Docket: IMM-5796-14
Citation:
2015 FC 771
Ottawa, Ontario, June 19, 2015
PRESENT: The
Honourable Mr. Justice Zinn
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BETWEEN:
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ZHAOHUI CHEN
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
AND THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondents
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JUDGMENT AND REASONS
[1]
At the conclusion of the hearing of this
application, it was indicated to the parties that notwithstanding the
submissions made by counsel for the respondent, the application would be
granted.
[2]
The applicant, Zhaohui Chen, is a citizen of
China. He arrived in Canada in 2007, as a dependent on his father’s permanent
residence application.
[3]
In January 2012, the applicant was convicted of
manslaughter was sentenced to five years imprisonment. The applicant was found
inadmissible under section 36(1)(a) of the Immigration and Refugee
Protection Act, SC 2001 c 27 on November 13, 2012, and a deportation order
was issued on January 27, 2014.
[4]
The applicant submitted a request for a Pre-removal
Risk Assessment [PRRA] claiming a fear of persecution in China on account of
being a Baptist and retribution by the manslaughter victim’s family, and the
fact that Chinese criminal law allows further criminal responsibility for those
convicted of crimes abroad [the Double Jeopardy Risk]. The PRRA was rejected
as the officer found that the applicant would not face a personalized risk to
life or cruel and unusual treatment or punishment in China.
[5]
The applicant submits that the officer erred in
(1) assessing his risk based on a profile as a Protestant, and not on his
actual religious profile as a Baptist, (2) in failing to consider that
proselytizing is a fundamental part of the applicant’s religious practice, and (3)
in relying on evidence obtained by the officer through an internet search he
conducted to assess the Double Jeopardy Risk without advising the applicant and
providing him with an opportunity to respond to it.
[6]
The court has concerns with respect to the
officer’s assessment of the applicant’s risk based on his religion. In
particular, the court is troubled by the officer’s finding that the applicant
would not be at risk of persecution based on his religion if he attended a
registered Protestant church. The officer, who found the applicant credible,
failed to properly and adequately consider his affidavit statement that he does
not accept such state sponsored churches:
I fear that I will no longer be able to
practice my faith and my beliefs openly. Not only do I not believe that the
government and God are equals but I do not agree with state sponsored
churches. I do not believe that I would be able to receive God’s message
through a church that is censored by the government. I would also not be able
to engage in activities, such as proselytizing, which I believe are fundamental
to the faith.
[7]
In the court’s view, the officer was required to
justify why a state sponsored church was an avenue open to this applicant in
light of his uncontradicted evidence to the contrary.
[8]
In any event, the material difficulty with the
decision is that the applicant’s right to procedural fairness was breached when
the officer independently accessed and relied upon information which affected
the outcome of the decision, without giving the applicant an opportunity to
address it.
[9]
On the basis of his own research on the
internet, the officer finds that it is unlikely that the Double Jeopardy Risk
would apply to the applicant. The officer cites as a source consulted the decision
of the Upper Tribunal in England, YF, [2011] UKUT 32(IAC) [YF] and
states that “among its findings” the court
determined that it is more likely that an individual would be punished in China
again for a crime for which he has already been convicted elsewhere if “the crime received a lot of publicity in China, if the
victims were well-connected in China, if there were a political angle to the
original crime or if the crimes were of a particular type that the authorities
wanted to make an example of.” Based on this test, the officer
conducted a search of the internet using the applicant’s name, “Zhaohui Chen” and could not find any websites
mentioning his conviction. He concluded that the Double Jeopardy Risk was
unlikely.
[10]
The applicant correctly points out that a search
using the correct spelling of his name, “Zhoa-hui Chen”
would have disclosed that “almost every major news
outlet in Canada covered the story”. He also notes that had the officer
conducted a search of the victim’s name in Chinese characters he would have
also seen numerous articles that he asserts would have been available to the
Chinese authorities.
[11]
The test the officer relies and on which
he says was a finding in YF is not what the court in that case stated was
the proper test to be used. The test the officer cites is one referenced in YK
that comes from a UK document setting out the view of a Dr. Dillon as to the
practice of the Chinese authorities; however, at paragraph 80 of the decision,
the court lists “a wider number [i.e. 10] of factors as
being potentially relevant.”
[12]
The respondent, relying on Hassaballa
v Canada (Minister of Citizenship and Immigration), 2007 FC 499 [Hassaballa];
and Nadarajah v Canada (Solicitor General), 2005 FC 713 [Nadarajah],
argues that “a simple internet search reveals the
decision” and “it cannot be said that this
decision is one that is ‘not normally found’, nor is it ‘novel’.”
[13]
These authorities, in my view, are unhelpful in
assessing the present circumstances. In Hassaballa the applicant
complained that the PRRA officer looked at updated versions of the US DOS Report
and the US Religious Freedom Report. The applicant in that case had cited and
relied on earlier versions of both reports. The officer examined the most
current version of each report. The court noted that “these
updated reports are in the public domain, that they originate from well-known
sources, that they are general in nature, and that they are frequently quoted
by counsel involved in immigration cases on both sides.” Importantly,
it was noted that both are in the country condition packages relied upon by
immigration officers and the IRB. Moreover, counsel for the applicant was
aware of them, as they were referenced and relied upon in the submissions made
on behalf of his or her client. The court in finding that there was no breach
of procedural fairness when the officer relied on these updated reports observes
that counsel should have known, in light of her experience, that the PRRA
officer would rely on these updated documents. The same cannot be said of the
information relied upon by the officer in this case.
[14]
In Nadarajah the court considered whether
the officer’s reliance on the extensive review of country conditions in Sri
Lanka detailed in a decision of the European Court of Human Rights meant that
he was obliged to put the decision to the applicant. The court found that
there was no breach of procedural fairness in failing to do so because the
country conditions outlined in the decision reflected the same conditions that
existed at the time the applicant made his PRRA submissions. The court applied
the reasoning in Mancia v Canada (Minister of Citizenship and Immigration),
[1998] 3 FC 461 (CA) [Mancia], in concluding that there was no duty on
the officer to put this decision to the applicant.
[15]
In Mancia, the Federal Court of Appeal
stated, in the context of a document relating to country conditions, that it is
only where the decision-maker “relies on a significant
post-submission document that evidences changes in the general country
conditions that may affect the decision that the document must be communicated
to that applicant.” The test then is whether the document at issue may
affect the decision.
[16]
It is clear when reading this decision that the
officer relied on YK and the name search he conducted and that they
affected his decision, since it was because of these that he found that the
applicant here would not suffer the Double Jeopardy Risk. The officer may be
correct, however, the officer was required to put them to the applicant for his
comment prior to rendering a decision. In failing to do so, natural justice
was breached.
[17]
Neither party proposed a question for
certification nor is there any on the facts here.
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