Federal Court Decisions

Date: 200510011

Docket: IMM-9923-04

Citation: 2005 FC 1373

OTTAWA, Ontario, this 11^th day of October, 2005

PRESENT:    THE HONOURABLE MR. JUSTICE ROULEAU

BETWEEN:

HUI JUN XU

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

[1]    This is and application for judicial review under s. 72(1) of the Immigration and Refugee Protection Act S.C. 2001 c. 27 (the "IRPA"), of the decision of A Pre-Removal Risk Assessment ("PRRA") Officer, dated September 30, 2004, in which the PRRA Officer denied the applicant's application for a visa exemption on humanitarian and compassionate (H & C) grounds.

[2]    The applicant, Hui Jun Xu, is a citizen of the People's Republic of China ("China"). She arrived in Canada on April 3, 2001. She applied for refugee status on May 16, 2001. On February 1, 2002, the Refugee Protection Division of the Immigration and Refugee Board determined that the applicant was not a Convention refugee or a person in need of protection.

[3]    In January 2004, the applicant married Jian Hui Wu, who is also a citizen of China, and a failed refugee claimant in Canada.

[4]    The applicant has a female child named Jaqueline, born in Canada on December 18, 2001. At the time of the Officer's decision, the applicant was expecting a second child, due in April 2005. The child was born in April 2005 according to counsel.

[5]    The applicant applied for a visa exemption, based on H & C ground, which was refused by the Officer on September 30, 2004.

[6]    In the decision, the Officer dealt with three main grounds on which the applicant based her application: (i) the best interests of the child(ren) concerned; (ii) the risk she will face if returned to China for violating the Chinese "one child policy"; and (iii) the applicant's establishment in Canada.

[7]    With respect to the best interests of the child, the Officer considered a letter from Dr. Simon Ko, dated August 20 2004, in which the applicant's daughter was "observed to have a behavioural disorder suggestive of ADHD (Attention Deficit Hyperactive Disorder)". The Doctor hypothesizes in the letter that the applicant's, "daughter may have better medical treatment and social service resources in Canada than in China if she is send back there."

[8]    The Officer notes that the applicant's daughter has not actually been diagnosed with ADHD, but merely exhibits behaviour suggestive of ADHD. The Officer also notes that the Doctor's letter regarding the relative treatments available in Canada and China is speculative, and the Officer is not persuaded that Dr. Ko is qualified to offer such an opinion.

[9]    The Officer goes on to consider the fact that the minor child will be unable to claim Chinese citizenship, and will be denied medical services, schooling, and other social services. The Officer considers the documentary evidence which states that a child born abroad whose parents have both settled abroad will not have Chinese nationality. However, the Officer finds that the applicant would not be viewed by Chinese authorities as having settled abroad, given that she has neither permanent nor temporary status in Canada. Since the applicant is without status in Canada, the Officer finds that she would not be considered to have settled abroad, and therefore her daughter will not be refused Chinese citizenship on these grounds.

[10]                        The second issue which the Officer deals with is the Birth Control Management Regulations of the People's Republic of China. Each child born outside the allowance of one child in China will incur a fine on the parent(s). The Officer finds that the payment of such a fee does not constitute a risk to the applicant's life or to the security of the person.

[11]                        The applicant also makes the argument that she would have to abort the child, and undergo sterilization. As the child was born in April 2005, the consideration of abortion is a moot point. The Officer did find that there was no compelling evidence that the applicant would be forced to abort her child, or undergo sterilization, if she was returned to China prior to the birth of the child.

[12]                        On the second issue, the one child policy, the Officer finds that the fine imposed would not constitute a risk to the applicant's life or to the security of the person, and finds no compelling evidence that the applicant would, or could, be compelled to abort the child, or face sterilization, upon return to China.

[13]                        Finally, on the subject of establishment in Canada, the Officer concludes that, upon her return to China, the applicant would not face a hardship that is undue, unusual, or disproportionate. The Officer notes that the applicant will have to find accommodation and employment, but notes that accommodation and employment are difficulties that all returning migrants face, and are not factors that warrant exceptional (H & C) consideration.

[14]                        The applicant raises three issues:

a.        Whether the Officer failed to consider the personalized risk to the applicant, upon her return to China;

b.       Whether the Officer failed to consider relevant evidence; and

c.        Whether the Officer failed to consider the best interests of child(ren) directly affected.

[15]                        The applicant argues that the Officer failed to consider the personalized risk she faces upon return to China, to wit the risk she faces as a known refugee claimant in Canada.

[16]                        The Officer did note that the applicant was a failed refugee claimant in Canada. To allow a person to remain in Canada after a failed refugee claim, based only on the failed refugee claim, would be a circular argument that defeats the refugee system. To allow an H & C claim based on a failed refugee claim would be a non sequitur, and cannot be allowed.

[17]                        With respect to the remaining grounds raised by the applicant, I am of the opinion that the Officer's decision was reasonable on each of the issues, save for the issue of the best interests of both children directly affected. The Officer erred in speculating on the implications of the birth of the second child, and erred on the analysis of the status of the older child in China.

[18]                        Some guidelines for treatment of evidence by the Board were laid out by Dawson J. in Akhigbe v. Canada (Minister of Citizenship and Immigration), 2002 FCT 249, [2002] F.C.J. No. 332, at para 11:

¶ 11       It is for the CRDD to assess the weight to be given to evidence, and not for this Court to simply substitute its own view of the evidence. Findings of fact made by the CRDD are to be reviewed on the most deferential standard of review, and should only be interfered with if made in a perverse or capricious manner or without regard for the material before the CRDD.

[19]                        I am of the opinion that the Officer came to an unreasonable conclusion with respect to the best interests of the children. The applicant raises arguments that the Officer failed to consider the out-of-plan birth fine, for a woman who became pregnant before leaving China, as well as an argument that only Chinese citizens who are out of China on "ordinary business" are exempt from the fine. The applicant's concerns are valid. It is trite law that the Court will not interfere in a matter where the question concerns a law of general application in the applicant's country of origin, but the officer did not draw a link between the law of general application and the status of the younger child, if she were returned to China. The officer's conclusion that the fines were valid laws of general application was reasonable, but the failure to deal with the second child's status in China is not reasonable, as no material link was drawn to show that the second child would qualify for the academic and medical system in China. If the second daughter does not qualify for medical, social, and academic considerations in China, it is in the best interest of the child to remain in Canada.

[20]                        The Supreme Court of Canada noted in Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 S.C.R. 817, that the Officer must be alive, attentive, and sensitive to the best interests of the child(ren) with respect to an H & C application. In the IRPA, s. 25 expressly refers to be best interests of a child directly affected:

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.

(emphasis is mine)

[21]                        Despite the fact that the officer's decision was reasonable in all other respects, I am of the opinion that the officer erred in speculating on future occurrences, to wit the potential outcomes and implications of the birth of the second child. The fact is that the second child has now been born in Canada, and the matter should now be properly reconsidered by the board, without speculation by the Board member with respect to the second child.

[22]                        The Officer also erred in considering the status of the older child, in respect of the mother's lack of status in Canada. The officer concluded, without evidence, that the lack of status in Canada is sufficient to show that the applicant has not "settled abroad", for the purposes of the older child's assessment of medical, social, and schooling services if she were returned to China. I am of the opinion that the Officer's decision cannot stand, given the speculative nature of the decision with respect to the younger child, and the lack of evidence with respect to the older child's status in China, should she be returned. The Officer erred in his failure to be alert, attentive, and sensitive to the best interests of the children directly affected by the decision, and, as a result, the Officer's decision cannot stand. The matter should be re-examined, with specific regard to the best interests of the children directly affected by the decision (s. 25 IRPA, Baker).

ORDER

THIS COURT ORDERS that the application for judicial review is allowed, and the matter is remitted to a differently constituted panel for consideration, with specific regard to the best interest of the children directly affected. No question is certified.

"Paul U.C. Rouleau"