Date: 20060620
Docket: IMM-6630-05
Citation: 2006 FC 752
BETWEEN:
LIAN FEN CHU
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
Pinard J.
[1] This is an application for judicial review of the decision of Immigration Officer Deborah Kimber (the officer), of Citizenship and Immigration Canada dated October 17, 2005, wherein the officer refused the applicant's H & C application for permanent residence in Canada.
[2] Lian Fen Chu (the applicant) is a 23-year-old citizen of China who was smuggled into Canada in January 2000, as a minor.
[3] The applicant was arrested by Citizenship and Immigration Canada (CIC) while she was being smuggled into the United States and was put in detention for about eight months.
[4] The applicant filed a refugee claim which was rejected by the Immigration and Refugee Board (the Board) in October 2000. In rejecting her claim the Board accepted that the applicant was a member of a social group which was made up of rural young women from China and that the applicant was a "very vulnerable member of society".
[5] On or about January 15, 2002, the applicant submitted an application for permanent resident status on humanitarian and compassionate (H & C) grounds. Her application included an affidavit from Michael Szonyi, an expert in Chinese Studies and International Relations who had been conducting academic research in Fujian, China since 1991, focusing at specific factors leading to emigration from that part of China. Mr. Szonyi's affidavit concludes that women from China are particularly vulnerable to become victims of trafficking and that young people who were initially sent to North America by their families and who returned to China find themselves facing even greater pressure to make another attempt to emigrate.
[6] The applicant also submitted an affidavit stating that her mother had been contacted by the smuggler who demanded payments from her family and made threats to harm the applicant if no payment was made.
[7] The applicant also submitted that her case should be reviewed in light of the international laws respecting trafficking of women.
[8] In July 2005, the applicant received the Risk Opinion Report from CIC Pre-Removal Risk Assessment (PRRA) Office. The Report concludes that the applicant may be subject to a fine or a short term of imprisonment for having violated Chinese exit and emigration laws, however, she would not face long term imprisonment or repercussions.
[9] The applicant then received a letter dated September 19, 2005 from CIC Scarborough asking for updated information about her case.
[10] The applicant's legal counsel submitted a letter dated October 17, 2005 to CIC Scarborough to provide the updated information.
[11] On October 18, 2005, the applicant received a letter dated October 17, 2005 from CIC Scarborough advising her that her H & C application had been refused.
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[12] The officer, after reviewing the information before her, concluded that the negative risk opinion made by the PRRA officer in 2005 was reasonable and that the applicant had shown some - but not sufficient - establishment in Canada to demonstrate that she would suffer undue hardship if required to leave Canada and apply for a visa in the normal manner. In coming to this conclusion, the officer also considered the fact that her family ties are in China, she did not demonstrate participation in community or volunteer activities and that she had not accumulated assets in Canada. Therefore, the officer refused her H & C application.
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[13] The Supreme Court of Canada determined in Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817, at paragraphs 57 to 62, that the standard of review for H & C cases is "reasonableness simpliciter".
[14] The Supreme Court also explained what constitutes an unreasonable decision at paragraph 56 of its decision in Canada(Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748:
. . . An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. . . .
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[15] According to the applicant, in the context of assessing H & C applications, the requirement of procedural fairness includes an obligation to consider all the evidence submitted. Where the officer has failed to consider submissions made by the applicants, the decision cannot be allowed to stand. This is so even in the absence of any alleged bias on the part of the decision-maker.
[16] The applicant first submits that the haste with which the officer rendered her decision - on the very day that the final submissions were received - after a 2 ½ year delay since the filing of the H & C application, casts serious doubt as to whether the officer considered the submissions that she made on the day of the decision.
[17] However, it is clear when the Field Operations Support System (FOSS) notes are read in their entirety that all of the information presented to the officer by the applicant and by the PRRA officer was carefully considered by the officer. The fact that the decision was made on the same day that the applicant's update was provided is not, by itself, evidence that these or other submissions were not considered by the officer in coming to her decision. In fact, the officer made reference to the updated submissions of the applicant and commented on the applicant's employment. Failure to refer to every piece of evidence or information is not necessarily fatal to the decision where it is clear that it has all been considered (see, for example, Hassan v. Canada (M.E.I.) (1992), 147 N.R. 317 (F.C.A.); Ozdemir v. Canada (M.C.I.), [2001] F.C.J. No. 1646 (C.A.) (QL); Cepeda-Gutierrez v. Canada (M.C.I.), [1998] F.C.J. No. 1425 (T.D.) (QL); and Miranda v. Minister of Employment and Immigration (1993), 63 F.T.R. 81). In this case, there was little new information that would have changed the applicant's entitlement to a positive H & C decision. Consequently, the applicant's first argument is without merit.
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[18] The applicant further submits that one of the basic principles in administrative law is that a decision-maker must come to his/her own decision after an independent analysis of the matter before him/her. This principle also applies to H & C cases. Most importantly, where the decision involves an assessment of risk of return, the officer making the determination under the H & C process must not simply rely on the risk opinion rendered by another officer if that decision is unreasonable (Khatoon v. Canada (M.C.I.), [2004] F.C.J. No. 1408 (T.D.) (QL)).
[19] However, in my opinion, the officer did assess the PRRA officer's risk opinion and found it reasonable. It was open to her to rely on this opinion to conclude that the applicant had not established that her risk of return to China would result in undue hardship.
[20] In my view, it was apparent from the risk opinion that the PRRA officer considered all information available. The fact that the applicant could be liable to a short term of imprisonment need not result in a positive risk opinion. The applicant is subject to laws of general application as long as these are not persecutory. The applicant has not demonstrated that her prosecution for illegal activity (leaving China) is persecutory or that the penalty to which she would be liable is so far out of proportion as to justify the granting of protection. It is therefore my opinion that there is no basis for judicial intervention with respect to the risk opinion or the manner in which the officer considered it in deciding that the applicant had not demonstrated that the risk of return would result in undue hardship.
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[21] In the case at bar, the officer concluded that the applicant would not face any risk if she were returned to China and that she has not established herself in Canada to the officer's satisfaction. The applicant submits that, in arriving at that conclusion, the officer ignored relevant evidence in the following manner:
- The officer relied on the PRRA officer's report in coming to the conclusion that the applicant faces no risk if returned to China and thereby ignored the evidence submitted on October 17, 2005 that the applicant's mother had been harassed by the smuggler;
- The officer ignored that the applicant was detained by CIC for over eight months in her first year of arrival and thereby unreasonably concluded that the applicant had not sufficiently established herself in Canada; and
- The officer ignored the fact that, when she first came to Canada, the applicant was a minor, and thereby unreasonably concluded that she had not sufficiently established herself.
[22] However, the officer did make reference to the applicant's submission that her mother had been harassed by the smuggler. This submission was also considered in the risk opinion. The fact that the submission was not adopted by either the officer or the PRRA officer does not mean that it was ignored; it simply was not persuasive.
[23] In my opinion, the officer, in concluding that the applicant had not established herself sufficiently in Canada to merit an exemption from the normal requirement that she apply for her visa from outside Canada, considered many factors - including the fact that the applicant's family ties were in China, and the fact that the applicant had not demonstrated community involvement. The officer credited the applicant with some establishment including the fact that she had lived in Canada for 4.5 years and that she would experience some hardship in rebuilding her life in China. However, as was open to the officer, she concluded that the hardship did not rise to the level that a positive H & C decision was warranted. It is my opinion that the applicant has not demonstrated that the officer ignored any evidence.
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[24] The applicant contends that in this case, no regard has been had to the safety of the applicant or to the legal proceedings that she might face upon return. Indeed, no comments were made by the officer in her decision about the applicability of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime, G.A. res. 55/25, annex II, 55 U.N. GAOR Supp. (No. 49), at 60, U.N. Doc. A/45/49 (Vol. I.) (2001), Article 3, (the Protocol) in her decision making process. If anything, the only relevant reference to this issue were the comments made by the PRRA officer who dismissed the serious risk to the applicant by focusing on the cleanliness of the prison facility in which the applicant may be detained in China. According to the applicant, the failure of the officer to even mention, let alone consider the Protocol, when it was specifically referenced by the applicant's counsel in her H & C submissions, constitutes a reviewable error.
[25] However, the respondent submits that the definition of trafficking as set out in the Protocol requires that the victim be exploited in some way - either directly or on consent where that consent is not informed or freely given. It involves the exercise of control over the victim. According to the respondent, the evidence provided by the applicant in this case falls far short of establishing that she was or is under the control of persons who engaged in trafficking to bring her to Canada. The only possible exploitation that can be gleaned from the record in this case is by the applicant's parents over five years ago when they arguably paid money to a smuggler to send the applicant to Canada when she was a minor. She is now an adult who has shown that she is capable of living independently of her parents. There is no evidence that she has been curtailed in her movement in Canada, living arrangements or educational pursuits by anyone. There is no evidence that she has been required (by anything other than market conditions) to work at any particular job. Therefore, the respondent submits that the Protocol has no application to this applicant and subsequently the officer was not required to refer to it in this case. I agree.
[26] The applicant has been in Canada for five years. Even if it was assumed that the applicant was a victim of trafficking in finding that she did not establish an H & C claim, there has been no breach of international trafficking law. There is no requirement to provide permanent residence for every person who has been the victim of trafficking, but only such a requirement in appropriate cases.
[27] The applicant has had three risk assessments - one by the Refugee Division in 2000, one in the form of a risk opinion by the PRRA officer in 2005 and one by the officer deciding the H & C application in 2005. Therefore it cannot be said that due regard has not been had for her safety.
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[28] It is my opinion that the officer did not make any reviewable error in the case at bar. Consequently, the application for judicial review is dismissed.
[29] Counsel for the applicant requests that the following questions be certified:
a) Does an immigration officer have a general duty to consider relevant international human rights instruments in determining whether or not there are sufficient humanitarian and compassionate considerations to warrant an exemption for an applicant from certain legislative requirements to allow the application for permanent residence to be processed from within Canada (the "H & C application")?
b) Does an immigration officer, in assessing an H & C application, have a duty to consider the Protocol to Prevent, Suppress and Punish Trafficking in Persons (the "Protocol"), when the applicant in question arrived in Canada as an unaccompanied minor through the arrangement of smugglers?
c) If there is no general duty to consider international human rights instruments, does an immigration officer, in assessing an H & C application, have a duty to consider the Protocol if submissions were specifically made by the applicant with respect to the Protocol?
[30] In the context of the above Reasons for Judgment, I agree with counsel for the respondent that the proposed questions are not questions of general importance which are also determinative of the within judicial review (see Zazai v. Minister of Citizenship and Immigration, 2004 FCA 89). Therefore, there is no certification.
"Yvon Pinard"
Ottawa, Ontario
June 20, 2006
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