Docket: IMM-4368-16
Citation:
2017 FC 287
Ottawa, Ontario, March 16, 2017
PRESENT: The
Honourable Madam Justice Strickland
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BETWEEN:
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BOTANG LIANG
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YUSHAN YAO
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Applicants
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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]
This is an application for judicial review of
the decision of a Senior Immigration Officer (“Officer”) of Immigration,
Refugees and Citizenship Canada dated August 12, 2016, declining the
Applicants’ request for permanent residence on humanitarian and compassionate
grounds (“H&C”) pursuant to s 25(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 (“IRPA”).
[2]
For the reasons that follow, this application
for judicial review is dismissed.
Background
[3]
The Applicants are citizens of China. Mr. Liang
(“Principal Applicant”) and Ms. Yao (“Female Applicant”) claim that they are at
risk of persecution in China because they are practitioners of Falun Gong.
Accordingly, they arranged to enter Canada using a “snakehead”,
arriving in August 2012. They subsequently entered into a relationship,
married in August 2014 and have a son, Jacky, who was born in Canada in March
2015. The Principal Applicant claimed refugee protection on September 24, 2012;
his claim was denied by the Refugee Protection Division (“RPD”) on March 24,
2014, and leave and judicial review of that decision was denied by this Court
on January 27, 2015. The Female Applicant claimed refugee protection on
September 26, 2012; her claim was denied by the RPD on September 30, 2014,
however, leave and judicial review of that decision was granted and this Court
determined, on September 21, 2015, that the RPD’s decision must be
re-determined by a differently constituted RPD panel. It appears that the
Applicants’ claims were not heard together by the RPD because, while for the
purpose of gaining entry into Canada they posed as newlyweds, the Applicants
claim that they actually did not know each other in China, went their separate
ways upon arrival in Canada and only later crossed paths again and began a
relationship.
[4]
The Applicants submitted their H&C
application on August 7, 2015. The Officer denied the application on August
12, 2016, at which time the RPD had not yet re-determined the Female
Applicant’s refugee claim. This is the judicial review of the August 12, 2016
H&C decision.
Decision Under Review
[5]
The Officer noted the Applicants’ submission
that they would suffer hardship if returned to China because they are Falun
Gong practitioners, which was the same basis for their refugee claims and the
Principal Applicant’s pre-removal risk assessment, and that discrimination or
adverse country conditions upon return to China, degree of establishment in
Canada, the best interests of the child and ties or residency in any other
country were the factors to be considered on the H&C application.
[6]
With respect to the Principal Applicant, the
Officer noted several factual findings made by the RPD including its
determination that the Principal Applicant’s claim lacked credibility, that he
was not wanted by the Chinese Public Security Bureau (“PSB”) for the practice
of Falun Gong in China and was not a Falun Gong practitioner in China.
Further, that the Principal Applicant is not a genuine Falun Gong practitioner
in Canada and that he can return to China without fear of persecution in that
he would not be perceived as a genuine Falun Gong practitioner by any authority
in China.
[7]
The Officer acknowledged the Principal
Applicant’s submission that he will incur hardship in China as a Falun Gong
practitioner and that his evidence included letters from fellow practitioners
in Canada stating that they regularly practice Falun Gong with the Principal
Applicant at Milliken Park in Toronto. However, the Officer found that this
was essentially the same information that was before the RPD and it did not
overcome its finding that the Principal Applicant is not a genuine Falun Gong
practitioner. The Principal Applicant also submitted a letter from his father
in China, dated 2014, indicating that the PSB continued to search for the
Principal Applicant and that his father could not obtain corroborating
documents, including a medical note and arrest warrant. The Officer found that
the letter did not say that the Principal Applicant’s father, or other family
members in China, incurred hardship from the PSB due to his Falun Gong
activities. Nor was there evidence that the Principal Applicant’s father or
others had been visited by the PSB looking for the Principal Applicant since
2014. The Officer found that the evidence provided by the Principal Applicant
did not support that he faces hardship in China because of his Falun Gong
beliefs to the extent that an exemption was justified.
[8]
As to the Female Applicant, the Officer first
noted that her RPD decision had been sent back for re-determination and, at the
time of the Officer’s assessment, that there was no indication that a decision
had been made. The Officer noted evidence from the Female Applicant’s friends
that she attends weekly Falun Gong practices at Milliken Park in Toronto as
well as updated photographs of the Applicants which they asserted showed them
engaged in Falun Gong related demonstrations and other activities. However,
the Officer held that, as also noted by the RPD, such participation does not
make one a genuine Falun Gong practitioner. Regardless, the Applicants did not
submit that the Chinese authorities were aware that they participated on an
unknown date in Falun Gong activities in Canada or that such information would
have been communicated to the authorities in China. The evidence provided by
the Applicants did not support that the Chinese authorities were aware of their
activities in Canada, that they are otherwise interested in the Applicants or
that they would incur hardship in China due to their Falun Gong activities in
Canada. Further, no evidence was provided by the Female Applicant to show that
the PSB had been interested in her whereabouts since her departure from China
in 2012.
[9]
The Officer also noted that, according to the
documentary evidence, as of 2015 Chinese authorities continue to harass, detain
and sentence family members and others in China who have contact or affiliation
with Falun Gong practitioners but that the Applicants’ evidence did not support
that their family members have been exposed to such treatment. As a result, it
was reasonable to expect that the Chinese authorities were not aware of whether
the Applicants are Falun Gong adherents in Canada or China and, therefore, that
they would not incur hardship upon return to China.
[10]
As to establishment, the Officer reviewed the
evidence but concluded that it did not support that the Applicants had
established themselves in Canada to an extent that severing their ties will
result in hardship that was not anticipated by the law or was beyond their
control.
[11]
The Officer also concluded that having Jacky
return to China with the Applicants would not adversely impact his best
interests such that an exemption was warranted. In particular, because the
Applicants had not provided corroborating evidence that they are of interest to
Chinese authorities because of their Falun Gong activities, the Officer also
found that the related claimed risks to Jacky were speculative and
unsupported. Further, that the objective evidence showed that Jacky would be
recognized as a Chinese citizen through his parents’ citizenship and, while
China does not recognize dual citizenship, the evidence did not show that Jacky
would be required to formally renounce his Canadian citizenship in order to
register as a Chinese citizen to access education, social, medical and other
services.
[12]
Overall, the Officer concluded that having
weighed all the facts and factors, an exemption was not warranted.
Issues and Standard of Review
[13]
Although in their written submission the Applicants
listed many issues, some of which were stated as being matters of procedural
fairness, in my view this application raises only one issue, being whether the
Officer’s decision is reasonable.
[14]
The standard of review of the decision of an
H&C officer is reasonableness (Basaki v Canada (Citizenship and
Immigration), 2015 FC 166 at para 18 (“Basaki”); Richard v Canada
(Citizenship and Immigration), 2016 FC 1420 at para 14). Reasonableness is
concerned mostly with the existence of justification, transparency and
intelligibility within the decision making process but also with whether the
decision falls 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).
Applicants’ Position
[15]
The Applicants submit that the Female
Applicant’s claim in respect of her activities in China and fear of returning
to China was ignored by the Officer and, therefore, no assessment of any
unusual, undeserved or disproportionate hardship was conducted in that regard.
The Officer was required to consider and weigh all the relevant evidence,
including facts adduced in refugee determination proceedings (Kanthasamy v
Canada (Citizenship and Immigration), 2015 SCC 61 (“Kanthasamy”),
but failed to do so.
[16]
The Applicants submit that the Officer erred by
treating Justice O’Reilly’s decision, requiring the RPD to re-determine the
Female Applicant’s refugee claim, as a neutral factor. By doing so, the
Officer failed to assess the underlying facts of the Female Applicant’s claim
in China in the overall assessment of her claim. Thus, important evidence of
country conditions and the resulting hardship to the Female Applicant if she
were returned to China were not considered (Cepeda-Gutierrez v Canada (Minister
of Citizenship and Immigration), [1998] FCJ No 1425 at para 17 (FCTD) (“Cepeda-Gutierrez”);
Tsiklauri v Canada (Citizenship and Immigration), 2016 FC 812 at para 14).
Failing to assess and appreciate her refugee claim in China caused the Officer
to commit further errors in the assessment of the Female Applicant’s sur
place claim in Canada, leading the Officer to conclude that she was not a
genuine Falun Gong practitioner in Canada. The Officer did not separate the
analysis of the sur place claim of the Principal Applicant and the
Female Applicant and treated both claims as one. The Applicants say that this
was unreasonable given that Justice O’Reilly had determined that the Female
Applicant’s refugee claim should be re-determined.
[17]
The Applicants submit that the Officer should
have waited until the re-determination of the Female Applicant’s claim by the
RPD and then reviewed the reasons given by the RPD to see if the factual matrix
had changed as regards to her claim for refugee protection. Or, the Officer
should have assessed the H&C claim on the basis of the facts as asserted by
the Female Applicant regarding her alleged persecution in China in the context
of Justice O’Reilly’s decision, which found several of the RPD’s adverse
conclusions unwarranted.
[18]
The Applicants submit that the effect of the
Officer’s failure to wait until the re-determination of the Female Applicant’s
claim for refugee protection was that the relative positions of the Principal
Applicant and their child were not properly factored in. In particular, had
the Officer waited, one of several relevant scenarios might have played out.
If the Female Applicant is granted refugee protection, she will be able to
remain in Canada with her child and the Principal Applicant’s H&C claim would
then be stronger as he would face the prospect of separation from his wife and
Canadian-born child. Alternatively, if the Female Applicant’s claim is denied
but on facts that are more favourable to her, such that she is recognized as a
Falun Gong practitioner but not one who the Chinese authorities are pursuing,
then the position of their child changes because Jacky then faces the prospect
of returning to China with a parent who is recognized as a Falun Gong
practitioner thereby increasing the risk to him of adverse conditions.
Respondent’s Position
[19]
The Respondent submits that the Officer’s
decision is reasonable. The Officer reviewed all of the evidence submitted in
support of the Applicants’ H&C application and found that it did not
support that the Chinese authorities were aware of their Falun Gong activities
in Canada or that they are otherwise interested in the Applicants. The Female
Applicant did not provide evidence to support that the PSB has been interested
in her since her departure from China in 2012. Nor did the Applicants advance
persuasive evidence demonstrating that they would be subjected to hardship in
China to the extent that it would justify an exemption under H&C
considerations or that they would have difficulty re-adjusting to life in
China. Ultimately, the Applicants did not meet their burden of showing that an
H&C exemption is warranted and are asking the Court to now re-weigh the
evidence.
[20]
The Respondent submits that there was no
requirement for the Officer to wait for a decision to be made on the RPD’s re-determination
and nor should the Officer speculate as to the outcome of that decision. Here
the Officer properly considered the evidence that was before him or her and
reasonably found that an exemption was not warranted. The Applicants’
arguments about the various speculative scenarios involving the re-determination
of the RPD claim have no merit on the H&C application and have no bearing
on the evidence they supported in their H&C application. The Officer also
noted that no decision had been made by the RPD at the time of the writing of
the decision. No violation of procedural fairness arises.
Analysis
[21]
I would first point out that nothing turns on
the content of Justice O’Reilly’s decision returning the Female Applicant’s
refugee protection claim to the RPD for re-determination. On judicial review
of a decision of the RPD, the role of this Court is to assess the procedural
fairness and/or reasonableness of that decision. Thus, while Justice O’Reilly
found that several of the RPD’s credibility and plausibility findings were
unsupported by the evidence, this resulted only in the finding that the RPD’s
decision was unreasonable and, therefore, that the matter was to be remitted
back to the RPD for re-determination. This Court did not, and does not, make
credibility or factual findings pertaining to claims for refugee status. Thus,
as to the Applicants’ submission that the Officer should have assessed the
H&C claim in the context of Justice O’Reilly’s finding that several of the RPD’s
adverse conclusions were unwarranted, this has no merit to the extent that the
Applicants are suggesting that Justice O’Reilly’s decision served to support
the Female Applicant’s allegations in her refugee claim.
[22]
Second, when appearing before me, counsel for
both parties agreed that on the particular facts of this matter, the Officer
was not precluded pursuant to s 25(1.2)(b) of the IRPA or otherwise, from
rendering the H&C decision while the RPD’s re-determination of the Female
Applicant’s claim was pending. More specifically, counsel for the Respondent
submitted that s 25(1.2)(b) of the IRPA did not apply because, at the time of
the submission of the H&C application in August 2015, Justice O’Reilly’s
decision in respect of the Female Applicant’s refugee claim had not yet been
rendered. And, in any event, the H&C application is based on the status of
the Principal Applicant who did not have a pending refugee claim. Further,
that the Female Applicant had the option of severing her application. Counsel
for the Applicants did not take issue with this. I would also note that s
25(1.2)(b) of the IRPA was not raised as a concern in the H&C application
or subsequent updates made to it.
[23]
Subsection 25(1) of the IRPA states that the
Minister may grant a foreign national permanent resident status, or an
exemption from any applicable criteria or obligations of the IRPA, if the
Minister is of the opinion that it is justified by H&C considerations,
taking into account the best interests of a child directly affected. This
relieves an applicant, on the basis of hardship, from having to leave Canada to
apply for permanent residence through the normal channels (Shrestha v Canada
(Citizenship and Immigration), 2016 FC 1370 at para 11; Rocha v Canada
(Citizenship and Immigration), 2015 FC 1070 at para 16; Basaki at
para 20). An H&C exemption is an exceptional and discretionary remedy (Canada
(Minister of Citizenship and Immigration) v Legault, 2002 FCA 125 at
para 15; Semana v Canada (Citizenship and Immigration), 2016 FC 1082 at
para 15 (“Semana”)) and the onus of establishing that an H&C
exemption is warranted lies with the applicant (Kisana v Canada (Citizenship
and Immigration), 2009 FCA 189 at para 45; Adams v Canada
(Citizenship and Immigration), 2009 FC 1193 at para 29; Semana at
para 16; D’Aguiar-Juman v Canada (Citizenship and Immigration), 2016 FC 6
at para 9).
[24]
In Kanthasamy, the Supreme Court of
Canada summarized the principles that are to guide an Officer’s discretion in
granting an H&C application. It also stated that there will inevitably be
some hardship associated with being required to leave Canada, however, this
alone will generally not be sufficient to warrant relief on H&C grounds (at
para 23). What will warrant relief under s 25(1) will vary depending on
the facts and context of each case and officers making such decisions must
substantively consider and weigh all of the relevant facts and factors before
them (Kanthasamy at paras 25 and 33; also see Marshall v Canada
(Citizenship and Immigration), 2017 FC 72 at para 33). The Supreme Court
of Canada also revisited the best interests of the child analysis required by s
25(1) finding that officers must be alert, alive and sensitive to the best
interest of the child, afford them significant weight, examine them in light of
all of the evidence, and take into account the context of the child’s personal
circumstances (Kanthasamy at paras 23-27 and 35-39).
[25]
In this matter, the Applicants primarily take
issue with the Officer’s H&C analysis on the basis that the Officer did not
take into consideration the impact that the pending re-determination by the RPD
of the Female Applicant’s claim will have on the hardship analysis. In that
regard, they submit that Kanthasamy is significant because it imposes a
broader test, in that all relevant factors must be considered by an H&C
officer, and the outstanding RPD re-determination was such a factor. Further,
because the Kanthasamy best interest of the child analysis confirms that
there should be no hardship to children.
[26]
On the latter point, I do not agree with the
Applicants that Kanthasamy stands for the proposition that the analysis
of hardship does not form part of the best interest of the child analysis or
that any degree of hardship to a child would necessitate a positive H&C
determination. In Estaphane v Canada (Citizenship and Immigration), 2016
FC 851, Justice Southcott stated that Kanthasamy prohibits employing the
threshold of “unusual and undeserved hardship”
in considering the best interests of a child, in effect, thereby requiring
demonstration that the hardship imposed on a child reaches a certain level.
However, that Kanthasamy does not prohibit consideration of hardship
that a child may face as a result of circumstances under consideration. In
fact, often such hardship that is argued by an applicant to support a
particular result being in the best interests of a child (at para 34).
[27]
Here the Officer was required to consider all of
the evidence before him or her and to weigh all of the relevant facts and
factors in order to determine if an exemption on H&C grounds was warranted.
[28]
I am satisfied that the Officer’s reasons
demonstrate that he or she considered all of the factors advanced by the
Applicants in support of their H&C grounds. In particular, the Officer
addressed their submissions concerning the hardships they and their Canadian
child would face in China given their profiles as Falun Gong practitioners.
The Officer also considered their establishment in Canada and weighed this
against their family and ties to China. The Officer also addressed in some
detail the best interests of the child. The Officer identified that Jacky
would have the love and support of both his parents and grandparents in China
and that the documentary evidence showed that he would have access to education
and social services as he could seek Chinese citizenship through his parents.
As the Officer did not find that there was sufficient evidence to show that the
Applicants were of interest to Chinese authorities because of their Falun Gong
activities either in China or Canada, the Officer did not find that Jacky’s
best interests would be compromised based on the evidence advanced concerning
the hardships faced by children of Falun Gong practitioners.
[29]
The Officer also specifically considered the
Female Applicant and the evidence she adduced in support of the H&C claim.
It is significant that the Officer did not rely on the RPD’s decision
concerning the Principal Applicant when considering the Female Applicant’s
submissions and the evidence submitted in support of the H&C application. And,
with respect to the Principal Applicant, the Officer referred to the RPD’s
negative credibility findings including its finding that he was not a Falun
Gong practitioner in China and is not a genuine Falun Gong practitioner in
Canada, and found that the evidence submitted in support of the H&C
application did not overcome those findings.
[30]
As to the outstanding re-determination by the
RPD of the Female Applicant’s claim, this was acknowledged by the Officer who
then went on to assess her evidence provided in support of the H&C
application. I am not convinced by the Applicants’ submission that the Officer
was required to consider, as a factor in the H&C assessment, the various
potential outcomes of the RPD’s re-determination.
[31]
While an officer can consider an RPD decision and
the underlying facts adduced in that proceeding, an H&C application is not
determined by or dependent upon the findings of the RPD (Kanthasamy at
para 51). And, in this situation, while it may have been preferable to have
awaited the outcome of the RPD’s re-determination, the parties agree that the
Officer was not required to do so. Thus, what the Applicants seek is that the
Officer, as part of the H&C assessment, speculate as to the possible
outcomes of the RPD’s re-determination and factor this speculation into his or
her decision. I cannot see how this can be so. What if the Officer were to
speculate that the RPD would again reject the Female Applicant’s claim and then
utilize that as a factor in his or her decision? Clearly that would be
unreasonable. Similarly, speculation that the Female Applicant’s claim would
succeed, in whole or in part, must also be unreasonable. I would also note
that pursuant to s 25(1.3) of the IRPA when examining an H&C request, an
officer may not consider the factors that are taken into account in the
determination of whether a person is a Convention refugee under s 96 or a
person in need of protection under s 97(1), but must consider elements related
to the hardships that affect the foreign national (also see Kanthasamy
at paras 24 and 51). In these circumstances, no error arises from the
Officer’s failure to speculate as to the outcome of the Female Applicant’s
claim prior to rendering a decision.
[32]
The Applicants also assert that the Officer
ignored the evidence submitted in support of the Female Applicant’s claim that
she is at risk because she is a Falun Gong practitioner. However, the Officer
noted that the Female Applicant’s submissions included letters from friends
informing that she attends weekly Falun Gong practices at Milliken Park as well
as several updated photos which the Applicants asserted were of them engaging
in Falun Gong demonstrations and exercises and distributing Falun Gong
materials. The Officer stated that the photos had been reviewed but, as noted
by the RPD, such participation does not make one a genuine Falun Gong
practitioner. The Officer found that the photos did not necessarily support
that the Applicants are genuine Falun Gong practitioners in Canada or that they
were in China. Regardless, the Applicants had not informed that the Chinese
authorities are aware that they participated on an unknown date in Falun Gong
activities in Canada or that such information would be communicated to the
authorities in China. There was no evidence provided to show that the
Applicants were photographed by Chinese officials or were approached by them.
[33]
Further, that country condition documentation
showed that, as of 2015, Chinese authorities continue to harass, detain and
sentence the parents and family members of those who have contact or are
affiliated with Falun Gong practitioners. However, that the Applicants’
evidence did not support that their family members or friends had been exposed
to such treatment. The Officer found that the evidence provided by the
Applicants did not support that the Chinese authorities are aware of their
activities in Canada, that they are otherwise interested in the Applicants or
that the Applicants would incur hardship in China due to their Falun Gong
activities in Canada. Further, that the Female Applicant had not provided
evidence to support that the PSB has been interested in her whereabouts since
her departure from China in 2012.
[34]
The Officer concluded that the Applicants had
not advanced persuasive evidence demonstrating that they would be subjected to
hardship in China to the extent that it would justify an exemption on H&C grounds.
[35]
It is true that the Officer does not explicitly
mention every document submitted with the H&C application, which included
an affidavit of the Female Applicant. However, there is a presumption that the
Officer considered all of the evidence (Pusuma v Canada (Citizenship and
Immigration), 2015 FC 658 at para 56; Newfoundland and Labrador Nurses’
Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 16).
The presumption is rebuttable where an officer fails to address critical evidence
that contradicts conclusions made by the officer and the reviewing Court
determines that its omission means that the officer did not have regard to the
material before him or her (Cepeda-Gutierrez at paras 14-17; Andrade
v Canada (Citizenship and Immigration) 2012 FC 1490 at paras 8-10). The
Female Applicant’s affidavit describes her claim that she practiced Falun Gong
in China, that in June 2016 the PSB went to her parents’ home when she was not
there and told her father that she was to report to them. Her father told her
the other members of her group had been arrested and that she should go into
hiding. She did this for two months before fleeing China, her parents told her
the PSB had continued to look for her during that time. The affidavit also
speaks to her concern about her son’s future in China based on her belief that
he has no status there and may face persecution because the PSB knows his
parents are Falun Gong practitioners. All of this information was also
included in the written submissions of counsel accompanying the H&C
application.
[36]
While the Officer did not explicitly refer to
the Female Applicant’s evidence that the PSB had looked for her while she was
in hiding for two months in 2012, the Officer did state that the Female
Applicant had not provided any evidence to support that the PSB was interested
in her whereabouts since she left China in 2012. This is correct and her
affidavit, dated April 22, 2015, does not address this. This finding by the
Officer also implies that the Officer was aware that the Female Applicant
claimed that the PSB had been looking for her prior to her leaving China,
indeed, it was the very reason why she claims that she left. The only evidence
addressing any continued interest by the PSB was from the Principal Applicant’s
father, concerning the Principal Applicant, which the Officer addressed.
[37]
The Officer found, after noting a lack of
evidence that the Applicants’ family members have been targeted because of the
Applicants’ Falun Gong activities, that it was reasonable to expect that the
Chinese authorities were not aware that the Applicants are Falun Gong adherents
in Canada or China and, therefore, they would not incur hardship upon return to
China. Thus, on its face, this appears to contradict the Female Applicant’s
evidence that the PSB was looking for her in China in relation to her practice
of Falun Gong. However, viewing the decision in whole and this finding in
context, in my view, it is apparent that the Officer was aware that the Female
Applicant claimed that the PSB had looked for her in China but was primarily
concerned with the insufficiency of evidence provided by the Female Applicant
supporting a continued interest by the PSB or a new interest arising from her
activities in Canada. The Officer also noted the Female Applicant’s evidence
that she had been practicing Falun Gong in Canada but reasonably discounted
this evidence on the basis that this does not necessarily mean that the
Applicants are Falun Gong practitioners in Canada or in China. And, as noted
above, the Officer also considered her evidence and assertions as to hardship
in addition to, but distinct from the adverse credibility findings that had
been made by the RPD with respect to the Principal Applicant which he had not
overcome with the evidence submitted in support of the H&C application. For
these reasons I do not accept the Applicants’ submission that the Officer
ignored the Female Applicant’s evidence when reaching his or her decision.
[38]
In my view, the decision explains how and why
the Officer arrived at his or her conclusion that an H&C exemption was not
warranted, being that the Applicants failed to satisfy their evidentiary
burden. The decision is intelligible, justified and transparent and it falls
within the range of possible, acceptable outcomes that are defensible on the
facts and the law. Accordingly, this Court will not intervene.
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