Date: 20050120
Docket: IMM-895-04
Citation: 2005 FC 85
BETWEEN:
HUNG PONG MAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION and
THE SOLICITOR GENERAL OF CANADA
Respondent
AND:
IMM-896-04
HUNG PONG MAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION and
THE SOLICITOR GENERAL OF CANADA
Respondent
REASONS FOR ORDER
HENEGHAN, J.
INTRODUCTION
[1] Mr. Hung Pong Man (the "Applicant") seeks judicial review of two decisions, the first being a negative determination of his application for a Pre-Removal Risk Assessment ("PRRA") dated December 3, 2003 and the second, a refusal of his application for exemption on humanitarian and compassionate grounds ("H & C"), from the requirements of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended (the "Act"), to apply abroad for a visa to enter Canada dated December 4, 2003. Each decision was made by the same Immigration Officer, Robert North (the "Officer") and communicated to the Applicant on January 30, 2004.
BACKGROUND
[2] The Applicant is a citizen of the People's Republic of China who entered Canada at Vancouver International Airport in September 1988 as an undocumented arrival. He was landed as a "Group 4" claimant, that is a person for whom no inquiry had been opened but who had indicated his intention to make a refugee claim prior to January 1, 1989. Although the Applicant was qualified for this program, on the basis of his intention to make a refugee claim, he never sought Convention refugee status in Canada.
[3] In late 1988-1989, the Applicant began a common law relationship with Ms. Sui Fong Fung; she became a Canadian citizen in 1995 and a child, Vincent Kit Man, was born to the couple in April 1990.
[4] On June 18, 1991, the Applicant was landed and granted Permanent Resident status pursuant to a special program introduced after the Tian An Men Square massacre.
[5] The Applicant and Ms. Fung married in October 1991 and their second child was born in March 1992.
[6] In May 1992, the Applicant was charged and convicted of two charges of uttering counterfeit money. These convictions were subsequently reversed by the British Columbia Court of Appeal.
[7] On February 12, 1993, the Applicant was charged with possession of a narcotic for the purpose of trafficking. He was convicted on February 16, 1994 and sentenced to a term of imprisonment of four years. After serving sixteen months in jail and four months in a "halfway house", he was released on full parole in October 1995.
[8] The Applicant was the subject of a section 27 report pursuant to the former Immigration Act, R.S.C. 1985, c. I-2, as amended, (the "former Act") . On November 17, 1994 the Applicant was found to be a person described in section 27(1)(d)(i), which later became section 27(1)(d) (amended by S.C. 1992, c. 47, s. 78) and was ordered deported pursuant to section 32(2) of the former Act. He was deprived of his permanent resident status and on November 7, 1995, a Minister's opinion that the Applicant constituted a danger to the public in Canada was issued pursuant to section 70(5) of the former Act.
[9] While on parole following the first conviction for a drug offence, the Applicant was again arrested and charged with possession of narcotics for the purpose of trafficking. He was convicted on February 23, 1998 and sentenced to 38 months imprisonment. After serving 37 months he was released in March 2000. He successfully obtained a stay of execution of the deportation order issued against him on March 31, 2000.
[10] On November 2, 2000, a third child was born to the Applicant and his wife.
[11] On May 16, 2001, an Order was issued in cause number IMM-1618-00, directing that the Minister should not remove the Applicant to China until a risk assessment and determination was made.
[12] On April 22, 2002, the Applicant applied for exemption from the usual requirements to apply for a visa outside Canada, on H & C grounds pursuant to section 25(1) of the Act. On August 23, 2003, Senior Immigration Officer C. Shapka sent the Applicant a letter directing him to attend a personal interview on September 4, 2002. At that time, he was advised that he could present a PRRA.
[13] On October 3, 2002, the Applicant submitted a PRRA application to the PRRA Unit of CIC Vancouver Enforcement. On October 6, 2003, the PRRA Unit contacted the Applicant concerning both his H & C and PRRA applications, inviting him to submit any current information concerning either of those applications. Counsel for the Applicant responded with additional information, documents and submissions concerning both applications on October 31, 2003.
[14] On November 13, 2003, the Officer forwarded a letter to counsel for the Applicant enclosing two documents, that is a memorandum dated September 4, 2001 written by C. Shapka and an excerpt referencing a September 17, 2003 e-mail communication from Ray Bowes, a Canadian Migration Integrity Officer ("MIO") stationed at the Canadian Embassy in Beijing, China. The Applicant was given 15 days within which to submit any final representations and to respond to any errors or omissions that may appear in these two documents.
[15] On November 25, 2003, counsel for the Applicant objected to the Officer's continued involvement with the H & C application on the basis that the manner in which the two applications had been joined together gives rise to an apprehension of institutional bias. The Officer responded on December 1, 2003, declining to recuse himself from the Applicant's case.
[16] On December 3, 2003, the Officer rejected the Applicant's PRRA. On December 4, 2003, the H & C application was also rejected, without a personal interview.
[17] The Applicant was requested to attend at the Vancouver Enforcement Office of the Canada Border Services Agency ("CBSA") on January 30, 2004. He was then advised of the negative PRRA and H & C decisions. He was also advised that he was being arrested and detained for removal to China on February 3, 2004.
[18] On February 16, 2004, Orders were issued, staying the operation of the removal orders pending disposition of the two applications for judicial review relative to the negative PRRA and H & C decisions.
THE PRRA DECISION
[19] In determining the PRRA application, the Officer concluded that the Applicant did not have a personalized fear of persecution, risk of torture, risk to life or of cruel and unusual treatment or punishment if returned to China. Accordingly, the Applicant did not meet the requirements for protection pursuant to sections 96 or 97 of the Act.
[20] In particular, the Officer found that since the Applicant is a person described in section 112(3)(b) of the Act, that is a person who has been convicted of an offence in Canada that is punished by a term of imprisonment of at least two years, then pursuant to section 113(d), only those factors set out in section 97 will be considered in assessing the PRRA application. These sections provide as follows:
| 112(3) Refugee protection may not result from an application for protection if the person ... (b) is determined to be inadmissible on grounds of serious criminality with respect to a conviction in Canada punished by a term of imprisonment of at least two years or with respect to a conviction outside Canada for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; ...
113. Consideration of an application for protection shall be as follows: ... (d) in the case of an applicant described in subsection 112(3), consideration shall be on the basis of the factors set out in section 97 and (i) in the case of an applicant for protection who is inadmissible on grounds of serious criminality, whether they are a danger to the public in Canada, or (ii) in the case of any other applicant, whether the application should be refused because of the nature and severity of acts committed by the applicant or because of the danger that the applicant constitutes to the security of Canada.
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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112(3) L'asile ne peut être conféré au demandeur dans les cas suivants_: ... b) il est interdit de territoire pour grande criminalité pour déclaration de culpabilité au Canada punie par un emprisonnement d'au moins deux ans ou pour toute déclaration de culpabilité à l'extérieur du Canada pour une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d'un emprisonnement maximal d'au moins dix ans; ...
113. Il est disposé de la demande comme il suit_: ... d) s'agissant du demandeur visé au paragraphe 112(3), sur la base des éléments mentionnés à l'article 97 et, d'autre part_: (i) soit du fait que le demandeur interdit de territoire pour grande criminalité constitue un danger pour le public au Canada, (ii) soit, dans le cas de tout autre demandeur, du fait que la demande devrait être rejetée en raison de la nature et de la gravité de ses actes passés ou du danger qu'il constitue pour la sécurité du Canada.
97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays don't 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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[21] The Officer's notes to file, which essentially constitute the reasons for his decision, show that he considered the following materials:
1. all documentation concerning the Applicant's PRRA application;
2. the contents of the Applicant's immigration file, including the memorandum dated September 4, 2001, from C. Shapka;
3. the extract from the e-mail dated September 17, 2003 from MIO Bowes;
4. the letter dated November 25, 2003 from the Applicant's counsel;
5. reports from Amnesty international, Human Rights Watch and the United States Department of State; and
6. a number of relevant Immigration and Refugee Board ("IRB") reports prepared by the Research Directorate between 1999 and 2003.
[22] Among other things, the Officer concluded that the Applicant's successful application to the Federal Court in 2001, challenging the execution of the deportation order issued against him as a result of the Minister's danger opinion, would not be viewed by Chinese authorities as an attempt to harm the reputation of China, even if it had come to the attention of the Chinese authorities. This assessment was made in response to the Applicant's submission that he may be at risk in China as a result of his illegal exit from that country, his participation in protests against the Chinese government, incidents of persecution that he had faced in China, and his criminal convictions in Canada.
[23] The Officer addressed all of these issues and in particular, the Applicant's claim that he was at risk of torture, cruel and unusual treatment or punishment, or the death penalty in China as a result of his two criminal convictions in Canada for trafficking in narcotics.
[24] The Officer noted that Article 10 of the Criminal Law of the People's Republic of China authorizes the authorities to retry and possibly convict a Chinese citizen for an offence committed in a foreign country, for which that Chinese citizen has already been convicted and tried in that foreign country. The Officer also noted that this possibility is recognized in the reports published by Amnesty International, Human Rights Watch and the United States Department of State.
[25] Notwithstanding these reports, the Officer concluded that on the basis of the evidence before him, it was unlikely that the Applicant would be persecuted by the Chinese authorities for offences committed and punished in Canada. In this regard, the Officer referred to an IRB report that cited the opinion of a specialist in Chinese law stating that he was "unaware of any cases in which the government of Canada had retried individuals for crimes committed outside of China and for which sentences have already been served."
[26] As well, the Officer relied on a memorandum written by C. Shapka, dated September 4, 2001, commenting on the Applicant's concern that he would face a retrial of his drug offences if returned to China, as follows:
Contrary to counsel's opinion [that the] subject faces risk, there is no evidence to substantiate [that] any person convicted in Canada of a drug offence faces severe sanctions or execution on their return to the PRC. I have personal knowledge of four individuals I removed from Canada to China in the last four years who were all convicted of drug offences that resulted in more severe penalties than the subject's, and none were tried for those offences on their return to China. In fact, two of the individuals subsequently returned to Canada illegally and were deported a second time. Only one of them stated he was jailed on his first return to the PRC for exiting the country illegally (sentenced to a labour farm for 12 months but escaped after 3) and the second previous deport claimed no jail time at all on return.
[27] The Officer further noted that Officer Shapka referred to a conversation with an Intelligence Liaison Officer, now known as an MIO, who had advised her that he was unaware of anyone who had been retried upon return to China.
[28] The Officer acknowledged that the IRB report and the Shapka memorandum were more than three years old and should be accorded limited weight as evidence of current conditions in China. However, the Officer referred to more recent communications dated September 17, 2003 from MIO Bowes to support his conclusion. MIO Bowes had expressed the opinion that "the bottom line is that a Chinese national would very rarely be tried again for a crime committed in a foreign country". Alternatively, on the basis of the material before him, the Officer concluded that it is unlikely that the Chinese authorities would retry the Applicant in relation to the drug offences for which he had been convicted in Canada.
THE H & C DECISION
[29] In assessing the Applicant's H & C submissions, the Officer considered letters of support from Ms. Fung, her brother and his wife, the Applicant's mother and his two older children, as well as a report from his daughter's doctor, the Applicant's H & C application, counsel's letters dated October 31, 2003 and November 25, 2003, the PRRA decision of December 3, 2003, IRB report CHN35869.E dated November 20, 2000 and a United States Department of State report dated March 31, 2003.
[30] Among other arguments, the Applicant relied upon his role as the sole supporter of his family since he worked on a full-time basis, apart from the time when he was in prison. He claimed that he would face unusual and undeserved hardship if required to return to China, having regard to the fact that he had been convicted in Canada for two serious drug offences.
[31] He argued that the geographic separation resulting from his return to China, while his family stayed in Canada, would impose a hardship. If his family were to accompany him to China, his children would be at a significant disadvantage in China since they have been educated in English to date. Further, the Applicant's daughter suffers from a serious thyroid condition for which she requires special medical treatment and medication. The Applicant also referred to the "one child" policy in China and submitted that his family might face differential and adverse treatment.
[32] The Officer concluded that the Applicant had not established that there was a reasonable chance that he would be persecuted nor that he would suffer undue hardship if he had to return to China to apply for permanent residence. The Officer provided a number of specific reasons for denying the Applicant's H & C application.
[33] The Officer noted that although the Applicant had supported his family through his earned income, the family was supported by social assistance during the times that the Applicant had been in prison. He also noted that the Applicant's wife had extended family in Vancouver and while a one-parent family is not ideal, he found this to be a reasonable alternative to the family accompanying the Applicant to China.
[34] Further, the Officer found that all the Applicant's children were Canadian citizens, having been born in Canada. Accordingly, he found it speculative to assume that the wife, who is a Canadian citizen, and children would accompany the Applicant to China.
[35] The Officer acknowledged that one child suffered from a congenital medical problem. He noted that there was no evidence offered about the possibility of obtaining medical treatment if she went to China, he agreed that the necessary medicine and periodic treatment may not be available in China.
[36] The Officer also addressed the Applicant's concerns about possible discrimination to his wife and daughter in China on the basis of gender. He concluded that these concerns are moot if the wife and children stay in Canada.
[37] Alternatively, the Officer noted that although the country documentation suggests that violence and gender discrimination are problems in China, the documentary materials indicate that the government has made an effort since 1949 to promote gender equality and have passed laws to achieve that goal.
[38] As well, the Officer observed that the designation of the Applicant as a "Danger to the Canadian Public" and his involvement in two serious criminal acts to import narcotics into Canada are important considerations. The Officer inferred that the Applicant's personal responsibilities to his family did not deter him from these activities. After analysing the nature, timing and scope of the Applicant's criminal activities and his designation as a danger to the Canadian public, the Officer concluded that these factors outweighed the understandable and genuine desires of his wife and children that their husband and father remain in Canada.
DISCUSSION
[39] These two applications for judicial review arise from the same facts, that is the history of the Applicant's activities in Canada since his arrival in 1988. In 1991, the Applicant had obtained permanent resident status. In 1994, he lost that status when he was found to be a person described in section 27(1)(d) of the former Act and ordered deported pursuant to section 32(2) of that Act.
[40] Each of these applications involves a review of the exercise of discretion by the decision-maker. In respect of the application for judicial review of the negative PRRA decision, there is presently some uncertainty whether the applicable standard of review is reasonableness simpliciter or a standard of patent unreasonableness; see Sidhu v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 30 (T.D.) at paragraph 7 and Joseph v. Canada (Minister of Citizenship and Immigration) (2004), 248 F.T.R. 105 (T.D.) at page 111. In my opinion, it is not necessary to determine the appropriate standard since the decision in question satisfies the more stringent test of reasonableness simpliciter.
[41] In my opinion, the decision of the Officer in relation to the PRRA application was fairly made, having regard to the evidence that was before him. The Applicant raised the issue of institutional bias based upon the alleged involvement of Officer C. Shapka in preparing a memorandum that was part of the Applicant's file, however this argument was abandoned at the oral hearing of this matter on October 27, 2004.
[42] Contrary to the submissions of the Applicant, there is no basis to conclude that the Officer failed to consider the evidence that was before him, including the material that was submitted by the Applicant.
[43] Insofar as the Applicant argued that the Officer erred in applying the standard of probabilities to assessing the factors outlined in section 97 of the Act, I disagree. In light of the decision of this Court in Li v. Canada (Minister of Citizenship and Immigration, [2003] F.C.J. No. 1934 (T.D.), aff'd. 2005 FCA 1, this is the applicable standard and the Officer did not err in applying it.
[44] Accordingly, there is no basis for judicial intervention relative to the negative PRAA decision and this application for judicial review is dismissed.
[45] As for the disposition of the Applicant's challenge to the rejection of his H & C application, the first question is the identification of the applicable standard of review. The H & C application process involves the exercise of the discretion conferred by section 25 of the Act which provides as follows:
| 25. (1) The Minister shall, upon request of a foreign national who is inadmissible or who does not meet the requirements of this Act, and may, on the Minister's own initiative, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligation of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests of a child directly affected, or by public policy considerations. (2) The Minister may not grant permanent resident status to a foreign national referred to in subsection 9(1) if the foreign national does not meet the province's selection criteria applicable to that foreign national. |
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25. (1) Le ministre doit, sur demande d'un étranger interdit de territoire ou qui ne se conforme pas à la présente loi, et peut, de sa propre initiative, étudier le cas de cet étranger et peut lui octroyer le statut de résident permanent ou lever tout ou partie des critères et obligations applicables, s'il estime que des circonstances d'ordre humanitaire relatives à l'étranger - compte tenu de l'intérêt supérieur de l'enfant directement touché - ou l'intérêt public le justifient. (2) Le statut ne peut toutefois être octroyé à l'étranger visé au paragraphe 9(1) qui ne répond pas aux critères de sélection de la province en cause qui lui sont applicables.
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[46] This decision is reviewable on the standard of reasonableness simpliciter: see Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.
[47] The Applicant again raised an argument of bias in relation to the negative H & C decision, in particular arising from the manner in which the decision was delivered. The negative H & C decision was delivered at the same time he received the negative PRRA decision. The Applicant submitted that this suggests some collusion between various employees and agents who were involved in that decision. Again, the Applicant abandoned this line of argument at the hearing of this matter.
[48] I am satisfied that the Officer made a reasonable decision on the basis of the evidence and arguments that were before him. He considered the circumstances of the Applicant. He addressed and considered the best interests of the Applicant's children, including their status as Canadian citizens.
[49] In the circumstances and having regard to the evidence before the Officer and the submissions advanced on behalf of the Applicant, I conclude that the Officer did not commit a reviewable error in his assessment of the H & C application. There is no basis for judicial intervention and this application for judicial review is dismissed.
[50] Counsel for the Applicant submitted proposed questions for certification and counsel for the Respondent objected to the certification of any question. I am not persuaded that the underlying applications for judicial review give rise to a "serious question of general importance", as required by section 74(d) of the Act. I do not propose to certify any questions.
[51] These Reasons are to be filed in IMM-895-04 and a copy placed in IMM-896-04.
"E. Heneghan"
J.F.C.
OTTAWA, ONTARIO
January 20, 2005
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKETS: IMM-895-04 and IMM-896-04
STYLE OF CAUSE: HUNG PONG MAN v. MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: October 27, 2004
REASONS FOR ORDER
AND ORDER: Heneghan, J.
APPEARANCES:
Ms. Negar Azmudeh and for Applicant
Mr. Darryl W. Larson
Ms. Esta Resnick for Respondent
SOLICITORS OF RECORD:
Embarkation Law Group for Applicant
Vancouver, British Columbia
John H. Sims, Q.C. for Respondent
Deputy Attorney General of Canada