Docket: IMM-7099-14
Citation:
2015 FC 565
Ottawa, Ontario, April 30, 2015
PRESENT: The
Honourable Mr. Justice Phelan
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BETWEEN:
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QIN HANG CHEN
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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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JUDGMENT AND REASONS
I.
Introduction
[1]
This is the judicial review of a decision by an
Immigration Officer [Officer] rejecting the PRRA application of the Applicant,
who had been unsuccessful in his refugee claim before the Immigration and
Refugee Board [IRB].
[2]
The Applicant submitted “new” evidence in his
PRRA, which evidence was dismissed by the Officer.
[3]
The relevant provision for this judicial review
is s 113(a) of the Immigration and Refugee Protection Act, SC
2001, c 27:
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113. Consideration of an application
for protection shall be as follows:
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113. Il est disposé de la demande comme il
suit :
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(a) an applicant whose claim to
refugee protection has been rejected may present only new evidence that arose
after the rejection or was not reasonably available, or that the applicant
could not reasonably have been expected in the circumstances to have
presented, at the time of the rejection;
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a) le demandeur d’asile débouté ne peut
présenter que des éléments de preuve survenus depuis le rejet ou qui
n’étaient alors pas normalement accessibles ou, s’ils l’étaient, qu’il
n’était pas raisonnable, dans les circonstances, de s’attendre à ce qu’il les
ait présentés au moment du rejet;
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II.
Background
[4]
The Applicant is a citizen of China who made a
refugee claim based upon his fear of persecution from the Chinese government
for practicing Christianity in an “underground”
(non-state approved) church.
[5]
The IRB held that the determinative issues were
credibility and the situation of Christians in Fujian Province. The IRB drew a
number of negative inferences and credibility findings in concluding that the
Applicant was not a Christian nor was he being pursued by the PSB. The IRB
further concluded that the Applicant joining a Christian church in Canada was
solely to support a refugee claim. Finally, the IRB held that the Applicant
could practice his faith in Fujian Province and did not face a serious
possibility that he would be persecuted.
[6]
With respect to the PRRA application, the
Applicant filed the following:
1.
Affidavit of the Applicant dated June 3, 2014
and May 21, 2014;
2.
The Applicant's son's personal notebook;
3.
Letter from the Applicant's wife;
4.
Translated Fuqing City Public Security Bureau
Summons dated March 11, 2014 for the Applicant;
5.
Translated Fuqing City Public Security Bureau
Arrest Warrant dated February 6, 2014 for Guoquin Mei;
6.
Black and white photographs of the Applicant,
his wife and son and photographs depicting a room with furniture displaced;
7.
Translated medical documents dated March 11,
2014 indicating that the Applicant's wife sustained injuries to her arm;
8.
A May 16, 2014 translated letter from the
Applicant's wife indicating that the PSB visited her home in search of the Applicant
- she indicates that they hit her with a baton when she attempted to stop them
from damaging her home;
9.
A May 26, 2014 translated letter from the
Applicant's parents indicating that the PSB attended the Applicant's home,
damaged his home and harmed his wife;
10.
A May 19, 2014 translated letter from the
Applicant's neighbour in China stating that she witnessed a police vehicle parked
in front of the Applicant’s house and when she attended the home, the
Applicant's wife was laying on the floor;
11.
A May 20, 2014 translated letter from the
Applicant's wife's neighbour indicating she witnessed police officers enter the
Applicant's wife's home, smash and beat the Applicant's wife;
12.
A May 29, 2014 translated letter from Cheng Shen
He indicating that Gou Mei gave him a pamphlet in both Chinese and English and
told him that a friend in Canada sent the materials to him;
13.
IRB decision of June 26, 2000 and Federal Court
Jurisprudence dated January 19, 2011 and May 4, 2012;
14.
Refugee Protection Division [RPD] member
statistics for RPD Member Favreau for 2012 and 2013;
15.
RPD decision and PIF for Applicant;
16.
A "To whom it may concern" letter from
the Vancouver Chinese Pentecostal Church dated May 27, 2014;
17.
Letters dated May 14, 2014 and May 30, 2012 and
copies of donation receipts from the Living Water Assembly Church in Toronto;
18.
Black and white photographs of the Applicant
with fellow congregants in Toronto;
19.
Certificate of Baptism for the Applicant dated
April 24, 2011;
20.
Translated letters from past co-congregates in
China; and
21.
Documentary material which discuss conditions in
China.
[7]
With respect to items 1-12, the Officer held
that they were not “new evidence” because the
information was not significantly different from what was previously provided
to the IRB nor would it overcome its findings.
Item
21 was held to be evidence that predates the IRB decision and was reasonably
available and could have been presented. The same was held regarding Items 13
and 15-20. Item 14 was said to be irrelevant.
[8]
The critical date for the IRB evidence base is
October 17, 2012, the date of the IRB decision. The bulk of the “new evidence” postdates the IRB decision. It included
a 2014 summons for the Applicant served on his wife; an arrest warrant of 2014
for Mr. Mei, the recipient of religious material sent by the Applicant; and,
witness statements attesting to a PSB raid on the Applicant’s home.
All
that evidence pointed to current risk consistent with the risk that the
Applicant had alleged before the IRB.
[9]
The Officer, having cited and quoted from Raza
v Canada (Citizenship and Immigration), 2006 FC 1385, 304 FTR 46 [Raza],
concluded:
The applicant, in the case at hand, has restated
materially the same information which he presented to the RPD. He has not
rebutted any of the findings of the RPD. As a result, I have insufficient
evidence before me to arrive at a different conclusion from that of the RPD.
[10]
The issues in this judicial review are:
•
Did the Officer apply the correct legal test
with respect to subsection 113(a)?
•
Did the Officer err in his application of the
section to the particular facts of the case?
III.
Analysis
[11]
The first issue is a matter of law for which
correctness is the applicable standard. The second issue, whether the Officer
erred or not, is mixed fact and law subject to the reasonableness standard (Elezi
v Canada (Citizenship and Immigration), 2007 FC 240, [2008] 1 FCR 365).
[12]
Although the Officer quoted a pertinent part of Raza
at the Federal Court, he/she totally ignored the analytical framework outlined
by the Court of Appeal in Raza v Canada (Citizenship and Immigration),
2007 FCA 385, 289 DLR (4th) 675, where the Court pointed out, at
paragraph 13, that s 113(a) requires that an officer consider a
number of questions:
1. Credibility:
Is the evidence credible, considering its source and the circumstances in which
it came into existence? If not, the evidence need not be considered.
2. Relevance:
Is the evidence relevant to the PRRA application, in the sense that it is
capable of proving or disproving a fact that is relevant to the claim for
protection? If not, the evidence need not be considered.
3. Newness:
Is the evidence new in the sense that it is capable of:
(a) proving
the current state of affairs in the country of removal or an event that
occurred or a circumstance that arose after the hearing in the RPD, or
(b) proving
a fact that was unknown to the refugee claimant at the time of the RPD hearing,
or
(c) contradicting
a finding of fact by the RPD (including a credibility finding)?
If not, the
evidence need not be considered.
4. Materiality:
Is the evidence material, in the sense that the refugee claim probably would
have succeeded if the evidence had been made available to the RPD? If not, the
evidence need not be considered.
5. Express statutory conditions:
(a) If
the evidence is capable of proving only an event that occurred or circumstances
that arose prior to the RPD hearing, then has the applicant established either
that the evidence was not reasonably available to him or her for presentation
at the RPD hearing, or that he or she could not reasonably have been expected
in the circumstances to have presented the evidence at the RPD hearing? If not,
the evidence need not be considered.
(b) If
the evidence is capable of proving an event that occurred or circumstances that
arose after the RPD hearing, then the evidence must be considered (unless it is
rejected because it is not credible, not relevant, not new or not material).
[13]
The Officer did not conduct the required Raza
type analysis. On that ground alone, this judicial review should be granted.
[14]
More particularly, the Officer appears to have
dismissed the new evidence because it was relevant to the original risk
alleged. It is evident that much of this new evidence related to facts which
arose well after the IRB decision.
[15]
As held in Kirindage De Silva v Canada
(Citizenship and Immigration), 2007 FC 841, 159 ACWS (3d) 562, the fact
that the new evidence relates to the old risk does not mean it should not be
considered – it must.
[17] Although the PRRA process is meant
to assess only evidence of new risks, this does not mean that new evidence
relating to old risks need not be considered. Moreover, one must be careful
not to mix up the issue of whether evidence is new evidence under subsection
133(a) with the issue of whether the evidence establishes risk. The PRRA
officer should first consider whether a document falls within one of the three
prongs of subsection 113(a). If it does, then the Officer should go on to
consider whether the document evidences a new risk.
…
[21] The Officer excluded these
documents solely based on the fact that they related to the allegations raised
in front of the Refugee Board. This is not the test for new evidence set out in
subsection 113(a). Consequently, I find that the Officer erred in law by
misinterpreting 113(a).
[16]
The Officer confused the issue of newness of
evidence with whether that evidence established risk. The Officer’s approach
would sterilize a PRRA assessment and would result in ignoring evidence of
current or continuing risk because the same type of risk had been dealt with
earlier.
[17]
Given my finding on the legal test, I will not
comment further on the reasonableness of the decision other than to note that
there was no evidence before the IRB that the Applicant’s wife had been
assaulted in the prior PSB search, nor was there evidence that the Applicant
was being sought for spreading religious information.
IV.
Conclusion
[18]
Therefore, this judicial review will be granted,
the decision quashed and the matter referred back to be determined by a
different officer.
[19]
There is no question for certification.
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