Dockets: IMM-7242-13
IMM-7243-13
Citation:
2015 FC 646
Ottawa, Ontario, May 19, 2015
PRESENT: The
Honourable Madam Justice Strickland
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Docket: IMM-7242-13
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BETWEEN:
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CHAOHONG LAI
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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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Docket: IMM-7243-13
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AND BETWEEN:
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CHAOHONG LAI
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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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JUDGMENT AND REASONS
[1]
These are applications for judicial review of
the September 5, 2013 decision of a Senior Immigration Officer, Citizenship and
Immigration Canada (the Officer), refusing the Applicant’s Pre-Removal Risk
Assessment (PRRA) (IMM-7243-13), and of the September 12, 2013 decision of the
same Officer denying the Applicant’s application for permanent residence, based
on humanitarian and compassionate (H&C) grounds pursuant to s 24(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA).
Background
[2]
The Applicant is a citizen of China. There, in
2006, she married Mr. Xinghua Peng. She later joined him in the United States,
where he was working, and where their daughter was born in 2008. In February
2009 the Applicant and her family came to Canada to visit her sister and in
November 2009 she made a refugee claim based on her fear of arrest in China because
of her Christian activities there. She and her husband separated in November
2009 and later divorced.
[3]
The Refugee Protection Division (RPD) denied her
claim on March 14, 2012. The RPD found that the Applicant was not credible in
respect of her assertion that she was being persecuted as a member of an
underground church and that should she return to China there was not a serious
possibility that she would be persecuted. Her application for judicial review
of that decision was denied.
[4]
In her PRRA application the Applicant identified
a new allegation of risk, being that she fears harm at the hands of her
ex-husband should she return to China. In support of her PRRA application the
Applicant filed, amongst other things, an April 30, 2013 report of Ms. Deborah
Sinclair, a social worker with expertise in the area of domestic abuse (Expert
Report). The Officer made no mention of the Expert Report in the PRRA
decision.
[5]
The Expert Report was inadvertently not included
in the Applicant’s H&C application. Regardless, in considering the
Applicant’s claim that she would be viewed in China as an individual with
mental illness and, therefore, because of her Post-Traumatic Stress Disorder
(PTSD), that she would be at risk of discrimination, the Officer accepted the
information found in the Applicant’s narrative to be statements made by Ms.
Sinclair. Specifically, that in her opinion, the Applicant’s symptoms were
consistent with PTSD and the Applicant’s return to China would prove disastrous
for her mental health. The Expert Report was not considered by the Officer
when she addressed the issue of domestic violence.
[6]
The Applicant sought a stay of her removal order
which was denied by Justice Russell on December 4, 2013, on the basis that the
Applicant had failed to establish irreparable harm. She and her daughter were
removed from Canada on December 9, 2013.
IMM-7243-13
Is the application for
judicial review of the PRRA decision moot?
Applicant’s Position
[7]
The Applicant acknowledges that her removal from
Canada rendered her application for leave and judicial review of the PRRA
decision “technically moot” (Figurado v
Canada (Solicitor General), 2005 FC 347 at paras 8, 40-41 [Figurado];
Solis Perez v Canada (Minister of Citizenship and Immigration), 2008 FC
663 at para 26 [Solis]).
[8]
However, she submits that the test for mootness
as set out in Borowski v Canada (Attorney General), [1989] 1 S.C.R. 342 [Borowski],
and as applied in Solis has been met in the circumstances of this
matter. First, an adversarial context still exists because the Applicant is
represented by counsel, who continues the application on her behalf (Solis
at para 29). Second, the H&C and PRRA judicial review applications are to
be heard together and are highly connected. A determination on the PRRA as to
whether the Officer possessed or reviewed the Expert Report is an important
factor to consider in the H&C review that is not moot and could result in,
and have the practical effect of, the Applicant’s returning to Canada.
Alternatively, at issue in this case is the question of whether an expert
report can be relied upon not only to determine subjective fear but also, in
the case of domestic violence, to establish objective fear, the resolution of
which question is in the public interest. Accordingly, the Court’s resources
would not be unduly taxed.
[9]
Third, because the stay was denied on the basis
of irreparable harm, the test for which is higher than the serious possibility
test used in conducting a PRRA, judicial review of the PRRA decision would not amount
to an indirect review of the stay decision (Alfred v Canada (Minister of
Citizenship and Immigration), [2005] FCJ No 1391). Moreover, findings of
fact made in the context of a stay are not binding in the judicial review
determination (Johnson v Canada (Citizenship and Immigration), 2010 FC
311 at para 14 [Johnson]). Further, the judicial review of the PRRA
would not trench on the legislative sphere by establishing a new category of
persons in need of protection removed from Canada who continue to claim outside
Canada that they are at risk, as described in Figurado. Rather, it would
allow for a fair redetermination of the related H&C decision.
Respondent’s Position
[10]
The Respondent submits that the application for
judicial review of the PRRA decision became moot on the removal of the
Applicant from Canada as, by way of s 112(1) of the IRPA, Parliament intended
that a PRRA should be determined before an applicant is removed from Canada.
The underlying basis for the dispute over the lawfulness of the PRRA decision
has been eliminated or, at best, rendered declaratory. Further, the basis for
the Officer to engage in the risk determination process is no longer applicable
as the Applicant has been returned to China, thus the judicial review is
without object (Solis at para 5; Sogi v Canada (Citizenship and
Immigration), 2007 FC 108 at para 31 [Sogi]; Mekuria v Canada (Citizenship
and Immigration), 2010 FC 304 at para 15 [Mekuria]; Villalobo
v Canada (Citizenship and Immigration), 2009 FC 773 at paras 17-19 [Villalobo]).
[11]
However, the Respondent acknowledges that the
Federal Court of Appeal in Canada (Public Safety and Emergency Preparedness)
v Shpati, 2011 FCA 286 at para 30 [Shpati], noted that the Court
may, nonetheless, exercise its discretion to hear a moot application regarding
a negative PRRA if hearing it accords with the principles set out in Borowski
(Solis at para 5; Avdonina v Canada (Citizenship and Immigration),
2012 FC 1109 at para 5 [Avdonina]; Lakatos v Canada (Citizenship and
Immigration), 2010 FC 971 at paras 4-5 [Lakatos]; Leon Sanchez v
Canada (Citizenship and Immigration), 2010 FC 846 at paras 17-18 [Sanchez];
Villalobo at paras 17-18).
[12]
In that regard, as to adversarial context, it is
not enough to show that the parties continue to disagree regarding the
underlying legal issues, the Applicant must show that that there is some other
value to her in having the merits of the case decided, notwithstanding the fact
that the relief is no longer available (Borowski; Figurado at
para 47; Sogi). Further, even if an adversarial context does exist, it does
not outweigh the remaining Borowski factors.
[13]
Borowski held
that courts should be disinclined to exercise their discretion to hear a matter
in light of mootness where it is not in the public interest to address the
merits in order to settle the state of the law or does not engage a legal
question that has evaded the courts (Borowski at paras 36-37, 41, 45-47;
Avdonina at para 5; Ren v Canada (Public Safety and Emergency
Preparedness), 2012 FC 1345 at para 45; R v Adams, [1995] S.C.R. 707 at
718-19). The Applicant’s contention with the Officer’s decision is evidentiary
and specific to this litigation. It includes adequacy of reasons,
reasonableness, whether the decision-maker must mention all submitted evidence
explicitly, and the relevance of psychiatric opinion evidence to establish a
claim of objective risk outside of Canada in the context of ss 96 and 97.
These are all issues previously addressed by the jurisprudence, and no question
of public interest or unsettled law arises (Lai v Canada (Citizenship and
Immigration) (4 December 2013), Ottawa, IMM-7242-13 (FC); Chinchilla v
Canada (Minister of Citizenship and Immigration), 2005 FC 534 at para 18; Varga
v Canada (Minister of Citizenship and Immigration), 2005 FC 617 at paras 29-30
[Varga]; Contreras Martinez v Canada (Minister of Citizenship and
Immigration), 2006 FC 343 at paras 13-16; Gallo Farias v Canada
(Citizenship and Immigration), 2008 FC 578 at paras 17, 19; Johnson at
paras 15-17, 19).
[14]
Further, the Court should not be put in a
position of trenching on the legislative sphere (Figurado at para 48).
Section 99 of the IRPA makes a clear distinction between refugee protection
claims made in Canada and those raised by persons outside of Canada. Only
those pursued by persons who are in Canada may be referred to a PRRA Officer
for determination of the risks claimed. The IRPA and its regulations already
provide a scheme, which does not engage a PRRA officer, for individuals who are
outside Canada.
[15]
The Respondent submits that this is not a case
where the circumstances warrant the Court’s discretion to hear a moot case or
one where it has been demonstrated that judicial economy is outweighed by a
public interest in favour of hearing this moot application.
Analysis
[16]
At the hearing of this matter, I heard the
parties’ arguments on the issue of mootness and reserved my decision in that
regard. I then heard the parties’ submissions on the merits, subject to the
reservation of my decision on the mootness issue, which I have now addressed
below.
[17]
The Supreme Court of Canada in Borowski
stated:
[15] The doctrine of mootness is an
aspect of a general policy or practice that a court may decline to decide a
case which raises merely a hypothetical or abstract question. The general
principle applies when the decision of the court will not have the effect of
resolving some controversy which affects or may affect the rights of the
parties. If the decision of the court will have no practical effect on such
rights, the court will decline to decide the case. This essential ingredient
must be present not only when the action or proceeding is commenced but at the
time when the court is called upon to reach a decision. Accordingly if,
subsequent to the initiation of the action or proceeding, events occur which
affect the relationship of the parties so that no present live controversy
exists which affects the rights of the parties, the case is said to be moot.
The general policy or practice is enforced in moot cases unless the court
exercises its discretion to depart from its policy or practice. The relevant
factors relating to the exercise of the court’s discretion are discussed
hereinafter.
[16] The approach in recent cases
involves a two-step analysis. First, it is necessary to determine whether the
required tangible and concrete dispute has disappeared and the issues have
become academic. Second, if the response to the first question is affirmative,
it is necessary to decide if the court should exercise its discretion to hear
the case. The cases do not always make it clear whether the term “moot” applies
to cases that do not present a concrete controversy or whether the term applies
only to such of those cases as the court declines to hear. In the interest of
clarity, I consider that a case is moot if it fails to meet the “live
controversy” test. A court may nonetheless elect to address a moot issue if the
circumstances warrant.
[18]
In 2009 the Federal Court of Appeal in Solis
considered an appeal of a decision that dismissed an application for judicial
review of a PRRA decision. The application had been dismissed on the ground
that the matter was moot because the applicant had been removed from Canada,
however, the Court certified three questions.
[19]
The first question was whether an application
for judicial review of a PRRA is moot when the individual who is the subject of
the decision has been removed from or has left Canada after an application for
a stay of removal has been rejected. The Federal Court of Appeal answered that
question affirmatively, noting that review of a negative decision of a PRRA
officer after the subject person has been removed is without object.
[20]
Solis has
subsequently been followed by this Court on numerous occasions (Lakatos;
Sanchez; Villalobo; also see Rosa v Canada (Citizenship and
Immigration), 2014 FC 1234 at paras 34-35). In 2011, the Federal Court of
Appeal found that even though an applicant’s removal from Canada renders his or
her application for judicial review of a PRRA moot, the Court may nevertheless
exercise its discretion to hear the matter on the basis of the Borowski
factors (Shpati at para 30).
[21]
Based on Solis, I have concluded that the
application for judicial review of the PRRA decision is moot. Although the
Applicant ably presented her case, I am not persuaded that this is a situation
that warrants the exercising of my discretion to hear the PRRA application.
[22]
As stated by Justice Near in Mekuria:
[12] In
declining to exercise my discretion, I rely on this Court’s decisions in Rana
v. Canada (Minister of Citizenship and Immigration), 2010 FC 36, Sogi v.
Canada (Minister of Citizenship and Immigration), 2007 FC 108; [2007]
F.C.J. 158, Perez v. Canada (Minister of Citizenship and Immigration),
2008 FC 663; 328 F.T.R. 290, Ero v. Canada (Minister of Citizenship and
Immigration), 2002 FCT 1276; , 226 F.T.R. 311. In these cases, the Court
was faced with similar issues as here – that the Applicant had been removed
from Canada prior to the hearing of their application for judicial review.
[13] In this matter, I am satisfied
that an adversarial context still exists between the parties. However, the
existence of an adversarial context does not outweigh the other two issues set
out in Borowski, above.
[14] These issues, the conservation of
judicial resources and the importance of not departing of [sic] the
courts [sic] role as the adjudicative branch, were discussed by Justice
Luc Martineau in Perez, above. I agree with his conclusions and apply
them to this case. Specifically, that a moot issue should not unduly take up
judicial resources, that a re-determination order may establish a new category
of persons in need of protection, that what was once a legal action of the
government (the enforcement of the removal order) may become illegal afterwards
simply by judicial dicta, and that a hearing of the judicial review in this
instance may, in essence, amount to an indirect review of the merits of Justice
Kelen’s discretionary decision with regard to the stay.
[15] A further consideration is that I
cannot grant a practical remedy in this case - while I may set aside the
decision of the Officer, I cannot order a new PRRA be undertaken (see Ero,
above, at paragraphs 26-27). The purpose of a PRRA, as set out in paragraph 31
of Sogi, above, is to assess the risks before the removal, not after.
[23]
I would add to this that because the Officer who
decided the PRRA also decided the H&C application, the issue of the Officer’s
treatment of the Expert Report, in the context of risk, can be considered in
the hearing of the merits on the H&C decision (see Sosi v Canada
(Citizenship and Immigration), 2008 FC 1300 at paras 12, 15 [Sosi]; Giron
v Canada (Citizenship and Immigration), 2013 FC 114 at paras 10-18 [Giron]).
[24]
Accordingly, the judicial review of the negative
PRRA decision is dismissed.
IMM-7242-13
Decision Under Review
[25]
The Applicant based her claim on numerous
factors, including her fear that her ex-husband would follow her to China and
cause her harm, her fear that she would be persecuted by the Chinese authorities
because of her Christian faith, the best interests of her daughter, and her
establishment in Canada. These were all addressed by the Officer. However, as
the Applicant challenges the Officer’s findings only on the basis of her
treatment of the Expert Report and the related risk of domestic violence upon
her return to China, including the standard of proof and state protection, only
those aspects of the decision are addressed here.
[26]
As to the risk of domestic violence, the Officer
stated that she had reviewed the Applicant’s submissions and accepted that
China’s programs for helping women who are victims of domestic abuse were not
ideal. However, the Officer deemed the Applicant’s allegations that her
ex-husband would follow her to China as speculative, stating “I find little evidence to demonstrate that Mr. Peng has the
profile to track the Applicant down in China in order to harm her, despite the
fact that Mr. Peng has not conducted himself appropriately during Karen’s
custody battle and during his marriage to the Applicant”.
[27]
The Officer noted that Mr. Peng had not been
convicted of domestic violence and that there was little evidence that he did
not abide by the Court order he had been issued in the divorce and custody
battle. The Officer also gave little weight to a letter written by Mr. Peng to
the Applicant during the divorce proceedings, stating that it was open to
interpretation and not written in a threatening manner. The Officer found that
China has a large police presence (US Department of State, Human Rights Report:
2012 China (US DOC 2012)) and that it would be reasonable to expect that the
police would respond should the Applicant find herself in need of protection.
[28]
The Officer concluded that the Applicant had
provided insufficient evidence to demonstrate that she had a well-founded fear
that Mr. Peng would follow her to China in order to harm her. Further, she has
a viable avenue of recourse through the police. Accordingly, she had failed to
establish that there was a serious possibility that she would be at risk of
harm by Mr. Peng in China and would therefore suffer unusual and undeserved or
disproportionate hardship.
[29]
The Officer’s analysis of domestic violence
makes no reference to the Expert Report.
[30]
Under the topic of mental illness the Officer
notes that the Applicant states that Ms. Sinclair, as registered social worker,
provides her expert opinion regarding the Applicant’s emotional and mental
state but that the report was not in the submissions. However, she accepted
the information found in the Applicant’s narrative to be statements made by Ms.
Sinclair that, in her professional opinion, the Applicant’s symptoms are
consistent with PTSD and that deporting her to China would prove disastrous for
her mental health. The Officer ultimately accorded the expert opinion little
weight in that regard.
Applicant’s Position
[31]
The Applicant makes lengthy submissions, the
crux of which is that the Officer entirely failed to consider the risk of
domestic violence in her PRRA decision and again failed to assess that risk in
the context of the H&C, although the Officer would or should have been
aware of the existence of the report and could not be blind to that evidence (Sosi;
Giron).
[32]
Ms. Sinclair’s status as an expert in the field
of domestic violence is incontrovertible and her opinion as to the risk to the
Applicant should have been considered by the Officer.
[33]
Further, the Officer imposed a balance of
probabilities standard of proof when the correct standard was a serious
possibility. The Officer also erred in attributing too little weight to Mr.
Peng’s letter, which was sufficiently threatening for police to have charged
him with uttering death threats and resulting in a 12 month no contact peace
bond. The Officer’s assessment of the risk as speculative ignored the letter
from the Applicant’s sister confirming the abuse and threats. The Officer also
failed to analyse any of the country conditions documentation concerning the
lack of protection for those facing domestic violence and offered no explanation
as to why she preferred the US DOC 2012 report to the contrary and relevant
evidence.
Respondent’s Position
[34]
The Respondent submits that the Expert Report
does not provide evidence that assists in analysing whether the Applicant faces
risk in China, as it is not relevant to the objective risk claimed in China by
the Applicant (Varga at paras 29-30; Johnson at paras 15-17, 19).
Therefore, it was not unreasonable for the Officer to have linked the relevance
of the Expert Report to the Applicant’s subjective mental state, particularly
as it provided no objective evidence or independent claims that the Applicant
faced a risk in China from her ex-husband, a Canadian citizen residing in Canada.
Nor did the Officer apply the wrong standard of proof in regard to the
Applicant’s claim of risk of harm in China, as is evident from her reasons.
[35]
The letter from the Applicant’s ex-husband must
be read in the overall context of the H&C decision and possibly the related
PRRA decision to which the Respondent makes reference. The Officer’s treatment
of the letter was reasonable and, based on the evidence, she found that it did
not comprise a threat.
[36]
Because the Applicant failed to establish that
her personal circumstances were related to the country conditions alleged,
there is no basis for judicial review of the Officer’s analysis of the country
conditions. In any event, this was sufficient in the context of the
insufficiently established claim of risk in China from her ex-husband.
[37]
As to the Expert Report, it was reasonable to accord
it little weight, as it states that the Applicant’s ex-husband has been
convicted when he was only charged and released on bail, and the matter was
ultimately resolved with a peace bond, which was respected. Further, the
Officer found that the Expert Report was developed based on the Applicant’s
statements. Therefore, according it little weight was reasonable, as it was
consistent with jurisprudence regarding psychiatric opinion.
Analysis
[38]
In my view, the issue in this matter is whether
the Officer’s treatment of the Expert Report was reasonable, and I have
concluded that it was not.
[39]
It is first necessary to consider the report and
its author.
[40]
Ms. Sinclair holds a master’s degree in social
work and is a registered social worker. As seen from her CV, attached to the
report, she has practiced in her field since 1984 and has considerable experience
and expertise in the area of domestic violence. By way of example only, she
was appointed to the Advisory Committee of the Domestic Violence Threat Assessment
and Risk Management Curriculum and Training Project funded by Ontario (2011 to
date), to the Provincial Advisory Committee of the Domestic Violence, Mental
Health and Addictions Curriculum Development Project (2011 to date), the
Domestic Violence Death Review Committee, Chief Coroner’s Officer, Toronto
(2002 to date). She has been qualified as an expert witness in approximately
50 cases concerning domestic violence and has provided contractual services to
many sectors to address various domestic risk identification, assessment and
management issues.
[41]
In her report, Ms. Sinclair sets out the opinion
she was requested to provide with respect to the Applicant, which included an
assessment of the ongoing risk of post-separation violence by Mr. Peng. She
states that she met with the Applicant twice for approximately 7.5 hours in
total and had reviewed the documentation provided to her, which she listed.
This included the Applicant’s statutory declaration, the letter from the
Applicant’s sister, email and text messages from the Applicant’s ex-husband,
and the peace bond and recognizance for bail. She stated that she based her
opinion on this information.
[42]
The opinion provides much general information as
to the nature of abusive relationships and how they affect the women involved.
As to the Applicant, Ms. Sinclair stated that it was her opinion that the Applicant
was the victim of ongoing emotional, verbal, economic, psychological, sexual,
financial and physical abuse by her ex-husband, both during her marriage and
after separation.
[43]
She stated that from her perspective this was an
alarming situation because of a post-separation sexual assault and continued
threatening phone calls and texts that indicated that Mr. Peng “has no intention of leaving Ms. Lai and her daughter alone”
and:
This case has a number of high risk
indicators that suggest to me that Ms. Lai and her daughter might well be at
risk of serious or lethal harm if her husband has access to them. I used Dr.
Jacqueline Campbell’s Danger Assessment tool, which is a widely recognized, empirically
validated, 20 item assessment tool that measures the level of lethal risk in a
domestic violence situation. After administering the DA tool in Ms. Lai’s
situation, it became evident that she answered affirmatively to 12 out of 20 of
the risk factors.
[44]
On this basis Ms. Sinclair found that the
Applicant’s situation was considered a very high risk situation. She also
applied the Domestic Violence Death Review Committee’s Risk Coding Form,
concluding that the Applicant “is an extremely high
risk victim for further abuse that could be lethal, if her ex-husband were to
have access to her”.
[45]
As noted above, the PRRA decision made by the
same Officer considered the Applicant’s alleged risk of domestic violence. It
made no reference whatsoever to the Expert Report. Amongst other things the
Officer found:
•
While Mr. Peng was charged with uttering death
threats on the basis of his email, he was not convicted. He abided by the
conditions of the recognizance order, and there was little evidence to suggest
that further charges were laid;
•
The Officer gave little weight to both that
letter and subsequent texts, as the “content in these
documents is cryptic and therefore subject to varied interpretations. I also give
little weight to the letter from the Applicant’s sister as” [statement
ends here];
•
While the Applicant states that her ex-husband
tried to strangle her once, she did not state that she called the police, and a
police report was not submitted;
•
The Applicant did not provide a “reasonable or rational explanation” as to why she had
willingly gone to help her ex-husband prepare for a job interview, given the
allegations that she feared for her life at his hands. As she had previously
pressed charges, her behaviour was not consistent with having a well-founded
fear of harm;
•
She did not press charges as a result of the
rape that she alleged to have occurred during that visit, and her allegations
of rape were “not supported with evidence given the
fact that the Applicant was already divorced from Mr. Peng, was already
familiar with the Canadian legal system and had already pressed charges against
Mr. Peng in the past”; and
•
The Applicant had produced insufficient evidence
to demonstrate that she had a well-founded fear that Mr. Peng would follow her
to China in order to harm her.
[46]
Yet the Expert Report, which the Officer does
not refer to, notes that:
•
More than half of abusers who kill their
partners do so at the point of a planned separation or after a separation;
•
As to the alleged post-separation sexual
assault, the Applicant felt concerned and blamed herself for having been
manipulated by her ex-husband into going to his home. She did not report it to
the police because she feared she would not be believed and would be blamed for
going to his home; she was also fearful of retaliation and did not want to
jeopardize his job, as she was financially dependent on him.
•
“Ms. Lai is a woman who
is consistent in her disclosures and thus, in my professional opinion, is
highly believable. Her description of her relationship with Mr. Lai and in
particular, her disclosure to me on April 2, 2013, of the most recent assault
is believable and not at all uncommon in my professional experience. In my
view, Ms. Lai continues to be terrified of her husband and believed she had no
choice but to respond to his pressure to support him and help him prepare for a
new job interview. Ms. Lai was manipulated into having contact with Mr. Peng
after excessive harassment and pleading from him, as well as pressure from her
former church community members. Her behaviour is a result of her circumstance,
not a deficit in her character, and does not detract from her credibility as a
survivor of abuse. Any victim of such extreme abuse might make the same
decisions”.
[47]
Thus, while in the PRRA decision the Officer
found that the Applicant’s behaviour, by willingly going to help her ex-husband,
lacked a reasonable or natural explanation, such an explanation was in fact
found in the Expert Report, which was not referenced by the Officer. The
Officer did not accept the Applicant’s allegations of rape because it occurred after
the separation and was not reported to the police. The Expert Report also addressed
this issue. The Officer found that there was insufficient evidence to
establish that the Applicant had a well-founded fear that her ex-husband would
follow her to China to harm her, yet the Expert Report found her to be at high
risk should her ex-husband have access to her and that he had no intention of
leaving her alone.
[48]
While it was certainly open to the Officer to
have, with appropriate reasons, accorded the Expert Report little weight, she
did not do so, as she did not even reference the report in her reasons.
[49]
In the H&C decision under review in this
matter, the Officer again makes absolutely no reference to the Expert Report in
her analysis of the risk of domestic violence. She states that Mr. Peng was
not convicted of domestic violence and that there was little evidence that he
did not abide by the court order issued during the divorce and custody
dispute. The Officer makes no reference to the alleged sexual assault
addressed in the Expert Report, which would have occurred after the peace bond
had expired — possibly because of her finding in the PRRA decision, but she
does not state this.
[50]
As to the state protection analysis, this
consists only the Officer’s finding that “In addition
to having laws and legislation in place to protect its citizens from crime and
physical assault, China has a large police presence… It would be reasonable to
expect that the police would respond to the Applicant’s plea for help should
she find herself in need of their assistance”.
[51]
I agree with the Applicant that the Officer
failed to address evidence in the record indicating that domestic violence is a
significant problem in China and one that public security forces often ignore
(see for example UNHCR Refworld 2012 Country Reports on Human Rights Practices
– China (CTR p 394); UNHCR Refworld China: Commute Death Sentence in Domestic
Violence Case (CTR p 400)).
[52]
The Court owes deference to the RPD’s evaluation
of the evidence, and a decision-maker is assumed to have considered all of the
evidence before her (Florea v Canada (Minister of Employment and
Immigration), [1993] FCJ No 598 (CA)).
[53]
However, while a decision-maker is not required
to mention every piece of evidence before her, the more important a piece of
evidence that goes unmentioned, the more willing a court may be to infer from
the silence that the decision-maker made an erroneous finding of fact without
regard to the evidence (Cepeda-Gutierrez v Canada (Minister of Citizenship
and Immigration) (6 October 1998), Ottawa IMM-596-98 at paras 15-17 (FC); Packinathan
v Canada (Citizenship and Immigration), 2010 FC 834 at para 9).
[54]
In this case the Officer simply did not engage
with the content of the Expert Report or the question of the availability of
state protection in the context of domestic violence. Accordingly, her finding
was unreasonable.
[55]
It is of note that in response to the H&C
application Ms. Joana Fonkin, the Officer, filed an affidavit dated January 7,
2014. In it she states that it is her usual practice, when assigned both a
PRRA and an H&C application from the same party, to review the evidence
from both applications collectively before making either decision, and then to mention
the evidence in the decision(s) to which it was relevant. She then states that
she followed that practice in making the PRRA decision.
[56]
The Officer then goes further and states that
she found the Expert Report not to be relevant to the PRRA, as it did not
provide evidence that would assist in establishing that the Applicant faces a
risk in China and, therefore, did not mention it in the decision.
[57]
In my view, it is not open to the Officer to
provide reasons for her decision after the fact, this amounts to an effort to “remedy a defect in the decision by filing further and better
reasons in the form of an affidavit” (Abusaninah v Canada
(Citizenship and Immigration), 2015 FC 234 at para 50; Sellathurai v
Canada (Public Safety and Emergency Preparedness), 2008 FCA 255 at paras 46-47;
Kaba v Canada (Citizenship and Immigration), 2013 FC 1201 at para 9; Dinani
v Canada (Citizenship and Immigration), 2014 FC 141 at paras 6-7). Further,
the Expert Report was relevant to the question of whether the Applicant
continued to be at risk from her ex-husband.
[58]
However, the question that remains is whether
the Applicant established that she would be at risk of domestic violence from
her ex-husband, should she return to China.
[59]
Her motion for a stay of removal based on both
the H&C and PRRA decisions was denied by Justice Russell. He stated that
the real issue in both the H&C and PRRA was the risk and/or hardship that
the Applicant would face from Mr. Peng if she returned to China. Justice
Russell found that there was a serious issue arising from the question of
whether the Officer even considered the Expert Report in relation to the PRRA
decision and, if she did, whether she reasonably assessed and applied its
contents. However, the Expert Report spoke only to subjective fear and not to
reasonable grounds as to harm in China from Mr. Peng:
[6] In the PRRA Decision, the Officer
found that “there is little evidence to substantiate that Mr. Peng will travel
to China to harm the Applicant in the event that the Applicant returns to
China. I find this allegation of risk to be speculative.” Unfortunately, it
remains speculative for the Court when it comes to assessing irreparable harm.
[7] I can see that Mr. Peng behaved
in a despicable and highly threatening way during the matrimonial and custody
proceedings in Canada, and that there was even some suggestion he might return
to China. But there is later evidence that he has cooperated with the Applicant’s
efforts to remain in Canada and/or that he would like the Applicant to return
to China so that he can remarry and have another child. The Applicant fears he
will pursue her and harm her, but there is no clear and convincing,
non-speculative evidence that he will follow her to China, that he will be able
to locate her there, or that he intends to harm her if she returns.
[60]
It is, of course, correct that the Expert Report
does not purport to speak to the question of whether state protection is available
in China. Rather, it states that the risk to the Applicant arises “if her ex-husband were to have access to her” and
that Mr. Peng “has no intention of leaving Ms. Lai and
her daughter alone”.
[61]
The Officer states that Mr. Peng has not been
convicted of domestic violence and there is little evidence that he did not
abide by the court order issued during the divorce and custody battle. The
Officer gives little weight to Mr. Peng’s letter, as she found its content to
be open to interpretation and not to be written in a threatening fashion.
However, it was deemed sufficiently threatening by the police that they laid charges;
and while conviction on the uttering of death threats did not follow,
compliance with a peace bond was required. Further, it is difficult to accept
that statements such as “You want to deal with me by
legal means, while I wish to resort to non-legal means and even get ready to
end the relationship between you and me at the cost of bloody means” and
“However, you have thrown away the last life-saving straw”
as non-threatening. Further, the Officer does not address the alleged sexual
assault that subsequently occurred as described in the Expert Report.
[62]
Nor does the Officer address the letter of the
Applicant’s sister, either in the PRRA decision or the H&C decision, in
which she stated that Mr. Peng said that he would go back to China to kill the
Applicant and then would kill himself.
[63]
In my view, the Officer’s failure to address the
Applicant’s sister’s letter, to assess the Expert Report’s finding that Mr.
Peng had no intention of leaving the Applicant alone, and her treatment of Mr.
Peng’s letter was unreasonable, as it did not consider this evidence in the
context of the likelihood of whether Mr. Peng would return to China to harm the
Applicant, thereby resulting in hardship.
[64]
While a stay was not granted, the test for irreparable
harm was stated by Justice Russell being that there was no clear and convincing
non-speculative evidence that the Applicant’s ex-husband would pose a threat to
her in China. The test on an H&C determination is lower, being that of a “serious possibility of harm”.
[65]
Further, this Court has held, in a circumstance
where a stay was granted, that findings of fact made in the context of a stay
are not binding on the judge and on a judicial review proceeding as, on a stay,
the issues are not fully and finally argued and analyzed (Johnson):
[14] Justice Zinn’s comments on the
legal issue are made in the context of the test on a stay application of “serious
issue” — a low threshold. The findings on irreparable harm are also in the
context of a stay where the issues are not fully and finally argued and
analysed. Except in the clearest of cases, a judge’s comments on a stay do not
bind or necessarily impact the judge hearing the full judicial review. I do not
interpret Justice Zinn to have sought to bind the judicial review hearing nor
is this one of those “clearest cases”.
[66]
As I have concluded that the Officer’s decision
was unreasonable, I need not address the other issues raised by the Applicant.
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