Date:
20130528
Docket:
IMM-2280-12
Citation:
2013 FC 559
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 permanent residence application was
refused. This conclusion was based on the officer’s finding that there were
insufficient humanitarian and compassionate (H&C) grounds to warrant an
exception allowing the applicant’s permanent residence application to be made
from within Canada.
[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
officer did not believe that the applicant had sincerely converted to
Christianity and rejected his claim on March 24, 2006.
[6]
The
applicant submitted an H&C application on August 7, 2009 on the basis of
the difficulty he would face practicing his religion in China. That application was reviewed together with his pre-removal risk assessment (PRRA) application
by the same officer.
Officer’s Decision
[7]
In
a letter dated January 26, 2012, the officer informed the applicant that his
H&C application had been denied. Reasons for the decision were provided.
[8]
The
reasons began by summarizing the applicant’s immigration history and the
H&C factors identified by the applicant. The officer first dealt with the
establishment factor.
[9]
The
officer acknowledged the applicant had been a student in English classes for
four years and a regular volunteer at a geriatric care centre. The officer concluded
the applicant did not have a stable history of employment given that he had
indicated in one part of his application that he was unemployed, while had
claimed elsewhere he was employed but provided no documentary evidence.
[10]
The
officer noted the applicant indicated he lived with his parents, brother and
sister and had provided copies of permanent residence cards for his parents but
not his siblings. The applicant had not provided any letters of support from
family members or friends. The applicant had provided a letter indicating he
had joined a Christian church in 2004 before leaving it in 2007 to join another
church. The officer found that he had not established whether he had been
involved in another religious institution since then.
[11]
The
officer concluded that the hardships associated with the applicant’s
establishment in Canada were not unusual and undeserved or disproportionate.
[12]
The
officer then considered the risks of return to China. The officer noted that
the Refugee Protection Division (RPD) had determined that on a balance of
probabilities, the applicant was not a genuine Christian. The officer
nonetheless considered the applicant’s risks on the assumption that he is a
genuine Christian.
[13]
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.
[14]
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.
[15]
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.
Issues
[16]
The
applicant submits the following points at issue:
1. Did the officer
err in his assessment of establishment factors?
2. Did the officer
err in his assessment of risk factors?
[17]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the officer
breach procedural fairness?
3. Did the officer
err in denying the application?
Applicant’s Written Submissions
[18]
The
applicant argues the officer misapplied the H&C test by concluding the
applicant would not face unusual hardship before considering both establishment
and risk factors. The officer also erred by concluding the applicant was not
employed at the time of the application, when the applicant had submitted that
he was. Natural justice required that the officer solicit a file update from
the applicant and inform him that his H&C application was being transferred
to a PRRA decision maker.
[19]
On
the risk factors, the officer erred by not considering discrimination based on
religion choice as unusual hardship. The officer only concluded the applicant
would not experience hardship by complying with authoritarian rules restricting
practice to government sanctioned churches. The officer’s opinion that the
Chinese government might tolerate unregistered churches was not a reasonable
explanation for failing to consider discrimination. There was ample documentary
evidence supporting this claim.
[20]
The
officer failed to appreciate that the applicant’s father was found to be a
Convention refugee by the RPD based on religious persecution.
Respondent’s Written Submissions
[21]
The
respondent submits that the appropriate standard of review is reasonableness
and that H&C decisions are discretionary. The onus is on the applicant to
provide sufficient documentation. Given the contradictory information and lack
of supporting documents, it was reasonable to conclude the applicant was
unemployed.
[22]
It
was not a breach of procedural fairness for the officer to fail to request an
update of the H&C application. There is no legislative requirement for this
request and it is trite law that the onus is on the applicant to support his
application. Citizenship and Immigration Canada has discontinued the practice
of soliciting updates since April 1, 2011. The public and immigration
practitioner organizations were informed of this change.
[23]
The
applicant did not establish his religious identity and the status of his father
is irrelevant, if only because that refugee claim was based on being a
practitioner of Falun Gong.
Analysis and Decision
[24]
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).
[25]
It
is trite law that the appropriate standard of review for issues of procedural
fairness is correctness (see Wang v Canada (Minister of Citizenship and
Immigration), 2008 FC 798 at paragraph 13, [2008] FCJ No 995 and Canada (Minister of Citizenship and
Immigration) v Khosa, 2009 SCC 12 at paragraph 43, [2009] 1 SCR
339). No deference is owed to decision makers on these issues (see Dunsmuir
above, at paragraph 50).
[26]
It
is well established that assessments of an officer’s
decision on H&C applications for permanent residence from within Canada is
reviewable on a standard of reasonableness (see Kisana v Canada (Minister of
Citizenship and Immigration), 2009 FCA 189 at paragraph 18, [2009] FCJ No
713; Adams v Canada (Minister of Citizenship and Immigration), 2009 FC
1193 at paragraph 14, [2009] FCJ No 1489; and De Leiva v Canada (Minister of
Citizenship and Immigration), 2010 FC 717 at paragraph 13, [2010] FCJ No
868).
[27]
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
Khosa above, at paragraph 59). 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).
[28]
Issue
2
Did the
officer breach procedural fairness?
It is well established that
the onus to provide sufficient evidence is on the H&C applicant and the
officer is under no duty to inform the applicant about evidentiary concerns
(see Garnett v Canada (Minister of Citizenship and Immigration), 2012 FC
31 at paragraph 30, [2012] FCJ No 28).
[29]
Similarly,
there is no duty on an officer to request an update from an applicant (see Zhu
v Canada (Minister of Citizenship and Immigration), 2011 FC 952 at
paragraph 20, [2011] FCJ No 1246).
[30]
There
is therefore no procedural fairness violation.
[31]
Issue
3
Did the officer err in
denying the application?
I do not read the officer’s
reasons as having made a decision on unusual hardship before having considered
both risk and establishment factors. The conclusion at the end of the
establishment factors portion of the decision is presumably meant only to
summarize the officer’s finding on that issue and does not preclude the
possibility that the applicant can still be granted his application based on
the risk factors or the two in combination.
[32]
Similarly,
I see no indication that the officer failed to consider any employment
evidence. The applicant gave contradictory information at different parts of
his H&C application and provided no documentary evidence of employment. It
was therefore reasonable to conclude the applicant was unemployed.
[33]
On
the risk factor of discrimination, I would first note that this issue was not
raised before the officer. The applicant’s PIF narrative referred to
“persecution or mistreatment” and his H&C application made no mention of
the IP5 Manual’s instructions on discrimination. The excerpted text from that
Manual provided by the applicant indicates that “[a]pplicants may claim to be
victims of “discrimination””, but this applicant made no such claim. It is
therefore not clear the officer was required to consider this argument on his
own.
[34]
Regardless,
however, the IP5 Manual also indicates that discrimination alone would not
warrant a positive H&C determination and an officer must perform a global
assessment that considers establishment factors. Here, the officer clearly
considered the evidence of how Christians were treated in China, even if not invoking discrimination explicitly. The officer also considered the
relevant establishment factors. Taking this evidence together, the officer
concluded there would not be unusual hardship for the applicant. Therefore, I
am not convinced that an explicit consideration of discrimination as a ground
of hardship would have resulted in a different analysis of the evidence or a
different outcome for the applicant. I would therefore dismiss the application
for judicial review.
[35]
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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