Date:
20121012
Docket:
IMM-8229-11
Citation:
2012 FC 1193
Ottawa, Ontario,
October 12, 2012
PRESENT: The
Honourable Mr. Justice Rennie
BETWEEN:
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JIA XIN YU
XIAO FENG SUN
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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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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
applicants seek judicial review of a decision of a Senior Immigration Officer
(Officer), dated October 1, 2011, refusing their application for permanent residence
on humanitarian and compassionate (H&C) grounds pursuant to section 25 of
the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA).
For the reasons that follow the application is dismissed.
Facts
[2]
The
applicants are Chinese citizens who met in Canada. They entered into a common
law relationship in 2007 and have three Canadian children. At the time of the
H&C decision the children were four years old, two years old and ten months
old. Mr. Sun also has one adult child living in China.
[3]
Ms.
Yu entered Canada in 2003 and Mr. Sun arrived in 2004. Each unsuccessfully
claimed refugee protection on the basis of religious persecution, Ms. Yu as a
Christian and Mr. Sun as a practitioner of Falun Gong.
[4]
Mr.
Sun also had a negative Pre-Removal Risk Assessment (PRRA). He failed to
appear for removal in 2009 and was arrested and released shortly after.
Decision Under Review
[5]
The
applicants advanced several grounds in support of a favourable H&C decision;
the effect of the one-child policy, their inability to practice their religion,
the family’s establishment in Canada and the best interest of their minor
children.
[6]
On
the issue of risk, the Officer concluded that the applicants had not
established that they would be at risk of religious prosecution. In coming to
this conclusion, the Officer had regard to the following considerations:
·
Ms.
Yu applied for refugee protection on the basis of her Christian faith. She
alleged that the Public Security Bureau (PSB) had raided her underground
church. Her claim was denied on the basis of identity.
·
In
his refugee application, Mr. Sun claimed that the PSB had raided his Falun Gong
group. His claim was denied on the basis of credibility.
·
In
Canada, Ms. Yu and Mr. Sun are practicing Christians.
·
China is officially
atheist but Protestant Christianity is one of the five recognized religions.
Unregistered churches are considered illegal.
[7]
With
respect to the risk of forced sterilization or abortion, the Officer noted
that: China’s family planning policies generally restrict families to one
child, but families may legitimize extra-policy births by paying a fee. In Guangdong Province, the monetary penalty has increased. Some local officials resort to
forced abortion and sterilization to meet birth targets. Chinese couples who
have children abroad may not be subject to this policy, and documentary
evidence stated that they can return to China with more than one child without
any serious problems
[8]
Regarding
establishment, the Officer gave positive consideration to their employment,
home ownership, community involvement, education activities and their letters
of support. However, the Officer noted that the applicants’ prolonged stay in Canada was within their control. The Officer concluded that this factor would not lead to
unusual, undeserved or disproportionate hardship.
[9]
The
Officer also considered the best interests of the applicants’ minor children.
The children have dual citizenship and are quite young and adaptable. They had
been exposed to Chinese culture and Cantonese by their parents. Additionally,
they have family in China to facilitate their adjustment. The Officer
determined that the applicants did not establish that relocating and resettling
in China would cause a significant negative impact on their children.
[10]
The
Officer determined that the applicants could re-establish themselves in China. Though the family may experience hardship, the evidence did not establish that the
hardship would be unusual, underserved or disproportionate.
Issue
[11]
The
issue for this judicial review is whether the Officer reasonably decided to
deny the H&C application: Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190.
Analysis
Risk Relating to
Religion
[12]
The
applicants submit that the Officer failed to adequately consider the risk they
may face in China as a result of practicing Christianity.
[13]
The
Officer summarized the submissions and issues in respect of the practice of
both Christianity and Falun Gong in China. That summary noted that Protestant
Christianity is a recognized religion and there are registered Christian
churches. Private bible study and prayer groups are permitted.
[14]
The
Officer acknowledged that unregistered churches may be raided as illegal
gatherings. However, the applicants are not members of an unregistered Chinese
church. There is no evidence that their Canadian congregation has any
affiliation to a Chinese church and that it would be speculative to presume
that the applicants might choose to join an unregistered, as opposed to a
registered, church.
[15]
Contrary
to the applicants’ submission, the Officer did make a finding on whether the
applicants faced a risk as a result of their religion. The Officer concluded
that the applicants had not established that they would be at risk for any reason
in China.
Risk Relating to
Family Size
[16]
The
documentary evidence stated that Chinese families who have more than one child
outside of the country can return without serious problems. The Officer was
entitled to give this evidence significant weight in concluding that the
applicants had not established that they faced risk in China.
[17]
The
applicants submit that the Officer did not specifically address the risk of
forced sterilization. However, the Officer did consider the evidence on this
issue and noted that forced sterilization is infrequent. Other than the
general fact that forced sterilization still sometimes occurs, the weight of
the evidence was in respect of tolerance in the case of foreign born
children.
[18]
Finally,
the applicants argue that many sanctions for breaking the one-child policy are
extralegal and not amenable to “tidy predictions.” This is true, but cannot be
a reason to engage in speculation. The Officer could only consider the
available evidence. That evidence reasonably led him to conclude that the
applicants do not face risk.
Best Interests
of the Children
[19]
The
applicants submit that the children may be unable to “exercise their Canadian
nationality if they travel to China with their parents.” The applicants
speculate that China’s exit controls may prevent them from ever returning to Canada and that the social and educational consequences of moving to China would constitute undue
hardship. The applicants also submit that the Officer failed to consider that
the children would face challenges resettling in Canada.
[20]
These
arguments would require the Officer to engage in speculation. There is no
evidence that the children would ever be personally targeted by exit controls.
There is also no evidence as to when or if they might wish to return to Canada or under what circumstances, assuming that they now leave with their parents.
[21]
The
applicants also submit that China does not recognize dual citizenship. While China may not recognize that the children are also Canadian, the applicants have not demonstrated
that the children will be forced to give up that status or otherwise be
negatively affected by China’s policy in this regard.
[22]
Contrary
to the applicants’ arguments, the Officer gave full and careful consideration
to the best interests of their children. The findings in this regard are
reasonable.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review be
and is hereby dismissed. No question for certification has been proposed and
none arises.
"Donald J.
Rennie"
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