Date: 20100804
Docket: IMM-5784-09
Citation: 2010 FC 799
Ottawa, Ontario, August 4,
2010
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
QING
RONG WANG
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
The
Applicant seeks judicial review of a negative Pre-Removal Risk Assessment
(PRRA) on the grounds that the Officer erred in her interpretation and
application of “new evidence” under s. 113(a) of the Immigration and
Refugee Protection Act (IRPA). The issue that s. 113(a) is contrary
to the Canadian Charter of Rights and Freedoms was abandoned.
II. BACKGROUND
[2]
Mr.
Wang, a citizen of China, claimed refugee protection upon his arrival in
Canada on February
15, 2003. The basis of his claim was that he feared persecution on account of
being a Christian and for his political opinions. Specifically, he alleged that
he was wanted in China by the Public Security Bureau (PSB) for these
reasons.
[3]
The
Refugee Protection Division (RPD) rejected his refugee claim because of
significant credibility concerns due to multiple inconsistencies between his
oral testimony and his PIF. They also found his story to be implausible. This
was particularly so in respect of his claim that a PSB summons had been left at
his home but that his mother had torn it up.
No
application for judicial review was filed in respect of the RPD decision.
[4]
Subsequently
the Applicant fathered two children, married and his wife was pregnant with a
third child at the time of the PRRA decision. His wife attempted to sponsor Mr.
Wang but this was rejected in February 2008 because of his significant criminal
record which included failure to comply, break and enter, possession of
break-in instruments and drug possession. A model candidate he was not.
[5]
The
PRRA application was filed on September 11, 2009 and denied on October 15,
2009.
[6]
The
PRRA decision noted the previous credibility issues at the RPD. The Officer
found that the risk asserted was the same as that presented to the RPD. In
particular, the allegation that Mr. Wang was wanted by the PSB had been the
same claim as dealt with by the RPD.
[7]
The
“new evidence” relied upon by the Applicant was a summons for him in China which post-dated
the RPD decision and which was issued in September 2009, at the time of the
PRRA application.
[8]
The
Officer noted the grainy nature of the photocopy; the absence of evidence
explaining how the document could have been transmitted to Toronto and
translated so quickly when the Applicant had no family in China to receive the
document; the convenient timing of the summons’ arrival; and the listing of his
address in China despite not having lived there for six years.
[9]
The
Officer noted the Board’s RIRs on the manufacture, production, distribution and
use of fraudulent documents particularly in Fujian province
(the Applicant’s home province). The types of fraudulent documents covered
included home residency cards, permits and identification documents but summons
were not specifically listed.
[10]
Finally,
the Officer noted that although country conditions showed continuing human
rights abuses, the circumstances were not materially different from those at
the time of the Applicant’s RPD decision.
III. ANALYSIS
[11]
It
is by now somewhat trite law that the standard of review for a PRRA decision
overall is reasonableness. However, where there are issues of law or procedural
fairness within the PRRA decision, these must be determined on a standard of
correctness. (See Aleziri v. Canada (Minister of Citizenship and
Immigration), 2009 FC 38; Canada (Minister of
Citizenship and Immigration) v. Patel, 2008 FC 747; Shaiq
v. Canada (Minister of
Citizenship and Immigration), 2009 FC 149)
[12]
It
is unclear from the decision whether the Officer articulated the proper legal
test in respect of “new evidence” under s. 113(a). The Officer appears
to suggest that an applicant can only raise a “new risk”.
[13]
If
that was the Officer’s conclusion, it would be an error of law. Section 113(a)
is clear on its face that in the circumstances of a rejected refugee claim, an
applicant can only present new evidence that arose after the rejection,
or was not reasonably available or could not reasonably be expected to be
presented at the time of the rejection.
|
113.
Consideration of an application for protection shall be
as follows:
(a) an applicant
whose claim to refugee protection has been rejected may present only new
evidence that arose after the rejection or was not reasonably available, or
that the applicant could not reasonably have been expected in the
circumstances to have presented, at the time of the rejection;
|
113.
Il est disposé de la demande comme il suit :
a)
le demandeur d’asile débouté ne peut présenter que des éléments de preuve
survenus depuis le rejet ou qui n’étaient alors pas normalement accessibles
ou, s’ils l’étaient, qu’il n’était pas raisonnable, dans les circonstances,
de s’attendre à ce qu’il les ait présentés au moment du rejet;
|
[14]
As
Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA
385 makes clear, the “new evidence” would include evidence that would have
countered a finding by the RPD.
[15]
Despite
the Officer’s questionable articulation of the legal test, she in fact applied
the correct test in dealing with the “new evidence” being the summons. Had it
been otherwise, this Court would have granted the judicial review.
[16]
The
Applicant claims that as credibility was in issue, pursuant to s. 113(a)
of IRPA and s. 167 of the Regulations, the Applicant was entitled to a
hearing interview.
[17]
Credibility
was in issue here but not by virtue of the new evidence but because the RPD had
found the Applicant to be not believable. It was the Applicant’s burden to
displace this finding with sufficient new evidence.
[18]
The
Officer’s treatment of the summons was correct in law and reasonable. She did
not find the Applicant not to be credible in respect of the summons but that
the creation and source of the document was questionable and its timing
remarkably convenient.
[19]
In
determining whether credibility was truly in issue, since the term is often
loosely used to cover a broad range of admissibility issues, the Court must
determine the true basis of the decision. In this case, the Officer’s finding
was as to the sufficiency of the evidence and the weight to be given to that
evidence.
[20]
The
factors considered including the RIRs were reasonable and relevant. Although
summons was not listed as one of the types of fraudulent documents, it is
logical that if almost all other types of government documents might be
fraudulent, there is a reasonable chance that fraudulent summons might be
created. Against that background, the Officer’s conclusion as to sufficiency
and probity was reasonable.
IV. CONCLUSION
[21]
This
application for judicial review will be dismissed. There is no question for
certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application for judicial review is dismissed.
“Michael
L. Phelan”
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