Date: 20070905
Docket: IMM-80-07
Citation: 2007 FC 885
Ottawa, Ontario, September 5, 2007
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
YONG JIN LONG
Applicant
and
THE
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Mr. Long came to Canada from China as a student in 2001. While
here, he became an adherent of Falum Gong, a practice which he says came to the
attention of the Chinese authorities when he returned home for a visit in the
spring of 2004.
[2]
This led him to seek refugee status upon his return to Canada. However, the Refugee Protection Division of the
Immigration and Refugee Board found that his story was not credible, that he
was not a bona fide Falum Gong follower, and that he was probably not
being sought in China for
his Falum Gong activities.
[3]
He then requested an updated pre-removal risk assessment
(PRRA). Again he was found not to be at risk. This is a judicial review of that
decision.
[4]
Counsel for Mr. Long raises three interrelated points: a)
the PRRA officer ignored some evidence; b) she failed to properly characterize
some of the evidence as being new; and c) she misconstrued the risk of
persecution which gave Mr. Long fear.
STANDARD
OF REVIEW
[5]
The determination of risk on return to a particular country
is fact-driven, and so commands considerable deference. On questions of fact,
the standard against which the decision should be reviewed is that of patent
unreasonableness (Kim v. Canada (Minister of Citizenship and Immigration),
2005 FC 437, [2005] F.C.J. No. 540).
DISCUSSION
[6]
A PRRA arises from section 113 of the Immigration and
Refugee Protection Act. An applicant may only present new evidence that
arose after the refugee claim was rejected, or was not reasonably available, or
that he could not reasonably be expected in the circumstances to have
presented.
[7]
The applicant presented letters from two members of Falum
Gong in Canada who confirmed that Mr. Long is a follower, and since January and
February 2005, respectively, had been practicing Falum Gong with them, and
others, at a park in Toronto. Undated photos were also presented which were said to show the applicant
at a meeting.
[8]
Although the letters were dated after the rejection of the
refugee claim, the content related to evidence that pre-dated the Board’s
hearing and decision. No explanation had been given to the PRRA officer as to
why this evidence was not available earlier. Consequently, the PRRA officer
held that these letters did not constitute new evidence.
[9]
Before me, it was submitted that although the letters
straddled a timeframe which both pre- and post-dated the decision rejecting Mr.
Long’s refugee claim, it was thought that they would not have been of much use
at that hearing because they did not relate to what had gone on in China.
[10]
The decision to reject that evidence was not unreasonable
and should not be disturbed.
[11]
The second piece of new evidence is a photocopy of a
summons to appear, which apparently had been addressed to Mr. Long at his
parents’ home in China and
delivered in January 2006, some four months after his refugee claim had been
rejected.
[12]
Given that the evidence had indicated that the last time
the authorities had visited Mr. Long’s parents’ home in China prior to the summons was in September 2004, it was not unreasonable
for the officer to treat this summons as a “magic bullet”. No evidence was
offered as to how Mr. Long came to receive this photocopy in Canada. Mr. Long argues that the officer was wrong in saying “…I
have assigned little weight to this piece of evidence”. Either weight should
have been assigned, or not assigned. There should have been no middle ground. I
agree. The language is simply a polite way of challenging the authenticity of
the document.
[13]
However, the officer went on to say that in any event there
was evidence on file that there would be no penalty for failing to comply with
a court subpoena of this type.
[14]
This leads to Mr. Long’s argument that the officer
misconstrued the risk. He does not fear being prosecuted for failing to respond
to a subpoena, while he was out of the country, but rather he fears being
persecuted for being a Falum Gong practitioner.
[15]
However, I find no reason to disturb the officer’s finding
that there was no evidence of new risk developments which were personalized to Mr.
Long and which had arisen since the negative refugee decision. The documentary
evidence did not reflect a change in country conditions, and the PRRA
application is not a second refugee hearing (Kaybaki v. Canada (Minister of Citizenship and Immigration), 2004 FC 32, [2004] F.C.J. No. 27).
ORDER
THIS COURT ORDERS that the application for judicial
review of the pre-removal risk assessment rendered 9 November 2006 is
dismissed.
“Sean
Harrington”
FEDERAL
COURT
NAME
OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-80-07
STYLE OF
CAUSE: YONG JIN LONG v.
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION ET AL
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: August 28, 2007
REASONS FOR ORDER
AND ORDER: HARRINGTON J.
DATED: September 5, 2007
APPEARANCES:
Mr. Clifford Luyt FOR
APPLICANT
Ms.
Margherita Braccio FOR RESPONDENTS
SOLICITORS OF RECORD:
Clifford Luyt
Barrister & Solicitor
Toronto, Ontario
FOR APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR
RESPONDENTS
Email this Content