Date: 20080513
Docket: IMM-1780-08
Citation: 2008
FC 607
Vancouver, British
Columbia,
May 13, 2008
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
YIN
BIN YANG
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY
PREPAREDNESS
Respondents
REASONS FOR ORDER AND ORDER
[1]
Yin Bin
Yang is seeking an order of this Court staying the execution of his removal
from Canada pending the hearing of his application for leave and judicial
review of a Pre-removal Risk Assessment decision. For the reasons that follow
his motion is dismissed.
I. Background
[2]
Mr. Yang is a citizen of the People's Republic of China. He arrived at Vancouver
International Airport on November 9, 1998. He was interviewed by an
immigration officer and was reported pursuant to section 20 of the former Immigration
Act because the officer was of the opinion that Mr. Yang had not complied
with the Act and Regulations in that he did not have a valid passport, travel
documents, or visa. An exclusion order was issued.
[3]
On November 12, 1998, Mr. Yang filed an application for leave and for
judicial review challenging the exclusion order. He also filed a motion to stay
the execution of the removal order. Both applications were dismissed. However,
the exclusion order and removal arrangements against Mr. Yang were subsequently
cancelled because Mr. Yang was then a minor, being under the age of 18.
[4]
Having expressed a desire to pursue a claim for Convention refugee
status, he was interviewed and filed a Personal Information Form with the
Convention Refugee Determination Division in support of his application for
refugee status.
[5]
His claim for refugee status was based on his alleged fear of
persecution because of his involvement in September 1998 in a demonstration in China
protesting the land expropriation in his town. On July 26, 1999, the Convention
Refugee Determination Division determined that Mr. Yang was not a
Convention refugee. Importantly, it found Mr. Yang's testimony was not
credible. An application for leave and for judicial review challenging the Convention
Refugee Determination Division decision was dismissed on January 28, 2000.
[6]
On September 26, 1999, Mr. Yang filed an application under the Post-determination
Refugee Claimants in Canada class. In January 2008, he was advised that this
had been transferred and was to be assessed as a Pre-removal Risk Assessment
(PRRA) pursuant to the Immigration and Refugee Protection Act, S.C.
2001, c. 27. He provided written submissions in support of the PRRA application.
In his submissions, he claimed in addition to his previous experience of being
wanted by the Chinese authorities for his land expropriation protest that he
was also at risk as he was now a practitioner of Falun Gong. He asserted a
feared persecution for both these reasons.
[7]
He attended an interview with a PRRA officer on March 18, 2008. Prior to
attending the interview he was advised that the purpose of the hearing was
to address questions with respect to his participation in demonstrations opposing
land expropriation in China, his practice of Falun Gong in Canada and his
knowledge of Falun Gong theory and practice. He was encouraged to bring “any
physical evidence relating to the areas mentioned”.
[8]
The PRRA officer rejected Mr. Yang’s application. He found that Mr. Yang
was not credible. He held:
I find that the applicant lacks
credibility: I do not believe the applicant when he tells me that he is wanted
by the Chinese authorities for protesting a land expropriation decision nor do
I believe the applicant when he tells me he is a practitioner of Falun Gong.
[9]
Mr. Yang has filed an application for leave and for judicial review of
that decision. Mr. Yang is currently scheduled to be removed from Canada
on May 15, 2008.
II. The Stay Application
[10]
The Applicant acknowledges that in order to be granted a stay of the
deportation order he must meet the tripartite test described in Toth v.
Canada (Minister of Citizenship and Immigration), (1988), 86 N.R. 302
(F.C.A.). He must establish that there is a serious issue to be tried, that he
will suffer irreparable harm if the stay is not granted, and that the balance
of convenience favours the granting of the stay.
III. Serious Issue
[11]
Mr. Yang offered two positions with respect to the question of a serious
issue: first that the officer erred in his findings of credibility and second
that there was a denial of procedural fairness as the credibility concerns were
not disclosed during the interview.
[12]
Counsel for Mr. Yang dissected the officer’s reasons for holding that
the Applicant’s evidence was not credible. He argued that each standing on its
own could not support the officer’s conclusion. However, a review of the record
clearly shows that there was not one aspect of his evidence that led the
officer to his conclusion; rather it was a number of the aspects of his
evidence that troubled the officer.
[13]
With respect to the alleged risk arising from the actions of the
Applicant in demonstrating against expropriation the aspects that troubled the
officer included:
- That despite the passage of ten years,
the Applicant had no evidence, other than his own testimony which had
previously been found wanting, to establish that the Chinese authorities had
been pursuing and were still pursuing him because of his participation in
a demonstration protesting land expropriation;
- That there was no evidence that
his family had ever suffered as a result of the Applicant’s alleged
demonstrations; and
- That there was no evidence as to what,
if anything, had happened to others who had participated in the
demonstration.
[14]
With respect to the alleged risk arising from the Applicant being a
practitioner of Falun Gong, the aspects that troubled the officer included:
- That the Applicant was able to
demonstrate a familiarity with only a few of the basic Falun Gong beliefs
and practices;
- That his evidence as to when he
became an adherent of Falun Gong was contradictory – he stated at the
interview that it was quite recent but stated in the PRRA narrative that
he had first taken lessons many years ago;
- That he claimed to have read “Zhaun
Falun” by Li Hong Zhi, yet could not answer any of the questions posed
regarding the claims made in therein about the supernormal powers yielded
by practitioners and the ability of practitioners to live extraordinary
long lives while retaining their youthful appearances; and, perhaps most
critically
- That the Applicant’s written PRRA
submissions were found to bear a striking resemblance to those of another
PRRA applicant who was known to the Applicant and the documents attached, which
the Applicant claimed he had downloaded from the internet, did not bear
the usual internet address markings, were not originals but photocopies,
and were identical (even to handwritten marks on them) to those submitted by
the other PRRA applicant.
[15]
A PRRA officer’s findings following a hearing are to be given
considerable deference. In this instance the officer closely examined the
evidence presented and responses given and analyzed those responses using the usual
and customary indicia of credibility. In my view, the findings made by the
officer were consistent with the evidence before him and fall clearly within
the range of reasonableness as set out by the Supreme Court of Canada in Dunsmuir
v. New Brunswick, 2008 SCC 9.
[16]
Mr. Yang submits that that the adverse finding respecting his
credibility was contrary to natural justice in that he was never given notice of
the requirement that he provide corroborating evidence. However, in the notice
of hearing dated March 4, 2008, Mr. Yang is clearly advised to provide any “physical
evidence” he has and it sets out the specific purpose of the oral hearing.
There is no support to Mr. Yang’s submission that he was denied procedural
fairness in the process adopted by the officer.
[17]
I am not convinced that Mr. Yang has established that he has a serious
issue to be tried in relation to his challenge to the officer’s decision.
IV. Irreparable Harm
[18]
Mr. Yang argues he will suffer irreparable harm because he will suffer
mistreatment in China on the two bases outlined previously and because his
underlying judicial review application will be rendered nugatory as a result of
his deportation.
[19]
Both the Convention Refugee Determination Division and the PRRA officer
considered Mr. Yang's allegations of risk on his return to China and both found
he was not at risk and that his alleged fears were not credible. I can see no
reason to find otherwise on the basis of the record before me.
[20]
The possibility that the judicial review proceeding will become moot if
the stay is not granted cannot form the basis for a finding of irreparable
harm: Selliah v. Canada (Minister of Citizenship and
Immigration), 2004 FCA 261 at para. 20 and El Ouardi v. Canada
(Solicitor General), 2005 FCA 42 at para. 8.
V. Balance of Convenience
[21]
In my view, the balance of convenience in this case favours the
Minister.
[22]
It is admirable that the Applicant has stayed in contact with
immigration officials during his long sojourn in Canada. He is also to be
commended for having made voluntary arrangements to return to China on May 15,
2008. Nonetheless, he has failed to establish any basis to remain in Canada
despite his many applications and proceedings over the last ten years. It is
time that the Minister’s obligations under the Act are fulfilled.
VI. Ancillary Matter
[23]
The Applicant sought an amendment to the application to add as a party The
Minister of Public Safety and Emergency Preparedness. Counsel for the Crown
consented and the amendment will be permitted.
VII. Conclusion
[24]
The Applicant has not established that he meets any of the three
elements of the tripartite test for a stay.
[25]
Therefore, it is ordered that this application for a stay is dismissed.
ORDER
THIS COURT
ORDERS that:
1.
The Minister of Public Safety and Emergency Preparedness is added
as a party to the Application for Leave and Judicial Review and to this
application; and
2.
This application for stay of the removal order is dismissed.
“Russel
W. Zinn”
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