004. The Court quashed
the PRRA decision on the basis that there was a breach of procedural fairness
by the PRRA officer not receiving and considering the further submissions. Justice
Hughes held that the decision was not made until it had been written and signed
and notice of the decision, even if not its contents, had been delivered to the
Applicant. Accordingly, the decision was made as of October 15, 2004, the date
that its existence was communicated to the Applicant by facsimile.
[14]
The
Respondent submits that in
this case, notice was communicated by letter dated December 24, 2007, which
would have been received prior to January 8, 2008. It is submitted that the
officer was functus at this point and could not consider the evidence
forwarded under cover of January 8, 2008.
[15]
The
Applicant submits that the Respondent may be correct insofar as the H&C
application is concerned but not insofar as the PRRA application is concerned.
The Applicant places great emphasis on the precise wording of the call-in
letter: specifically its reference to a decision on the “application for
protection” and use of the word “decision”, in the singular.
[16]
Unlike
the applicant in Chudal, Ms. Pur was provided with notification that a
decision had been reached well prior to submitting her recantation of many of
the material facts in January through new counsel. In my view, the call-in
letter ought not to be read in the strict manner advocated by Applicant’s
counsel. In this case the Applicant was aware that both the H&C and the
PRRA applications were being dealt with by the same officer. Both decisions
bear the same December date. As was noted by Justice Hughes “in the case of a
PRRA Officer’s decision, the procedure is less formal than that of the Refugee
Board”. Just as some latitude was granted when the Court held that a decision
is not made until it is written, signed and notice provided to the applicant, I
am of the view that the PRRA officer is also entitled to some latitude in the
wording of the notification. I find that the letter dated December 24, 2007,
provided the Applicant with notice of both the H&C and the PRRA decision
and that the submissions filed in January 2008, recanting the story she had
advanced for many years, did not need to be considered by the PRRA officer.
Did the officer fail to conduct a proper hardship
assessment?
[17]
The
Applicant submits that the officer failed to conduct a proper hardship
assessment; the officer is alleged to have applied “PRRA standards to H&C
considerations” by focusing on risk of persecution rather than hardship in a
broader sense. This is said to go against the position expressed in Pinter v. Canada (Minister of Citizenship and Immigration), 2005 FC 296,
to the effect that the assessment of risk in an H&C application will not
necessarily be coextensive with the assessment of risk in a pre-removal risk
assessment.
[18]
I
cannot agree with that submission. First, the officer makes a statement that “[i]n this
application, I will consider the applicant’s risk allegation in the broader
context of their degree of hardship.” More importantly, the decision read as a
whole indicates that the officer does indeed look at the broader context.
Lastly, the facts at hand are substantially different than those in Pinter
where the officer said that she did not need to deal with the risk factors as
they had been dealt with by the PRRA officer, thus making it certain that
the same test was applied to both.
Did the officer ignore evidence?
[19]
The principle submission of the Applicant was
that the officer erred in
stating that the extent of religious freedom varies in China and that the
reports “do not indicate that Guangdong (Zengcheng city of Guangdong), the province from which the applicant is from, has
experienced religious abuses…” The Applicant points to a passage on one page
of the hundreds submitted on country conditions where reference is made to two
unregistered priests being detained in Shenzhen upon their return from Europe.
The Applicant points out that this is in the Applicant’s province and thus
asserts that the officer was in error in asserting that that area has not
experienced religious abuses. The report referenced by the Applicant actually
goes on to indicate that these two priests were detained and later imprisoned
for 9 and 11 month sentences for reportedly falsifying documents to facilitate
travel to Rome. In my view, imprisonment for falsification of travel documents
is not religious persecution. Further, even if it were, these were religious
leasders, not merely religious believers such as the Applicant. In my view,
even if this submission had merit, it would not have resulted in a different
decision and it is not a sufficient basis to make a finding of
unreasonableness.
[20]
For all of these
reasons, this application is dismissed.
[21]
It
was proposed that a question be certified as to whether the notice to the Applicant
was sufficient to constitute notice of both the H&C and the PRRA decision.
In my view, that is not a serious question of general importance. No question
will be certified.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1. This application for judicial
review is dismissed; and
2. No
question is certified.
“Russel W. Zinn”
Email this Content