Date: 20080417
Docket: IMM-2329-07
Citation: 2008 FC 499
Ottawa, Ontario, April 17,
2008
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
YEI
WAH LAU
Applicant
and
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
The
Applicant seeks judicial review of a PRRA decision which denied her application
for protection from removal to China. This application places the Applicant on
the “horns of a dilemma”: to succeed in her contention that the PRRA Officer
ignored or misunderstood certain evidence, the Applicant must introduce the
evidence or materials ignored, but those materials, an IRB Response to
Information Request (RIR), contain evidence consistent with the Officer’s
conclusions.
II. BACKGROUND
[2]
Ms.
Lau is a Chinese citizen who came to Canada in 1987. Her refugee
claim was declared abandoned in 1994. In 2006, the Applicant filed a PRRA
application claiming fear of persecution because (a) she was a Christian, (b)
she had two children in contravention of China’s family
planning policies, and (c) she left China illegally.
[3]
Ms.
Lau did not specify to which Christian denomination she belonged nor did she
indicate an intention to join either a registered church or an underground
church. The Officer assessed her risk in a variety of scenarios but concluded
that there was no more than a mere possibility of persecution.
[4]
In
regard to the Applicant’s alleged violation of China’s family planning
policies, the Officer found that people returning to China with foreign-born
children were generally exempt from these domestic policies. Even if Ms. Lau
was subject to these policies, the Officer concluded that she would face a
support fee (tantamount to a fine) which was not itself persecution.
[5]
Lastly,
the Officer found, based on documentary evidence, that for being an illegal
emigrant, Ms. Lau faced no more than a small fine or a brief period of
incarceration.
III. ANALYSIS
[6]
While
the parties agreed that the standard of review was patent unreasonableness,
these submissions were before the decision in Dunsmuir v. New
Brunswick,
2008 SCC 9. Although the standard of review is now clearly reasonableness,
nothing turns on the distinction between the two standards.
[7]
The
Applicant objects to the fact that the Officer chose to rely on passages from a
U.S. DOS Report despite the existence of the IRB’s own RIR document which the
Applicant says supports her claim of religious persecution, at least at
unregistered churches. The core of the Applicant’s complaint is that the Officer
was selective in the use of publicly available documents.
[8]
The
difficulty with the Applicant’s position is that (aside from having to put
materials in this application that were not before the Officer to show that
relevant publicly available documents were missed) the RIR provides evidence
that religious persecution is localized. The RIR, while showing that some
unregistered churches face persecution, contains evidence that persecution is
localized and not a general condition in China. Further, Guangdong, the
province from which the Applicant originates, is one of the most liberal areas
in China and
therefore persecution of any kind is unlikely.
[9]
The
Applicant’s position was further undermined by the fact that she never declared
to which church she belonged.
[10]
Therefore,
on the issue of religious persecution, it cannot be said that the Officer’s
decision was unreasonable.
[11]
The
Officer’s findings in respect of the breach of family planning policies were
based on the documentary evidence. The Applicant complains that the Officer
gave no reasons for her conclusion that the fee was not persecution. However, with
the burden of establishing persecution resting on the Applicant, Ms. Lau failed
to put forward any evidence that the fee was so large as to amount to persecution,
either as a general proposition or in regards to herself personally.
[12]
Moreover,
the Officer’s finding that the law against illegal emigration is one of general
application and not persecution is consistent with the decision in Cheung v.
Canada (Minister of
Employment and Immigration) (F.C.A.), [1993] 2 F.C. 314.
[13]
As
to the decision as a whole, it was balanced and thorough. The conclusions
reached were open to the Officer on the evidence.
IV. CONCLUSION
[14]
Therefore,
this judicial review will be dismissed. There is no question for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is dismissed.
“Michael
L. Phelan”
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