Date:
20130110
Docket:
IMM-1830-12
Citation:
2013 FC 20
Ottawa, Ontario, January 10, 2013
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
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LIYUN YANG
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
decision, which disposes of an application for judicial review of a negative
exemption ruling, is related to and was heard with the application in Court
File IMM-1829-12, concerning the judicial review of a pre-removal risk assessment.
Both applications are brought under section 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 [IRPA]. The application for an
exemption on humanitarian and compassionate grounds was made in June 2009 and
the request for a pre-removal risk assessment was submitted in January 2011.
Both were decided by the same immigration officer on December 13, 2011. The
factual background relating to the applicant and conditions in her country of
origin, China, are identical to both applications and will be addressed in
these reasons. A separate order will issue to dispose of the application in
file IMM-1829-12.
BACKGROUND:
[2]
The
applicant was born in Guangdong, China, in October 1971. In 1993, when she was
22, she went to Guyana, where she met her husband, also a Chinese national. They
had two sons, born in 1994 and 1996, who were eventually sent back to China to live with her in-laws and pursue their studies. Ten years of residence were
required for Ms. Yang to qualify for Guyanese citizenship. After seven years,
in 2000, she became ill, abandoned her residency status in Guyana and returned to China for treatment. She was followed a few months later by her husband, who
was also ill. Her husband was diagnosed with AIDS and died soon thereafter. The
applicant then discovered that she was HIV positive.
[3]
The
applicant sought protection in Canada in December 2004 claiming, on the advice
of an immigration consultant, that she was fleeing persecution related to
membership in Falun Dafa. In this version of events, she had divorced in 2003,
was left to care for her two sons, and became depressed. To overcome
depression, she began practicing Falun Gong and joined an underground Falun
Dafa group. Following the arrest of a friend who had introduced her to Falun
Dafa, she went into hiding and made arrangements to come to Canada. This story was presented to the Refugee Protection Division of the Immigration and Refugee
Protection Board and found to be not credible in 2006. An application to reopen
on the ground of procedural unfairness due to the order of questioning at the
hearing was dismissed in 2007.
[4]
The
application for an exemption from the selection criteria on humanitarian and
compassionate (“H&C”) grounds, in June 2009, was supported by submissions
that the reason the applicant chose to mislead the Board in presenting her
claim for protection was that she was too ashamed to disclose and rely upon her
HIV status. Further, it was submitted that if she returns to China she would
not have access to life-saving treatment, or indeed any treatment as she has
lost her hukou (household registration), that she and her children will
be discriminated against in China by reason of her HIV status, and that she
will no longer be able to work at assisting others living with HIV/AIDS as she
has been doing in Canada.
DECISION UNDER REVIEW:
[5]
The
officer reviewed the factors concerning the applicant’s establishment in Canada: support from and volunteer work at Asian Community Aids Services; membership in the Toronto Chinese Disciples Church; internet training and an oral English program; and close
friendships with Canadians in the Chinese community. The officer found that the
applicant did not demonstrate that she had entered the Canadian work force or
become financially self-sufficient. Nor had she indicated in her application
that she read, wrote, or spoke English. She was unemployed and on social
assistance from her arrival in Canada to about 2010, when she began working in
a factory.
[6]
The
officer noted that there are no language barriers or other significant
obstacles to the applicant’s re-employment in China. It would not be
unreasonable for her to return; there would be a period of re-adjustment, but
her mother and sons could provide her with support. The officer acknowledged
that many HIV-positive people in China experience unfair or unjust treatment,
and that privacy safeguards are inadequate in some regions.
[7]
Concerning
the best interests of the applicant’s children, the officer noted that they are
in the care of their maternal grandmother in China, where they are shielded
from the stigma and discrimination which come from having a family member with
HIV.
[8]
Regarding
the question of risk to the applicant should she return to China, the officer reviewed the general conditions in that country and assessed these against the
applicant’s personal profile. He found that China is an authoritarian state
with a poor human rights record, and that many HIV-positive persons experience
prejudice, discrimination, and stigmatization. However, in March 2006 China had enacted Regulations on AIDS Prevention and Treatment which provided
fundamental rights to people living with HIV/AIDS. In 2008, China revised the criterion for initiating antiretroviral treatment, increasing the number of people
receiving treatment. Coverage then continued to increase steadily, with
positive effects, according to the sources relied upon by the officer. Moreover,
China continued to improve and strengthen its government response mechanisms
to HIV/AIDS. By 2010, this included implementing the “Four Frees, One Care”
policy which provided four basic means of access to free treatment, as well as
subsidies.
[9]
The
officer notes that as a prerequisite for benefiting from “Four Frees and One
Care”, a person must have a household or city registration permit. The
applicant declares that her hukou is no longer valid as she had been out
of China for over ten years and therefore that she would not have access to
treatment. The officer found, however, that the applicant had not provided
sufficient evidence for him to conclude that her hukou had been
cancelled. Further, as she had returned to China for treatment after living in Guyana for seven years, she had not demonstrated that she would now be refused treatment.
[10]
The
officer devoted several paragraphs to discussion of a Xinhua news agency
article from an on-line source (“Xinhuanet”) that reported pledges by the
Chinese Premier to bring in further measures to help those living with
HIV/AIDS. This article was published on December 2, 2011, eleven days before
the H&C decision was made.
[11]
The
officer determined that the factors favouring the application did not justify
an exemption. Stating that he had considered the application, the submissions,
the facts on file, and objective documentation on country conditions in China, he concluded that the difficulties mentioned would not constitute unusual,
undeserved, or disproportionate hardship warranting an exemption.
ISSUES:
[12]
The
issues arising in this matter from the parties’ submissions are as follows:
- Did the officer fail to
observe procedural fairness by relying on extrinsic evidence without
providing the applicant with an opportunity to respond?
- Did the officer err by
applying the wrong test for H&C?
- Did the officer make an
unreasonable decision by;
- Misconstruing evidence,
ignoring evidence, or basing his decision on a selective analysis of
evidence without regard to the totality of the evidence;
- Failing to consider the
personal circumstances of the applicant; or
- Failing to take into
account the best interests of the child?
ANALYSIS:
Standard of
Review;
[13]
The
standard of review for the issues noted above has been satisfactorily
established by the jurisprudence: Dunsmuir v New Brunswick, 2008 CSC 9 [Dunsmuir]
at para 57. The overall standard of review for the
weighing of the evidence and balancing of the H&C factors is that of
reasonableness: Shallow v Canada (MCI), 2012 FC 749 at para 5.
Reasonableness is concerned with the justification, transparency and
intelligibility of the decision-making process, but also with whether the
decision falls within a range of possible, acceptable outcomes defensible in
respect of the facts and law: Dunsmuir at para 47.
[14]
For
the second issue, the application of the correct H&C test, the standard of
review is that of correctness: Miller v Canada (MCI), 2012 FC 1173 at
para 15. Where procedural fairness is in question, Dunsmuir, at para 50,
and Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, at
para 43, instruct that no deference to the decision maker is required. The
Court must determine whether the process followed by the decision-maker
satisfied the level of fairness required in all of the circumstances. The Court
may withhold relief if the error is purely technical and occasioned no
substantial wrong.
Did the PRRA
Officer fail to observe procedural fairness by relying on extrinsic evidence
without providing the applicant with an opportunity to respond?
[15]
The
applicant’s argument on this issue targets the officer’s reliance upon the Xinhuanet
report. She contends that this was extrinsic evidence, relied upon by the
officer to determine that there had been a change in country conditions. As
such, the duty of fairness required that the officer disclose the article to
her in advance of making a decision and provide her with an opportunity to
respond: Fi v Canada (MCI), 2006 FC 1125 [Fi]; Mahendran v
Canada (MCI), 2009 FC 1237; Pathmanathan v Canada (MCI), 2009 FC
885; Pinter v Canada (MCI), 2007 FC 986; Thamotharampillai v Canada
(MCI), 2003 FC 836;
[16]
Further,
the applicant submits, the source of the article is suspect as Xinhuanet is the
website of the central news agency owned and operated by the government of China. The objectivity of an article published by the communications arm of the government,
which arguably has a strong interest in presenting the country in the most
positive light, is therefore highly questionable, she contends. Had she been
given notice that the officer intended to rely upon the article she would have
brought these concerns to his attention: Sahota v Canada (MCI), 2011 FC
739 at para 11.
[17]
Guidance
in respect of the use of extrinsic evidence in administrative decisions related
to immigration was offered by the Federal Court of Appeal in Muliadi v
Canada (Minister of Employment and Immigration), [1986] 2 FC 205 (FCA) and Haghighi
v Canada (Minister of Citizenship and Immigration), [2000] 4 FC 407
(FCA). The question is whether meaningful facts essential or potentially
crucial to the decision had been used to support a decision without providing
an opportunity to the affected party to respond to or comment upon these
facts.
[18]
In
Mancia v Canada (Minister of Citizenship and Immigration), [1998] 3 FC
461 (FCA) [Mancia] at paragraph 22 the Federal Court of Appeal offered
the following statement of principle with respect to the disclosure of
information about country conditions in the decision-making process following a
review of the jurisprudence:
These
decisions are based, it seems to me, on the two following propositions. First,
an applicant is deemed to know from his past experience with the refugee
process what type of evidence of general country conditions the immigration
officer will be relying on and where to find that evidence; consequently,
fairness does not dictate that he be informed of what is available to him in
documentation centres. Secondly, where the immigration officer intends to
rely on evidence which is not normally found, or was not available at the time
the applicant filed his submissions, in documentation centres, fairness
dictates that the applicant be informed of any novel and significant
information which evidences a change in the general country conditions that may
affect the disposition of the case. [Underlining added]
[19]
The
“documentation centres” referred to in the foregoing paragraph were physical
locations. The reference to availability in paragraph 22 of Mancia has
to be construed to-day in virtual terms in light of the extraordinary expansion
of the Internet as the preferred vehicle for the dissemination of information
over the course of the past decade.
[20]
Citizenship
and Immigration Canada describes the information it holds in relation to
country conditions on its website (http://www.irb-cisr.gc.ca/eng/resrec/ndpcnd/Pages/index.aspx)
as follows:
The National Documentation Packages (NDPs)
contain a selection of documents on human rights, security conditions and other
issues that are relevant to the determination of refugee protection claims.
They are regularly reviewed and updated as country conditions change. NDPs
are intended solely to support the refugee determination process, and should
not be construed as necessarily implying recognition of a particular
territory's sovereignty or political status.
[21]
The
China Documentation Package which would have been available in December 2011 is
dated July 30, 2010 and cites as sources various reports by international
organizations, non-governmental organizations and governments, including that
of China, as well as media outlets. The Chinese government sources relate to
laws and official procedures. The package contains no references to articles
carried by Xinhua or Xinhuanet. However, this does not exclude the possibility
that the sources relied upon in the package contain information derived from
articles distributed by the Xinhua news agency or published on-line on
Xinhuanet.
[22]
In
any event, the report of the announcement by the Chinese government of its
intentions with respect to HIV/AIDS services was in the public domain at the
time the decision was made. That is the purpose of announcements to the media
including those which may be intended to place the government in a better
light. In this case, the announcement would have been available to anyone with
access to a computer and Internet service.
[23]
It
is trite law that an officer has a duty to consult the most recent sources of
information and is not limited to materials furnished by the applicant. This is
not a case such as Fi, above, where the information was obtained from
the Wikipedia website and the reliability of the sources upon which it had been
based had not been demonstrated. The fact that the source of the information in
the present instance is a news agency owned and operated by the government of China does not make the information about the announcement incorrect or unreliable.
[24]
I
am not persuaded that the Court should instruct immigration officers to, as a
general principle, treat as suspect any information disseminated by a
government owned and controlled news agency such as Xinhua. It may be
propaganda in the sense that its publication is intended to present the
government in a positive light. That is a phenomenon not unique to China. Whether it is or is not propaganda, it is information to be considered with
information from other sources that may shed a different light on the
situation. The task of assigning appropriate weight to such information rests
with the officer and the Court should not interfere unless it is clearly
established that the resulting decision is unreasonable.
[25]
The
key question in the circumstances of this case is whether fairness dictated
that the officer disclose the Xinhua report and invite further submissions
because the content of the announcement was “novel and significant and
[evidenced] changes in the general country conditions that may affect the
decision” (Mancia, para 27).
[26]
I
agree with the respondent that the article from Xinhuanet did not meet this standard
notwithstanding the attention given to it in the officer’s analysis. The
disputed article referred to future plans of the Chinese government to continue
its efforts to address HIV/AIDS. The officer saw the announcement as worthy of
mention, but that does not mean that it was treated as significant new evidence
of a change in country conditions which would materially affect his decision.
Rather, in my view, he saw it as a reaffirmation of the government’s intent to
continue its efforts to improve conditions for persons with HIV/AIDS.
[27]
As
stated by the Court of Appeal in Mancia at paragraph 26, the fact that a
document becomes available after the filing of an applicant’s submissions does
not signify that it contains new information or that such information is
relevant information that will affect the decision. It is only where the
officer relies on a significant post-submission document which evidences
changes in the general country conditions that may affect the decision that it
must be communicated to the applicant.
[28]
Reading
the officer’s analysis as a whole I am satisfied that his decision turned on
the existing anti-discrimination legislation, statistics on the increasing
availability of treatment, and the “Four Frees, One Care” policy, rather than
on the announcement of future plans. The objective documentation relied upon by
the officer indicated that China was making efforts to assist those living with
HIV/AIDS. The Xinhuanet article similarly referenced such efforts and did not
reflect a change in country conditions. The content of the statement was in
line with the previous documentary evidence and reflected an effort towards
continuous progress.
[29]
In
the result, I do not find that the officer breached procedural fairness by
failing to disclose the news report and to invite further submissions. Even if
I had reached a different conclusion on this question, I doubt that I would
have found that it was material to the outcome. Any submissions that the
applicant could have made about the source and quality of the information would
not have displaced the officer’s findings on the other evidence that he relied
upon in reaching his decision.
Did the Officer
err by applying the wrong test for an exemption on humanitarian and
compassionate grounds?
[30]
The
applicant submits that the officer erred by applying the test which is relevant
to a pre-removal risk assessment to the assessment of risk in the context of
the H&C application. The proper test as explained in Pinter v Canada (MCI), 2005 FC 296 at paragraphs 3 and 4 is of unusual and undeserved or
disproportionate hardship, and not the more demanding test of risk to life. She
submits that the officer was selective in his use of the evidence and
disregarded her belief that she would not get the proper treatment in China and would die as a result.
[31]
The
officer did not, in my view, apply the risk to life standard. He discussed the
degree of hardship the applicant would experience if her application was
refused and came to the conclusion that it would not rise to the level of
“unusual, undeserved, or disproportionate”. That was the correct test.
Did the Officer
make an unreasonable decision by a) misconstruing evidence, ignoring evidence,
or basing his decision on a selective analysis of evidence without regard to
the totality of the evidence; failing to consider the personal circumstances of
the applicant; or c) failing to take into account the best interests of the
child?
[32]
The
standard of review for all three aspects of this issue is reasonableness. On
the first point, the applicant argues that the officer ignored her
documentation of discrimination against people living with HIV/AIDS in China or selectively gave it less weight. It is clear from the reasons for decision that
the officer considered all of the documentation presented. It was within his
discretion to assign a suitable weight to each piece of evidence and it is not
within the role of the Court to reweigh the evidence.
In particular, I do not
accept that the officer erred in finding that the applicant had not provided
sufficient evidence to indicate that she would be denied treatment in China. The applicant returned to China for treatment from Guyana and remained there for
several years before seeking protection in Canada. That she might prefer the
treatment available here is understandable. The conclusion that a household
registration certificate (“Hukou”) would be issued or reissued upon the
applicant’s return permitting access to health services was open to the officer
on the evidence including a response to information request obtained by the IRB
Research Directorate.
[33]
On
the second point, the applicant argues that the officer measured her
establishment in Canada against that of a hypothetical person who had not
arrived in Canada in a difficult psychological state due to being HIV positive.
She contends that he should have assessed her individual circumstances. The
factors listed in the IP5 Manual to guide the exercise of discretion by
immigration officers focus on the objective degree of establishment. The
officer is not directed to assess the relative progress in establishment of an
applicant given her personal circumstances upon arrival, but the result at the
time when she is requesting exemption. In this instance, the assessment fell
within the range of acceptable outcomes.
[34]
Finally,
on the question of the best interests of the applicant’s children, the officer
analyzed whether the applicant’s return to China would cause her HIV status to
become known and thereby cause the children prejudice. He noted that even an
affirmative finding would only be one factor, albeit a substantial one, in the
decision, and not an overriding consideration. After considering the evidence,
he concluded that the best interests of the two children did not justify an exemption
in this case. That was a conclusion open to him and the decision discloses that
he was sufficiently alert, alive, and sensitive to their interests.
[35]
The
applicant’s argument essentially asks the Court to reweigh the evidence and
come to a different conclusion. While the Court may have reached a different
conclusion had it been considering the matter at first instance, the Court must
defer to the officer’s findings if they are, as I find in this case,
transparent, intelligible and justified and fall within the range of acceptable
outcomes.
CERTIFIED
QUESTIONS:
[36]
The
applicant has proposed that the following questions be certified as serious
questions of general importance:
a.
Can
a news agency which is owned and operated by a government ever be considered as
a generally accepted and reliable source of human rights conditions of the
country in question?
b.
Would
the answer to the above question be any different if the given news agency is
specifically tasked to promote the good image of the government in question?
c.
In
making an H&C decision, when an officer relies on an article that the
officer has obtained from an online news agency which contains information with
respect to the country’s human rights condition, does the officer have a duty
to disclose such an article to the applicant if the news agency in question is
owned and operated by the government of the country against which the applicant
is seeking protection, and whose mandate is to promote the good image of that
country?
[37]
The
respondent opposes certification of these questions on the ground that they are
too dependent on the specific facts of this case to be of general importance. A
certified question must lend itself to a generic approach leading to an answer
of general application: Boni v Canada (Minister of Citizenship and
Immigration), 2006 FCA 68 at para 6.
[38]
I
agree with the respondent. Moreover, an answer or answers to the proposed
questions would not be dispositive of an appeal in this matter as I have found
that the use of the impugned news report did not materially affect the
officer’s decision.
JUDGMENT
THIS
COURT’S JUDGMENT is that the
application for judicial review is dismissed. No questions are certified.
“Richard
G. Mosley”
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