Date: 20041202
Docket: IMM-7771-03
Citation: 2004 FC 1692
Vancouver, British Columbia, Thursday, the 2nd day of December, 2004
Present: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
ALICE ZHI HONG FAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Applicant, Alice Zhi Hong Fan, is a citizen of China. The Applicant arrived in Canada in May 2001 and made a refugee claim in September 2001. Shortly after her arrival in Canada, the Applicant began to attend weekly Falun Gong ("FLG") sessions. Because of her membership in the FLG religion, the Applicant claims to be at risk of torture, risk to life or at risk of cruel and unusual treatment or punishment if she returns to China.
[2] The Applicant's refugee protection claim was heard in November 2002 and refused in December 2002.
[3] The Applicant applied for a pre-removal risk assessment ("PRRA") on July 31, 2003. In a decision dated September 10, 2003, a PRRA Officer concluded that the Applicant was not at risk as described in s. 96 or s. 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"). The Applicant seeks judicial review of that decision.
ISSUES
[4] The Applicant raises the following issues:
1. Did the PRRA Officer err by disregarding relevant evidence?
2. Did the PRRA Officer err by imposing too high a standard of proof under s. 97 of IRPA?
3. Did the PRRA Officer err by improperly applying the law regarding freedom of religion?
4. Did the PRRA Officer err by failing to consider the best interests of the child?
[5] However, I believe that the first issue to address in this case, and the determinative issue, is whether the PRRA Officer's decision was patently unreasonable in that he based his decision on irrelevant considerations.
ANALYSIS
[6] The standard of review to be applied to the decision of the PRRA Officer is that of patent unreasonableness (Liang v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1904). Generally speaking, this means that the decision should be upheld unless that decision is entirely unsupported by the evidence. However, a decision may also be patently unreasonable if the Officer took into account irrelevant factors or failed to properly consider the evidence before him.
[7] The PRRA Officer was very well aware of the risks of persecution to FLG practitioners. He noted that members and practitioners of FLG have been persecuted in the past and can reasonably be expected to be at risk of persecution, torture, risk to life and cruel and unusual treatment or punishment in China in the future and known FLG practitioners who have never demonstrated in public have been targeted for persecution by the Chinese authorities. Indeed, the dangers are described in such serious terms that, after reading the decision, I am left with the distinct overall impression that the PRRA Officer would have accepted the Applicant's claim for protection but for two key determinations:
1. The Applicant could hide her FLG practices from the authorities;
2. The need to keep her religious beliefs from the authorities would only be for the short period of time it would take for her Canadian husband to complete the sponsorship process.
[8] Implicit in the analysis is a conclusion that keeping her FLG practices hidden for any longer period of time than that required for a sponsorship application would be difficult. The logical question that arises is whether the Applicant would be in need of protection if the sponsorship application is not processed expeditiously and successfully.
[9] With respect to the Officer's determination that the Applicant's beliefs need not come to the attention of the authorities, I am satisfied that this conclusion was open on the evidence before the PRRA Officer. The cases referred to by both the Applicant and the Respondent on religious freedom (Fosu v. Canada (Minister of Employment and Immigration) (1994), 90 F.T.R. 182; Syndicat Northcrest v. Amselem, 2004 SCC 47; (2004), 241 D.L.R. (4th) 1) revolve very much around the particular circumstances and personal beliefs of the individuals affected. Although the Applicant practised FLG in a public place in Vancouver, she did not indicate that this public gathering was an important element of her beliefs. The Applicant stated that she practises FLG at home as well as at a public park. Her former counsel, in his submissions on her behalf to the PRRA Officer, acknowledged that she could practise her religion privately. On the particular facts of this case as presented by the Applicant, it was reasonably open to the Officer to conclude that practising privately would not be a serious infringement of her ability to be a FLG practitioner.
[10] The second factor weighed by the PRRA Officer - that she would only be in harm's way for a short period of time - is far more troubling. How could the PRRA Officer be so certain that the Applicant's husband would be successful in the sponsorship application? What guarantees are there that the Applicant would pass all of the necessary medical and security checks? This conclusion was simply not based on considerations that can be supported by the evidence before the Officer. Nor was it relevant to the PRRA Officer's decision. It was patently unreasonable.
[11] As noted earlier, the decision appears to link these two conclusions. In the circumstances, it is difficult for me to assess whether one or both of these two findings was determinative for the PRRA Officer. Accordingly, the error identified is, in my view, fatal to the decision as a whole.
[12] I conclude that the decision should not stand, even on the very deferential standard of review.
[13] Given this conclusion, there is no need to address the issues raised by the Applicant.
[14] Neither party requested that I certify a question. None will be certified.
ORDER
THIS COURT ORDERS that:
1. The application is allowed and the matter referred back for redetermination by a different PRRA Officer; and
2. No question of general importance is certified.
(Sgd.) "Judith A. Snider"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7771-03
STYLE OF CAUSE: ALICE ZHI HONG FAN v. THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: November 30, 2004
REASONS FOR ORDER AND ORDER: SNIDER J.
DATED: December 2, 2004
APPEARANCES:
Ms. Antya Schrack FOR APPLICANT
Mr. Peter Bell FOR RESPONDENT
SOLICITORS OF RECORD:
Antya Schrack FOR APPLICANT
Barrister & Solicitor
Vancouver, BC
Mr. Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada