Date: 20080408
Docket: IMM-3342-07
Citation: 2008 FC 450
Toronto, Ontario, April 8,
2008
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
HANQUAN
LIANG
AN LI OU
(a.k.a. ANLI OU)
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the Act), for judicial review of
a decision by the Refugee Protection Division of the Immigration and Refugee
Board (the Board), dated July 24, 2007, wherein the Applicants’ were found not
to be Convention refugees nor persons in need of protection.
BACKGROUND
[2]
The
Applicants, a husband and wife, are citizens of the People’s Republic of China aged 76 and
65 respectively.
[3]
In
September 2001, the Applicants’ daughter was accused of Falun Gong activities
in China. She
subsequently claimed and was granted refugee status in Canada in 2002.
[4]
Beginning
in September 2001, the Applicants allege the following occurrences, all
stemming from their daughter’s implication in Falun Gong activities:
·
The Public
Security Bureau (PSB) questioned them regarding their daughter’s whereabouts
and her Falun Gong activities.
·
The PSB
threatened to stop their pensions, cut off their electricity, and deny them
health care.
·
Their
eldest son was dismissed from his job.
·
The male
applicant, after being hospitalized in 2004, was forced to pay medical expenses
in the amount of approximately 20 000 Renminbi (RMB) that would ordinarily have
been covered by his work unit.
[5]
The
Applicants suffer from a variety of health problems which they allege are
exacerbated by their situation in China, including multiple chronic
disorders of the heart and blood, high blood pressure, and anxiety.
[6]
The
Applicants arrived in Canada on May 28, 2005 and claimed refugee
protection on May 30, 2005.
[7]
In
a decision dated July 24, 2007, the Board found that the Applicants were
neither Convention Refugees nor persons in need of protection pursuant to s.96
and s.97 of the Act.
[8]
The
Board accepted the Applicants’ allegations but concluded that the pattern of
harassment which they had been subjected to did not amount to persecution.
More particularly, the Board noted that there was no evidence indicating that the
PSB threatened the Applicants with interrogation, arrest or incarceration.
There was also no evidence that the Applicants were under any form of
surveillance, or that their liberty was restricted in any way. Further, the Applicants
were able to obtain passports without difficulty: before arriving in Canada in 2005, the
female applicant traveled to Canada in 2002, and the male applicant traveled to
Hong
Kong,
Malaysia, and Singapore in 2005.
[9]
Despite
threats made by the PSB, there was no evidence, beyond the one instance of
non-payment of the male applicant’s medical expenses, that the Applicants
suffered any economic deprivation.
[10]
The
Board indicated that the Applicants fear relates to ongoing discrimination and
harassment, not persecution. Further, given that their daughter was in Canada with no
intention of returning to China, the interest of the PSB will, more likely
than not, diminish over time.
[11]
The
Applicants raised a number of issues in their memorandum of fact and law;
however, for the purposes of the present judicial review, the most relevant is
whether the Board erred in concluding that the discrimination and harassment
suffered by the Applicants did not amount to persecution.
STANDARD
OF REVIEW
[12]
It
has long been held that “the identification of persecution behind incidents of
discrimination or harassment is not purely a question of fact but a mixed
question of law and fact, legal concepts being involved” (Sagharichi v.
Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 796
(QL), at para. 3) and is reviewable on the standard of reasonableness simpliciter
(Herczeg v. Canada (Minister of Citizenship and Immigration), 2007
FC 2000, [2007] F.C.J. No. 1434 (QL), para. 17; Hitti v. Canada
(Minister of Citizenship and Immigration), 2006 FC 1256, [2006] F.C.J. No.
1580 (QL), at para. 29).
[13]
In
light of the recent shift in the law of judicial review in Canada, as set out
in Dunsmuir v. New Brunswick, 2008 SCC 9, there are
now solely two standards of review: reasonableness and correctness.
Instructively, the Supreme Court of Canada indicated the following as a guide
to determine the appropriate standard of review:
[…] questions of fact, discretion and
policy as well as questions where the legal issues cannot be easily separated
from the factual issues generally attract a standard of reasonableness while
many legal issues attract a standard of correctness. Some legal issues
however, attract the more deferential standard of reasonableness. (at para.
51).
[14]
Further,
at para. 62, the Court highlighted that the process of judicial review occurs
in two stages:
First, courts ascertain whether the
jurisprudence has already determined in a satisfactory manner the degree of
defence to be accorded with regard to a particular category of question.
Second, where the first inquiry proves unfruitful, courts must proceed to an
analysis of the factors making it possible to identify the proper standard of
review.
[15]
Thus,
based on the prior jurisprudence and the nature of the question as one of mixed
fact and law, I am of the view that the standard of review applicable to the
issue of whether discrimination or harassment amounts to persecution is
reasonableness. Pursuant to
this standard,
the analysis of the Board’s decision will be concerned with “the existence of
justification, transparency and intelligibility within the decision-making
process [and also with] […] whether the decision falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law” (Dunsmuir, above, at para. 47).
ANALYSIS
[16]
At
the outset, it is important to remember that “the dividing line between
persecution and discrimination or harassment is difficult to establish, the
more so since, in the refugee law context, it has been found that discrimination
may very well be seen as amounting to persecution” (Sagharichi, above,
at para. 3).
[17]
In
Rajudeen v. Canada (Minister of Employment and Immigration), [1984]
F.C.J. No. 601 (QL), the Federal Court of Appeal provided a definition for the
term “persecution”, undefined in the Act, with reference to the Living Webster
Encyclopedic Dictionary and the Shorter Oxford English Dictionary:
“To harass or afflict with repeated acts
of cruelty or annoyance; to afflict persistently, to afflict or punish because
of particular opinions or adherence to a particular creed or mode of worship.”
[…] A particular course or period of systematic infliction of punishment
directed against those holding a particular (religious belief); persistent
injury or annoyance from any source.
Further, in Canada (Attorney
General) v. Ward, [1993] 2 S.C.R. 689, [1993] S.C.J. No. 74 (QL), at para.
63, Justice LaForest endorsed a definition of persecution as “sustained or
systemic violation of basic human rights demonstrative of a failure of “state
protection”.”
[18]
It
is true that the cumulative effects of discrimination and harassment may fulfil
the definitional requirements of persecution in some circumstances, even where
each incident of discrimination or harassment taken on its own would not (Sarmis
v. Canada (Minister of Citizenship and Immigration), 2004 FC 110, [2004]
F.C.J. No. 109 (QL), at para. 17; Bobrik v. Canada (Minister of Citizenship
and Immigration), [1994] F.C.J. No. 1364 (QL), at para. 22; Retnem v.
Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 428
(QL); Madelat v. Canada (Minister of Employment and Immigration), [1991]
F.C.J. No. 49 (QL)).
[19]
In
sum, the determination of what constitutes persecution involves an analysis of
many factors, including persistence, seriousness, and the quality of the
alleged incidents (Ranjha
v. Canada (Minister of Citizenship and Immigration), 2003 FCT 637, [2003]
F.C.J. No. 901 (QL), at para. 42; N.K. v. Canada (Solicitor General),
[1995] F.C.J. No. 889 (QL), at para. 21).
[20]
In
the present case, the Applicants submit that while the male Applicant’s health
benefit was denied on solely one occasion, their age, poor health and financial
situation should be taken into account when assessing whether the threats and
other treatment that they have received since 2001 constitutes persecution. In
support of this contention they cite the case of Nejad v. Canada (Minister of
Citizenship and Immigration), [1997] F.C.J. No. 1168 (QL), at para. 4, wherein
Justice Francis Muldoon indicated that when evaluating persecution in that
case, the CRDD (Convention Refugee Determination Division, established under
the previous Act) should have been more cognizant of the effect of harassment
upon the Applicants in light of their old age.
[21]
Further,
the Applicants refer to the Handbook on Procedures and Criteria for
Determining Refugee Status under the 1951 Convention and the 1967 Protocol
relating to the Status of Refugees of the United Nations High Commission for
Refugees (the UNHCR Handbook), at paras. 54 and 55 as providing guidance on
this matter:
[…]
(c)
Discrimination
54.
Differences in the treatment of various groups do indeed exist to a greater or
lesser extent in many societies. Persons who receive less favourable treatment
as a result of such differences are not necessarily victims of persecution. It
is only in certain circumstances that discrimination will amount to
persecution. This would be so if measures of discrimination lead to
consequences of a substantially prejudicial nature for the person concerned,
e.g. serious restrictions on his right to earn his livelihood, his right to practise
[sic] his religion, or his access to normally available educational facilities.
55.
Where measures of discrimination are, in themselves, not of a serious
character, they may nevertheless give rise to a reasonable fear of persecution
if they produce, in the mind of the person concerned, a feeling of apprehension
and insecurity as regards his future existence. Whether or not such measures of
discrimination in themselves amount to persecution must be determined in the
light of all the circumstances. A claim to fear of persecution will of course
be stronger where a person has been the victim of a number of discriminatory
measures of this type and where there is thus a cumulative element involved.
[22]
In
my view, the foregoing paragraph is instructive; the exercise of determining
whether cumulative discrimination and harassment constitute persecution is
highly factual and requires that individuals’ particular circumstances be taken
into account. In evaluating the Applicants’ case, their personal circumstances
and vulnerabilities including age, health, and finances must be taken into consideration
as forming part of the factual context, consistent with the UNHCR Handbook excerpted
above.
[23]
However,
in its decision, the Board did indeed take the Applicants’ personal circumstances
into account. While expressing sympathy for the Applicants in view of their age
and health status, the Board highlighted that they had not been put under
surveillance, arrested, interrogated, or incarcerated, their movements had not
been restricted, and they had not suffered any economic deprivation aside from
having to pay medical expenses.
[24]
The Applicants
refer to documentation suggesting that their total monthly retirement pension
does not exceed 500 RMB/month and therefore would not exceed 6000 RMB/year.
Thus, the sum of 20 000 RMB which the Applicants’ were required to pay for the
male applicant’s medical treatment is four times their yearly joint income.
However, the fact remains that the Applicants were able to pay this fee and
since 2002 they have traveled separately to Canada, Hong Kong, Malaysia, and Singapore. Thus, it was
reasonable for the Board to conclude that there was no evidence of economic
deprivation.
[25]
Given
these facts, the Applicants’ personal circumstances do not make them so
vulnerable as to render their treatment at the hands of the PSB persecutory in
nature. The Board sufficiently analyzed the relevant facts and came to a
reasonable conclusion. In light of this finding, it is unnecessary to address
whether the Board applied the wrong standard of proof to the issue of future
persecution.
[26]
For
the foregoing reasons, the application for judicial review is dismissed.
JUDGMENT
THIS COURT ORDERS that
1. The
application for judicial review is dismissed.
“Danièle
Tremblay-Lamer”
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