Docket:
IMM-12029-12
Citation: 2013 FC 1277
Ottawa, Ontario, December 20, 2013
PRESENT: The Honourable Mr. Justice Annis
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BETWEEN:
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SHANGRONG LI
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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
INTRODUCTION
[1]
This is an application pursuant to s 72.1 of the
Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] for
judicial review of a decision of Citizenship and Immigration Canada [CIC] dated
August 24, 2012, refusing the applicant’s request for permanent residence on humanitarian
and compassionate [H&C] grounds. The applicant asks for CIC’s decision to
be quashed and for the matter to be remitted to CIC for re-consideration by a
different officer.
[2]
For the following reasons, the application is
denied.
BACKGROUND
[3]
The applicant, Mr Shangrong Li, is a 56-year old
citizen of China, born in 1957. He traveled to Canada on a visitor visa,
arriving at Pearson International Airport on June 10, 1999, and leaving his
wife and two adult sons in China. He filed a claim for refugee protection,
which was refused by the Refugee Protection Division [RPD] on August 3, 2000.
Leave to seek judicial review of this negative decision was denied on August
29, 2000.
[4]
The applicant also submitted a claim for
permanent residence from within Canada in June 2003, which was denied on March
17, 2005. He filed a pre-removal risk assessment, which was refused on May 26,
2008.
[5]
He submitted a request for exemption from the
permanent resident visa requirement on H&C grounds on June 16, 2003, which
was refused in March 2005.
[6]
He subsequently submitted a second H&C
application, and there is some ambiguity in the record and party submissions as
to what was submitted and when. The applicant’s record includes a completed
Request for Exemption From Permanent Resident Visa Requirement form (IMM 5001
(08-2004) E), which is stamped as received by CIC on February 24, 2005. Volume
1 of the general documents includes a completed Application For Permanent
Residence From Within Canada- Humanitarian and Compassionate Considerations
form (IMM 5001 (12-2006) E), stamped as received by CIC on November 3, 2008.
The applicant pleads that he submitted his application in February 2005, and
the respondent pleads that the application was received by CIC in November
2008.
[7]
In any case, in his H&C application the applicant
alleged that he would face persecution by the Chinese government if he were
returned due to his anti-government, pro-human rights, pro-democracy and
pro-freedom activities. He also alleged that he would face difficulty in China as a practicing Christian, and that he would not be able to attend an official registered
church in China, which would constitute hardship in the form of religious
persecution. Finally, he alleged that he would face difficulty because of his
establishment in Canada.
DECISION UNDER
REVIEW
[8]
The Immigration Officer (“the Officer”) reviewed
the applicant’s H&C application on two grounds – establishment in Canada and adverse country conditions – and concluded that the applicant had not demonstrated that
he would face unusual and undeserved or disproportionate hardship upon return
to China.
Establishment
in Canada
[9]
The Officer noted that a degree of establishment
in Canada is to be expected of someone who has been in Canada for as long as the applicant, but nevertheless that may not amount to unusual and
undeserved or disproportionate hardship.
[10]
The Officer noted the applicant’s work
experience and his improvement of his English skills. He also observed that the
applicant had submitted tax returns for the previous five years, and made
charitable donations. He also noted the applicant’s membership in and
involvement with a local church.
[11]
The Officer also noted the positive letters of
support from the applicant’s friends and acquaintances.
[12]
Ultimately, the Officer concluded, without
providing any indication as to the evidence he relied upon, that the applicant
had not integrated into Canadian society to the extent that his departure would
cause an unusual and undeserved, or disproportionate hardship.
Adverse country
conditions
[13]
The Officer noted that the applicant has
submitted that he will experience hardship because he will not be able to
attend an official church in China because those churches are not truly
Christian, and that if he attends an unregistered church, he will face hardship
in the form of persecution.
[14]
The Officer observed that the material submitted
by the applicant demonstrates that there is persecution of pastors and
religious leaders by the Chinese government, but not of people like the applicant,
mere practicing Christians. There was no evidence that the applicant had been
persecuted for his religious beliefs by the Chinese government in the past.
[15]
Furthermore, the Officer noted that a 2007 China
Aid Association report states that the applicant’s region of origin, Liaoning, had the lowest rate of Christians detained or arrested across 19 provinces. He
also noted that the Chinese government implements periodic crackdowns on unregistered
churches, but that a US Department of State report does not contain information
about unregistered Christians facing arrest and detention in Liaoning in 2010
or 2011.
[16]
The Officer concluded that the applicant could
choose to attend an unregistered Christian church upon return to China, and
that he will not face unusual, undeserved or disproportionate hardship in the
form of religious persecution.
Return to China
[17]
The Officer noted that the applicant was born,
raised and educated in China, and his wife, two sons and brother continue to
reside in Liaoning, where he is from. There was no evidence demonstrating that
he would not be able to support himself should be return to China, and it was reasonable to believe that his family in China would be able to provide assistance
upon return.
ISSUES
[18]
The issues raised in this matter are as follows:
1.
Was the Officer required to request an update of his application from
the applicant?
2. Does the failure by the Officer to provide adequate
reasons explaining the rejection of the applicant’s establishment argument
constitute grounds for setting aside the decision?
STANDARD OF REVIEW
[19]
The parties agree that the standard of review is
reasonableness (see Phathong v Canada (Citizenship and Immigration),
2010 FC 927 at paras 7, 10).
ANALYSIS
Issue #1: Was
the Officer required to request an update of his application from the applicant?
[20]
The applicant claims that the failure of the
immigration officer to provide him with an opportunity to update the
information contained in his H&C application of February 2005 constitutes a
breach of natural justice.
[21]
There is little merit in this argument inasmuch
as the new evidence that the applicant wished to bring to the attention of the
Officer was that he had separated from his wife in 1995. This information was
not contained in his original application. In addition, the application contains
a provision requiring the applicant to report changes to the answers on his
application prior to being granted permanent resident status.
[22]
Accordingly, there was no information for the applicant
to update, given his failure to include accurate information on his marital
status in his original application, which he chose not to bring to the
attention of CIC until it suited him; see Owusu v Canada (Minister of
Citizenship and Immigration), 2004 FCA 38, [2004] 2 FCR 635 at paragraph 8:
[8] HNC
applicants have no right or legitimate expectation that they will be
interviewed. And, since applicants have the onus of establishing the facts on
which their claim rests, they omit pertinent information from their written
submissions at their peril.
[23]
I also reject the argument that there is any
duty or legitimate expectation created by the conduct of other officers to
provide an opportunity to applicants to update their information on the basis
of insufficiency of information (see Law v Canada (Citizenship and
Immigration), 2009 FC 79 at para 18, citing Melchor v Canada (Minister
of Citizenship and Immigration), 2004 FC 1327).
Issue #2: Does the failure by the Officer to provide adequate
reasons explaining the rejection of the
applicant’s establishment argument constitute grounds for setting
aside the decision?
[24]
The respondent’s counsel acknowledges that the
main reason the applicant’s application was rejected was that his establishment
in Canada was not demonstrative of unusual and undeserved, or disproportionate
hardship. I am aware of the jurisprudence cited by the applicant setting aside
decisions on the basis of inadequacy of reasons, which failed to explain on the
evidence provided why a finding of sufficient establishment was rejected (see Tindale
v Canada (Citizenship and Immigration), 2012 FC 236; Adu v Canada
(Minister of Citizenship and Immigration), 2005 FC 565; Pramauntanyath v
Canada (Minister of Citizenship and Immigration), 2005 FC 604).
[25]
Nevertheless, I am of the view that little
weight may be given to evidence on establishment in circumstances where it
results from the applicant’s choice to remain in Canada without status, and not
from circumstances beyond his control. In this regard, I rely upon the decision
of Justice Mosley in Singh v Canada (Citizenship and Immigration), 2011
FC 813, citing the decision of Justice de Montigny in Serda v Canada
(Minister of Citizenship and Immigration), 2006 FC 356. Although the key
issue in Singh and Serda was the fettering of the officer’s
discretion, the underlying reasoning strongly supports the proposition that
little weight should be accorded to establishment when it results from the
applicant’s choice to remain in Canada. I quote from the decision of Justice
Mosley at paragraph 10:
[10] The
officer did not fetter his discretion or fail to consider the
post-leave-decision evidence. Rather, the officer considered it and decided to
give it no weight because it resulted from the applicant’s choice to remain
in Canada without status and not from circumstances beyond his control. As
counsel for the applicant fairly acknowledged, the officer’s reasons are
commendably clear on this point.
[…]
[13] Although
the officer did not consider the applicant’s establishment in light of the fact
that his application took almost five and a half years to process, this failure
is not a reviewable error as the post-leave decision evidence does not change
the outcome of the decision. In his consideration of the post-leave-decision
establishment, the officer found that, had the establishment resulted from
circumstances beyond the applicant’s control, he would have accorded it “some
positive weight.” Notably, the officer stops short of saying that the evidence
would lead to a different conclusion or that it would be determinative of his
application. In any event, establishment is only one of the factors to be
considered in assessing an H&C application, and the applicant’s
establishment following the leave decision does not appear to be sufficient to
warrant H&C relief on its own.
[14] In my
view, the decision in Serda v Canada (Minister of Citizenship and Immigration),
2006 FC 356 (CanLII), 2006 FC 356, 146 ACWS (3d) 1057 is determinative of this
application. In that decision, Mr. Justice Yves de Montigny was faced with the
same issue that is now before me – that is, whether the officer fettered her
discretion in not considering evidence of establishment after the applicants
became subject to a removal order. At paragraphs 19 to 24, Justice de
Montigny found that:
The Applicants,
knowing that further time in Canada waiting for their legal processes to be
completed would mean more alleged difficulty in returning to their home
country, and knowing that they had been ordered to be removed, made the choice
to stay anyway. This cannot be equated to a "prolonged inability to leave Canada", which is one of the situations where the Applicant's degree of establishment
may be a factor to be considered pursuant to section 11.2 of the IP5 Manual.
One of the
cornerstones of the Immigration and Refugee Protection Act is the requirement
that persons who wish to live permanently in Canada must, prior to their
arrival in Canada, submit their application outside Canada and qualify for, and
obtain, a permanent resident visa. Section 25 of the Act gives to the Minister
the flexibility to approve deserving cases for processing within Canada. This is clearly meant to be an exceptional remedy […]
It would
obviously defeat the purpose of the Act if the longer an applicant was to live
illegally in Canada, the better his or her chances were to be allowed to stay
permanently, even though he or she would not
otherwise qualify as a refugee or permanent resident. This circular argument
was indeed considered by the H & C officer, but not accepted; it doesn't
strike me as being an unreasonable conclusion. […]
[I]t cannot be
said that the exercise of all the legal recourses provided by the IRPA are circumstances
beyond the control of the Applicant. A failed refugee claimant is certainly
entitled to use all the legal remedies at his or her disposal, but he or she
must do so knowing full well that the removal will be more painful if it
eventually comes to it. […]
[Emphasis
added]
[26]
In the case at hand, the Officer noted that
“unusual and undeserved hardship involves a hardship not anticipated by the Act
or Regulations; and in most cases a hardship resulting from circumstances
beyond the person’s control”. He also indicated that the analysis should
discern whether the removal of the applicant to China would amount to unusual
and undeserved or disproportionate hardship, in recognition that establishment
was just one of the factors which had to be balanced against the personal
circumstances of facing the applicant upon removal to China.
[27]
While the Officer did not specifically indicate
that little weight would be given to the degree of integration attained by the
applicant, I find the conclusions of Justices Mosley and de Montigny persuasive
in requiring the Board to discount to some degree the fact that the
accumulation of years in Canada upon which the applicant’s establishment is
based were a result of his decision to remain, and therefore not beyond his control.
[28]
This factor must be considered with the
unchallenged conclusions of the Officer that no adverse country conditions
prevailed in China, in addition to the generally positive societal, working,
family and emotional conditions facing the applicant upon return to a country
where he was born, raised and educated.
[29]
In consideration of both justification and
outcome, I am satisfied that the Officer’s decision meets the exigencies of
reasonableness and falls within a range of possible, acceptable outcomes which
are defensible in respect of the facts and law.
CONCLUSION
[30]
For the reasons given above, this application
for judicial review is denied. No question was proposed for certification and
none arises.
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