Date:
20130528
Docket:
IMM-2281-12
Citation:
2013 FC 560
Ottawa, Ontario,
May 28, 2013
PRESENT: The
Honourable Mr. Justice O'Keefe
BETWEEN:
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REUPANG CAO
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Applicant
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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]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a
decision by a Citizenship and Immigration Canada officer (the officer) dated
January 26, 2012, wherein the applicant’s pre-removal risk assessment (PRRA) application
was refused.
[2]
The applicant requests that the officer’s
decision be set aside and the application be referred back to Citizenship and
Immigration Canada (CIC) for redetermination by a different officer.
Background
[3]
The
applicant is a citizen of the People’s Republic of China. In 2001, he was sent
by his parents to study in Peru. After being harassed and attacked on the basis
of his Chinese nationality, he left Peru for Canada, arriving on September 24,
2004. He claimed refugee protection on October 22, 2004.
[4]
The
applicant was convinced by an immigration consultant to claim refugee status on
the basis of Falun Gong membership. In December 2004, the applicant became a
Christian of the Protestant faith. Believing that he should tell the truth, the
applicant submitted a new Personal Information Form (PIF) narrative indicating
his real refugee claim was based on his conversion to Christianity.
[5]
The
Refugee Protection Division (RPD) did not believe that the applicant had sincerely
converted to Christianity and rejected his claim on March 24, 2006.
[6]
The
applicant submitted a PRRA application on March 16, 2011, on the basis of the
difficulty he would face practising his religion in China. That application was
reviewed together with his humanitarian and compassionate (H&C) application
by the same officer.
Officer’s Decision
[7]
In
a letter dated January 26, 2012, the officer informed the applicant his PRRA
application had been rejected. The officer’s notes serve as reasons for the
decision.
[8]
The
officer began by summarizing the applicant’s immigration history, including the
RPD finding that the applicant was not credible and not a genuine Christian.
The officer noted the applicant’s alleged risk of harassment based on religion
and living under an atheistic and repressive state.
[9]
The
officer noted that the applicant had not submitted any evidence in his PRRA
application that would rebut the findings of the RPD.
[10]
The
officer recognized that the situation of Protestant Christians in China is not perfect, but noted that the Chinese government officially recognized
Protestantism as a religion. While churches must be registered with the government,
authorities in the provinces of the east coast, where the applicant is from,
are increasingly tolerant. It is reported that the government tolerates family
and friends meeting at homes to practice their religion without having to
register.
[11]
The
officer concluded that if the applicant was a Protestant, he would, on a
balance of probabilities, be able to practice his religion upon return to China within the framework prescribed by the authorities and would not face risks that
would constitute unusual and undeserved or disproportionate hardship.
[12]
The
officer reviewed country conditions documents provided by the applicant
pertaining to human rights in China generally and concluded that there was no
connection between the general status of human rights and the particular risks
faced by the applicant. To be recognized as a person in need of protection, the
risk an applicant would face must be personalized.
[13]
Therefore,
the officer concluded there was not more than a mere possibility that the applicant
would be persecuted and there were no serious reasons to believe the applicant
would be subject to torture or a threat to his life or a risk of cruel and
unusual punishment.
Issues
[14]
The
applicant submits the following points at issue:
1. Did the officer
err in his assessment of the applicant’s sur place claim?
2. Did the officer
err by failing to consider the applicant’s claim based on his father’s
political opposition to the Chinese government?
[15]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the officer
err in denying the application?
Applicant’s Written Submissions
[16]
The
applicant submits that the officer erred by not appreciating that the
applicant’s claim is a sur place claim and that it was possible that since
the applicant’s 2006 RPD hearing, the country conditions in China had worsened.
This issue could have been a basis for a successful section 96 claim. While the
RPD made a finding against credibility, there was ample documentary evidence
capable of supporting a positive decision of that claim, yet it was not
considered by the officer. A person may become a sur place refugee based
on their own actions and not only based on changing country conditions. The
European Court of Human Rights has recently held that general risks faced by
the population may amount to a real risk of ill-treatment to the deportee.
Therefore, the officer’s failure to consider whether the applicant’s activities
in Canada would have consequences in China is an error of law reviewable on
correctness.
[17]
The
applicant also submits the officer erred by failing to consider the applicant’s
claim based on his father’s political opposition to the Chinese government. The
applicant made clear in his PRRA application that he opposed the Chinese government’s
infringements of its citizens’ human rights. The officer’s finding of a
generalized risk conflicts with the fact that the applicant’s father was
recognized as a Convention refugee by the RPD. The officer could have accessed
the applicant’s family information with a simple computer search. The officer
made a reviewable error by failing to consider this important evidence.
Respondent’s Written Submissions
[18]
The
respondent submits that the standard of reasonableness applies and that a PRRA application
is not a re-hearing of a refugee claim. The allegations before the officer had
already been considered by the RPD. The applicant failed to identify how his
PRRA submissions overcame the credibility findings made by the RPD. The two
issues raised in the PRRA application where his alleged religious beliefs and
the human rights situation in China. Both were considered by the officer. The
applicant’s sur place claim was heard by the RPD. The country conditions
evidence provided by the applicant does not make a link between his individual
claim and those conditions. It is unclear how the European Court decision
relied upon by the applicant supports his claim, given that it dealt with
return to Somalia. The applicant’s claim was properly considered.
[19]
The
applicant’s submissions to the officer made no mention of his father’s
political opposition to the Chinese government or that any family member had
been found to be a Convention refugee. Such status would have no effect on the
applicant’s PRRA application. The officer considered the country conditions
evidence and reasonably found the applicant had failed to personalize the
documentation.
Analysis and Decision
[20]
Issue
1
What is
the appropriate standard of review?
Where previous
jurisprudence has determined the standard of review applicable to a particular
issue before the court, the reviewing court may adopt that standard (see Dunsmuir
v New Brunswick, 2008 SCC 9 at paragraph 57, [2008] 1 S.C.R. 190).
[21]
It
is trite law that the standard of review of PRRA decisions is reasonableness
(see Wang v Canada (Minister of Citizenship and Immigration), 2010 FC
799, [2010] FCJ No 980 at paragraph 11; and Aleziri v Canada (Minister of Citizenship and Immigration), 2009 FC 38, [2009] FCJ No 52 at paragraph 11).
Similarly, issues of state protection and of the weighing, interpretation and
assessment of evidence are reviewable on a reasonableness standard (see Ipina
v Canada (Minister of Citizenship and Immigration), 2011 FC 733, [2011] FCJ
No 924 at paragraph 5; and Oluwafemi v Canada (Minister of Citizenship and
Immigration), 2009 FC 1045, [2009] FCJ No 1286 at paragraph 38).
[22]
In
reviewing the officer’s decision on the standard of reasonableness, the Court
should not intervene unless the officer came to a conclusion that is not
transparent, justifiable and intelligible and within the range of acceptable
outcomes based on the evidence before it (see Dunsmuir above, at
paragraph 47 and Canada (Minister of Citizenship and Immigration) v Khosa,
2009 SCC 12 at paragraph 59, [2009] 1 S.C.R. 339). As the Supreme Court held
in Khosa above, it is not up to a reviewing court to substitute its own
view of a preferable outcome, nor is it the function of the reviewing court to
reweigh the evidence (at paragraph 59).
[23]
Issue
2
Did the
officer err in denying the application?
The officer’s
decision was based on the applicant’s claim that he had converted to
Christianity after arriving in Canada. The officer concluded there was no basis
for the claim given that it had been dismissed by the RPD.
[24]
While
the officer did not use the term “sur place”, the analysis in the
decision clearly accepted that a genuine change in status after arrival in Canada could be the basis for a valid claim. The issue was clearly not whether a religious
conversion was a legal basis for a PRRA claim, but whether the applicant’s
religious conversion was in fact sincere. Indeed, the officer went on to
consider the persecution of Christians in China as a live issue after reciting
the RPD findings, suggesting it was quite open to the applicant to prove
persecution based on a new religion. The applicant’s suggestion that the
officer was not aware of the possibility of a sur place refugee claim has
no basis in the record.
[25]
As
for the applicant’s argument relating to political persecution relating to his
father’s beliefs, this argument was raised on judicial review for the first
time and was not before the officer. It can therefore not be a basis for
finding the officer’s decision unreasonable.
[26]
The
application for judicial review is therefore dismissed.
[27]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
dismissed.
“John A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
Immigration
and Refugee Protection Act,
SC 2001, c 27
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25. (1) Subject
to subsection (1.2), the Minister must, on request of a foreign national in
Canada who applies for permanent resident status and who is inadmissible or
does not meet the requirements of this Act, and may, on request of a foreign
national outside Canada who applies for a permanent resident visa, examine
the circumstances concerning the foreign national and may grant the foreign
national permanent resident status or an exemption from any applicable
criteria or obligations of this Act if the Minister is of the opinion that it
is justified by humanitarian and compassionate considerations relating to the
foreign national, taking into account the best interests of a child directly
affected.
72. (1) Judicial
review by the Federal Court with respect to any matter — a decision,
determination or order made, a measure taken or a question raised — under
this Act is commenced by making an application for leave to the Court.
96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is
outside each of their countries of nationality and is unable or, by reason of
that fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not
having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
97. (1) A
person in need of protection is a person in Canada whose removal to their
country or countries of nationality or, if they do not have a country of
nationality, their country of former habitual residence, would subject them
personally
(a) to
a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to
a risk to their life or to a risk of cruel and unusual treatment or
punishment if
(i) the
person is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the
risk would be faced by the person in every part of that country and is not
faced generally by other individuals in or from that country,
(iii) the
risk is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the
risk is not caused by the inability of that country to provide adequate
health or medical care.
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25. (1) Sous
réserve du paragraphe (1.2), le ministre doit, sur demande d’un étranger se
trouvant au Canada qui demande le statut de résident permanent et qui soit
est interdit de territoire, soit ne se conforme pas à la présente loi, et
peut, sur demande d’un étranger se trouvant hors du Canada qui demande un
visa de résident permanent, étudier le cas de cet étranger; il peut lui
octroyer le statut de résident permanent ou lever tout ou partie des critères
et obligations applicables, s’il estime que des considérations d’ordre
humanitaire relatives à l’étranger le justifient, compte tenu de l’intérêt
supérieur de l’enfant directement touché.
72. (1) Le
contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
96. A
qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a) soit
se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait
de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit,
si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle
avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut
y retourner.
97. (1) A
qualité de personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
a) soit
au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b) soit
à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i) elle
ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle
y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la
menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv) la
menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
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