Dockets:
IMM-11815-12
IMM-11817-12
Citation: 2014 FC 59
Ottawa, Ontario, January 17, 2014
PRESENT: The Honourable Madam Justice Kane
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BETWEEN:
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KE WEI GAO
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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]
The applicant, Mr Gao, seeks Judicial
Review pursuant to section 72 of the Immigration and Refugee Protection Act,
SC 2001, c 27 (the “Act”), of two decisions of a Senior Immigration
Officer (the “Officer”) dated October 2, 2012, one of which refused his
application for permanent residence from within Canada on Humanitarian and
Compassionate [“H&C”] grounds and the other which refused his Pre-Removal
Risk Assessment [“PRRA”] and found that he was not a Convention refugee or person
in need of protection pursuant to section 96 or 97 of the Act.
[2]
For the reasons that follow, the application is
dismissed.
Background
[3]
The applicant, Mr Gao, arrived in Canada in 1996 and was refused refugee status in 1998 due to credibility findings. He has
remained in Canada since that time. He made an application for a PRRA in 2010
and also updated his H&C application which was first submitted in 2004. The
same Officer considered both applications based on similar submissions of the
applicant.
[4]
The applicant’s PRRA submissions were based on
the risk he would face if he returned to China given his Falun Gong practice in
Canada since 2007. His H&C submissions were based on his establishment in
Canada and the hardship and risk he would face if returned to China, again due to his Falun Gong practice.
The PRRA
decision
[5]
The Officer rejected the applicant’s PRRA
application on the basis that the applicant would not be subject to a section
96 or 97 risk if returned to China.
[6]
The Officer noted that the applicant submitted
very little evidence to support his application other than: photographs
depicting him doing exercises (alone and with others), meditating, protesting
in front of the Chinese consulate in Canada, and participating in a Falun Gong
parade; country reports; and, a letter from Rev Dai, who is also the
applicant’s immigration consultant, which stated only that the applicant was a
kind man and devout Falun Gong practitioner. The Officer found that the
applicant did not describe his Falun Gong practice, did not provide evidence
that he is involved with the Falun Dafa Association of Canada or any other
organization, and did not provide letters from other Falun Gong practitioners
that he practices with.
[7]
The Officer noted that he reviewed the June 8,
1999 Immigration and Refugee Board Report entitled Canada/China: Whether
Falun Dafa (Falun Gong; Falungong) practitioners seeking asylum in Canada can
seek corroboration of their status as active practitioners from local Falun
Dafa practitioners in Canada. The Officer cited the Report’s reference to a
“Public Notice” posted on the Bulletin Board of a website belonging to the
Falun Dafa Association of Canada which cautioned that anyone claiming to be a
Falun Gong practitioner seeking asylum would have proof from local Falun Gong
assistance centers and local Falun Dafa Societies and that those without proof
are either fake practitioners or those who seek to damage Falun Gong. The
Officer noted that this caution still applied.
[8]
As a result the Officer concluded that there was
insufficient evidence demonstrating that the applicant “will” be viewed as a
Falun Gong practitioner in China if he returns and that he “does not have a
well-founded fear of persecution in China due to his Falun Gong involvement in Canada.”
[9]
The Officer also concluded that the applicant
would not be at risk if returned to China due to the one child policy, which
was the reason he originally claimed refugee status, or due to his lengthy
absence from China.
[10]
The Officer further found that the applicant was
not at risk under section 97 because he did not provide evidence that he is
likely to be tortured due to his allegations of being a Falun Gong practitioner
nor did he establish that he faces a risk of death or serious violation of his
fundamental human rights.
The H&C
decision
[11]
The Officer also rejected the applicant’s
H&C application which was based on his establishment in Canada and the risk he faced if he were returned to China. With respect to establishment, the
Officer noted that the applicant has had steady employment in the food
industry, paid his taxes, helped out with individuals, been involved in his
Mainland Chinese Christian Fellowship, attended English classes in the late
1990s, and that his farm in China had been confiscated and that his wife and
son remained in China.
[12]
The Officer noted that Falun Gong practitioners
in China are treated harshly and in a way that violates their basic human
rights, but that the applicant had not demonstrated that his involvement in the
practice of Falun Gong is such that he will be viewed as a Falun Gong
practitioner in China. The Officer noted, however, that if the applicant
returned to China and practiced Falun Gong he could be mistreated, and that
this had been considered in assessing hardship.
[13]
The Officer concluded that, on a balance of
probabilities, the applicant would not suffer hardship that would be unusual,
undeserved or disproportionate.
The Issues
[14]
With respect to the PRRA decision, the applicant
submits that although the Officer referred to insufficient evidence, the
Officer made adverse credibility findings, disbelieving that the applicant was
a Falun Gong practitioner and, therefore, the Officer should have held a
hearing and provided an opportunity for the applicant to address these concerns.
The applicant also submits that the Officer stated and applied the wrong test
in assessing risk pursuant to section 96.
[15]
With respect to the H&C decision, the
applicant submits the decision is not reasonable because the Officer made
inconsistent findings of risk in the H&C and in the PRRA. The applicant
submits that even if the analysis differs, the finding of mistreatment in the
H&C should have been analysed in the PRRA to determine if the mistreatment
the applicant would face for practicing Falun Gong upon his return would amount
to persecution.
[16]
The applicable standard of review for both
decisions is reasonableness except with respect to the allegation that the
Officer applied an incorrect legal test in determining risk under section 96,
which would be reviewed on a standard of correctness.
The H&C decision is reasonable
[17]
I find that the Officer’s decision with respect
to the H&C application is reasonable. The PRRA and H&C are separate and
distinct schemes; the former assesses risk pursuant to section 96 and 97 and
the latter assesses whether returning to the country of origin to make an
application for permanent residence would be unusual, undeserved or
disproportionate hardship. While the same allegations may be raised in both,
the Officer must make findings related to the application before them. In the
present case, the Officer did just that.
[18]
Both determinations are based on the same
finding that there was insufficient evidence to demonstrate that the applicant
would be viewed as a Falun Gong practitioner in China. There is no
inconsistency.
[19]
In the PRRA, the applicant’s claims were
assessed to determine if there was a reasonable possibility that he would face
a risk of persecution on a Convention ground or if, on a balance of
probabilities, the applicant would face a risk of torture, or cruel and unusual
treatment or punishment.
[20]
In the H&C, the same claims were assessed to
determine the hardship that the applicant would face, in the context of whether
the overall hardship of returning to China would be unusual, undeserved or
disproportionate. The Officer again concluded that the applicant would not be
viewed as a Falun Gong practitioner, but in assessing hardship, found that if
the applicant returned to China and decided to practice Falun Gong, he
could be mistreated. This was expressed as a possibility contingent on the
applicant actually practicing Falun Gong.
[21]
It was reasonable for the Officer to find that
the applicant could be mistreated if he were to practice Falun Gong and that
this would be some evidence of hardship, but ultimately it was not sufficient
to justify the H&C application, which is an exceptional exemption from
applying for permanent residence from within Canada.
The section 96
test was misstated but the correct test was applied
[22]
The applicant submits that the Officer erred in
misstating and misapplying the test for refugee protection under section 96;
the Officer’s reasons state that there was “insufficient information […] to
demonstrate that the Applicant will be viewed as a Falun Gong practitioner in China.” The applicant submits that the Officer elevated the test beyond that required which
is to demonstrate that the applicant would face a serious possibility or
reasonable chance of persecution.
[23]
The respondent acknowledges that this one
statement does misstate the standard, but that it is apparent that the Officer
applied the correct standard. Moreover, the applicant failed to demonstrate
that he faced a serious possibility of persecution.
[24]
I agree that the reasons read as a whole
demonstrate that the Officer applied the correct test in assessing risk
pursuant to section 96 and determining that the applicant would not face a
serious possibility of persecution because he had not established his claim
that he practised Falun Gong.
[25]
The test was established by the Federal Court of
Appeal in Adjei v Canada (Minister of Employment and Immigration), [1989] 2 FC 680 at para 8, [1989] FCJ No 67:
“What is evidently
indicated by phrases such as “good grounds” or “reasonable chance” is, on the
one hand, that there need not be more than a 50% chance (i.e., a probability),
and on the other hand that there must be more than a minimal possibility. We
believe this can also be expressed as a “reasonable” or even a “serious
possibility”, as opposed to a mere possibility.”
[26]
As in Paramanathan v Canada (Minister of Citizenship and Immigration), 2012 FC 338, [2012] FCJ No 377, the
misstatement is not fatal because the Officer did understand the correct test
and applied it. As noted by Justice Near at paragraph 24:
Admittedly, the Board
could have been clearer in its choice of wording. The statements referred
to do not suggest, however, that an inappropriately high threshold was
ultimately applied. The Board simply concluded that the Applicant had not
established subjective or objective fear of persecution in accordance with the
relevant tests.
[27]
Similarly in this case, the Officer should have
been more accurate in setting out the test, but the decision as a whole
demonstrates that the Officer did not hold the applicant to a higher standard
of risk.
The Officer did
not make veiled credibility findings
[28]
The key issue is whether the Officer’s
determination that there was insufficient evidence was reasonable or whether
the determination was in essence, an adverse credibility finding that should
have triggered an oral hearing.
[29]
The applicant submits that although the PRRA
decision was framed in terms of sufficiency of evidence, the Officer rejected
the application because he did not find the applicant’s evidence that he is a
Falun Gong practitioner to be credible, particularly because his affidavit
evidence was not corroborated by a Falun Gong organization or other
practitioners.
[30]
The applicant submits that section 167 of the Immigration
and Refugee Protection Regulations, SOR/2002-227, provides that a hearing
should be held in certain circumstances where there is evidence that raises a
serious issue of the applicant’s credibility; where that evidence relates to
the risk factors set out in sections 96 and 97 and is central to the decision;
and if accepted, would justify the application for protection.
[31]
The respondent submits that the Officer did not
make a credibility finding; rather, he found that there was insufficient
evidence.
[32]
I note that in some cases it is difficult to
draw a distinction between a finding of insufficient evidence and a finding
that the applicant was not believed i.e. was not credible. The choice of words
used, whether referring to credibility or to insufficiency of the evidence is not
solely determinative of whether the findings were one or the other or both.
However, it can not be assumed that in cases where an Officer finds that the
evidence does not establish the applicant’s claim, that the Officer has not
believed the applicant.
[33]
In Herman v Canada (Minister of
Citizenship and Immigration), 2010 FC 629 at para 17,
[2010] FCJ No 776, Justice Crampton differentiated Liban
v Canada (Minister of Citizenship and Immigration),
2008 FC 1252, [2008] FCJ No 1608 [Liban] and other cases on veiled
credibility findings, stating:
In my view, those
cases do not stand for the proposition that a PRRA Officer in essence makes an
adverse credibility finding every time he or she concludes that the evidence
adduced by an Applicant is not sufficient to meet the Applicant's evidentiary
burden of proof. In each of those cases, it was clear to the Court that the
PRRA Officer either had made a negative credibility finding, or simply
disbelieved the evidence presented by the Applicant. This is very different
from not being persuaded that an Applicant has met his or her burden of proof
on the balance of probabilities, without ever having considered whether the
evidence is credible.
[34]
In Carillo v Canada (Minister of Citizenship
and Immigration), 2008 FCA 94 at para 16, [2008] FCJ No 399 [Carillo],
the Court of Appeal noted that the burden of proof, standard of proof and the
quality of the evidence necessary to meet the standard of proof are different
legal concepts which should not be confused.
[35]
In Ferguson v Canada (Minister of Citizenship and Immigration), 2008 FC 1067, [2008] FCJ No 1308 [Ferguson ], Justice Zinn cited Carillo and reiterated the difference
between the evidentiary burden and the legal burden on the applicant and the
standard of proof. In Ferguson, the applicant claimed she was at
risk of persecution because she was a lesbian. The Officer found there was
insufficient evidence, but the applicant argued this was really a credibility
finding – he did not believe the submission by counsel that she was a lesbian,
and therefore should have held a hearing.
[36]
Justice Zinn noted that the applicant bears the
burden of proof on a balance of probabilities that he or she would be at risk
of persecution. This is met by presenting evidence to the officer to establish
the facts which must be proved. The officer then weighs the evidence. Whether
the legal burden is met will depend on the weight attached to the evidence.
This may first involve an assessment of credibility, and if found not to be
credible, no weight will be attached to the evidence. But, as noted by Justice
Zinn, the officer may either go on to weigh evidence that he has found to be
credible or may move directly to weighing the evidence without making any
credibility findings:
[26] If the trier of fact finds that the
evidence is credible, then an assessment must be made as to the weight that is
to be given to it. It is not only evidence that has passed the test of
reliability that may be assessed for weight. It is open to the trier of
fact, in considering the evidence, to move immediately to an assessment of
weight or probative value without considering whether it is credible.
Invariably this occurs when the trier of fact is of the view that the answer to
the first question is irrelevant because the evidence is to be given little or
no weight, even if it is found to be reliable evidence. For example,
evidence of third parties who have no means of independently verifying the
facts to which they testify is likely to be ascribed little weight, whether it
is credible or not.
[27] Evidence tendered by a witness with a
personal interest in the matter may also be examined for its weight before
considering its credibility because typically this sort of evidence requires
corroboration if it is to have probative value. If there is no
corroboration, then it may be unnecessary to assess its credibility as its
weight will not meet the legal burden of proving the fact on the balance of
probabilities. When the trier of fact assesses the evidence in this
manner he or she is not making a determination based on the credibility of the
person providing the evidence; rather, the trier of fact is simply saying the
evidence that has been tendered does not have sufficient probative value,
either on its own or coupled with the other tendered evidence, to establish on
the balance of probability, the fact for which it has been tendered.
That, in my view, is the assessment the officer made in this case.
[37]
Justice Zinn also noted that deference is owed
to the PRRA Officer:
[33] The weight the trier of fact gives
evidence tendered in a proceeding is not a science. Persons may weigh
evidence differently but there is a reasonable range of weight within which the
assessment of the evidence’s weight should fall. Deference must be
given to PRRA officers in their assessment of the probative value of evidence
before them. If it falls within the range of reasonableness, it should
not be disturbed. In my view the weight given counsel’s statement in this
matter falls within that range.
[34] It is also my view
that there is nothing in the officer's decision under review which would
indicate that any part of it was based on the Applicant's credibility.
The officer neither believes nor disbelieves that the Applicant is lesbian – he
is unconvinced. He states that there is insufficient objective evidence
to establish that she is lesbian. In short, he found that there was some
evidence – the statement of counsel – but that it was insufficient to prove, on
the balance of probabilities, that Ms. Ferguson was lesbian. In my view,
that determination does not bring into question the Applicant’s credibility.
[38]
The applicant submits that Ferguson should
be distinguished because in that case the applicant had not provided a sworn statement.
[39]
While the facts differed in that respect, the
same distinctions between the evidentiary and legal burden and the standard of
proof remain and the weight to be given to evidence remains the role of the
PRRA Officer. In the present case, the applicant did provide a statutory
declaration which is presumed to be true, but it said very little and, along
with the other evidence, did not satisfy the PRRA officer that the applicant
was a Falun Gong practitioner. In Ferguson, Justice Zinn noted that
the statement from the applicant’s counsel, rather than the applicant herself,
could be evidence in the PRRA with the appropriate weight attached by the PRRA
Officer, but reasonably concluded overall that the applicant had not provided
sufficient evidence to establish she was a lesbian.
[40]
The applicant submits that the present case is
more akin to Liban where Justice O’Reilly found that the findings of
insufficient evidence were really credibility findings and that a hearing
should have been held:
[13] The officer’s reasons persuade
me that a hearing was required here. First, the officer seemed to place
considerable emphasis on the credibility findings of the Immigration Appeal
Division. Second, the officer found that there was insufficient objective evidence
to support Mr. Liban’s claim that he had a relationship with Jimmy. Third, the
officer found that there was insufficient objective evidence to support Mr.
Liban’s claim to be an alcoholic. Fourth, the officer seemed to accept that
homosexuals and alcoholics would be subjected to mistreatment in Ethiopia. Therefore, if Mr. Liban’s evidence relating to his sexuality and alcoholism had
been accepted, the officer would likely have allowed the application.
[14] In my view, when the officer
stated that there was “insufficient objective evidence” supporting Mr. Liban’s
assertions, he was really saying that he disbelieved Mr. Liban and, only if Mr.
Liban had presented objective evidence corroborating his assertions, would the
officer have believed them. To my mind, these findings are conclusions about
Mr. Liban’s credibility. They were central to his application. If the officer
had believed Mr. Liban, the officer, in light of the documentary evidence he
accepted, would likely have found that Mr. Liban was at risk.
[41]
In the present case, the Officer’s reasons
referred only to the insufficiency of the evidence. Although the Officer noted
that credibility had been fatal to the applicant’s refugee determination in
1998, the Officer did not import those findings into the PRRA determination.
The Officer addressed the other claims of the applicant and found that the
applicant had not provided evidence that he would be detained upon return
because he had been gone so long - i.e. insufficient evidence -, and also found
that he would not be in violation of the one child policy because he had only
one child. In assessing the risk of persecution due to his practice of Falun
Gong, the Officer consistently and repeatedly used the terms “insufficient
information” , “very little evidence “, and “the applicant has submitted very
little else” when describing the evidence.
[42]
The applicant’s evidence consisted of his
statutory declaration, pictures, and the letter from the Rev Dai, who was also
the applicant’s Immigration Consultant and which was based on information
provided by the applicant. The Officer referred to the Report of the
Immigration and Refugee Board which noted, among other information, that a
local practitioner had commented that some persons joined protests and demonstrations
solely for the purpose of being photographed. The Officer also indicated that
he gave low weight to the letter from Rev Dai. The Officer commented that there
were no documents from the Falun Dafa Association or other persons that the
applicant practiced with, and more generally that the applicant had provided
little information about his own practice of Falun Gong.
[43]
Unlike Liban, I can not conclude that the
Officer was really signalling that he disbelieved the applicant and that the
findings about the lack of sufficient evidence were conclusions about the
applicant’s credibility.
[44]
Rather, the Officer, as in Ferguson,
assessed the evidence submitted and its probative value and neither believed
nor disbelieved the applicant but was simply not satisfied that the applicant
had provided sufficient evidence that he would be viewed as a Falun Gong
practitioner.
[45]
The onus is on the applicant to establish his
claim with evidence that will meet the evidentiary and legal burden. The
applicant would have known or been advised that a hearing was not the norm for
a PRRA and that he had to put his best foot forward to establish on a balance
of probabilities that he was practicing Falun Gong and that there would be a
reasonable chance or a serious possibility that he would be at risk of
persecution as a result if he were to return to China.
[46]
In this case, the Officer reasonably concluded
that the applicant had not established that he was practicing Falun Gong and
that he would be viewed as a Falun Gong practitioner.
[47]
The finding was reasonably open to the Officer
to make. The Court can not reweigh the evidence, as that is the role of the
Officer. The Officer considered all the evidence presented and provided
justification for his findings. The decision meets the Dunsmuir standard
as it “fall(s) within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law” (Dunsmuir
v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 S.C.R. 190). There may be several reasonable outcomes and “as long as the
process and the outcome fit comfortably with the principles of justification,
transparency and intelligibility, it is not open to a reviewing court to
substitute its own view of a preferable outcome” (Canada (Citizenship and Immigration) v Khosa,
2009 SCC 12 at para 59, [2009] 1 S.C.R. 339).
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