Date: 20050907
Docket: IMM-7224-04
Citation: 2005 FC 1222
BETWEEN:
ZHUAN NU LIANG
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
[1] The Applicant, Ms. Zhuan Nu Liang, seeks judicial review of the decision of Robert North, a Pre-Removal Risk Assessment Officer ("PRRA Officer") dated July 20, 2005. The Applicant was married in 1983 and is the mother of three children.
[2] After arriving in Canada in April 2001, the Applicant's refugee claim was heard on January 25, 2005, and a negative decision issued on April 22, 2002. The claim was based on the Applicant's membership in the class of Chinese women subjected to domestic abuse for which there was no state protection. The Board determined that there was both an Internal Flight Alternative and state protection available.
[3] The Refugee Board wrote "the claimant, during her oral testimony, was articulate, sophisticated and presented herself as being a confident business woman." It also relied on an Associated Press article dated April 29, 2001:
After heated debate, China's legislature has passed sweeping revisions to the nation's marriage law to curb extramarital affairs and spousal abuse, state media said Sunday.
The revisions, passed almost unanimously be senior legislators on Saturday, ban unfaithful spouses from living with their lovers. They also empower victims of domestic violence to seek official protection and police punishment for abusers.
State media expressed hope that the changes would help stabilize Chine marriages and curb wife-beating.
[4] In the July 20, 2005 PRRA decision presently under review, the Officer found the Applicant to be credible and believed that she had been the victim of domestic violence during the time she was living with her husband. He described her experience as a "serious series of assaults" over a period of several years at the hands of her husband and, as such, concluded that she was a member of the social group of abused women.
[5] The Officer believed that the Applicant had sought the protection of the police on one occasion in 1991 and was not given any assistance. However, he determined that there was insufficient evidence to show that the Applicant was still at risk and also concluded that the one attempt to gain assistance from the police was insufficient to rebut the presumption of state protection. The Officer notes that he "must rely heavily on the country reports" as the basis for the decision in light of scant evidence provided by the Applicant on her current situation.
[6] Certain documents, namely a psychological report, the psychologist's CV and various attachments to the Post-Determination Refugee Claimants in Canada ("PDRCC") Class submissions (the "missing documents"), were not included in the Certified Tribunal Record ("CTR"). The Applicant requested that the CTR be amended to add the missing documentation; the request was denied.
[7] It is alleged that the Officer erred in reaching the conclusion that the Applicant failed to rebut the presumption of state protection. The Applicant cites documentary evidence to support the conclusion that there is still a great deal of domestic violence in China and that legislation is incomplete and ineffective in dealing with the issue of domestic violence.
[8] The Respondent submits that a reading of the decision shows that the Officer acknowledges how deeply entrenched the history of domestic violence is in China. He also notes changes to and improvements in the legislation, as well as changes to public attitudes to such violence. Where the Officer has not ignored evidence, it is within his or her purview to reach conclusions based on that evidence. It is not for this Court to re-weigh that evidence, even if this Court would have reached a different conclusion (Suresh v. Canada (Minister of Employment and Immigration) [2002] S.C.R. 1).
[9] Regarding the presumption of state protection, the Officer notes that the one and only time the Applicant approached the police was in 1991: the Applicant was turned away without an offer of assistance. This is acknowledged by the Officer.
[10] The Applicant bears the burden of providing "clear and convincing confirmation of a state's inability to protect" (Canada (Attorney General) v. Ward [1993] 2 S.C.R. 689 at 723-726). The Officer found this burden was not met and I must agree. There was no evidence before the Officer that the Applicant was at any risk and no reason for her not to return to the police if the problem persisted. It should be noted that the last time the Applicant went to the police was in 1991, some fourteen years ago.
[11] Where there is no evidence from the Applicant to indicate otherwise, it was open to the Officer to conclude that in 14 years things have improved in China and the Applicant would be able to seek assistance now. As the Officer notes, the proper approach is to consider future risk and to assess potential for risk upon the applicant's return.
[12] The documentary evidence confirms that problems still exist with respect to abused women in China, but since April 2001 considerable changes to domestic and matrimonial law have been introduced, and the state is providing more enforced supervision.
[13] The Applicant offered no evidence regarding whether her husband was still a threat; this conclusion is reasonable considering that she has been in Canada since 2001. It is trite law that the Applicant must put her best evidence forward and the Officer is not required to seek out facts to confirm her allegations of lack of protection.
[14] In summary, the decision of the Officer indicates that all the evidence before him was considered. If the Applicant wanted the Officer to consider other aspects of her situation, the burden was on her to advance evidence before the decision-maker.
[15] The Applicant now alleges, but cannot provide evidence, that the psychological report was before the Officer and ignored. Much of the Applicant's present argument is based on the findings in that report. Such evidence was not before the decision-maker and cannot now be considered. In reply, counsel for the Respondent submits that even if the psychological reports had been before the Officer, they were advanced for the purpose of reinforcing the Applicant's allegations that she suffered trauma because of the physical abuse suffered at the hands of her husband. This aspect was never in doubt and was accepted as such by the PRRA Officer.
[16] The jurisprudence relied on by the Applicant (Diaz v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1925, and Cuffy v. Canada (Minister of Citizenship and Immigration) [1996] F.C.J. No. 1316) was to the effect that the Board had to be satisfied of the state's inability to protect and, if a statutory legislative framework existed, whether the authorities were unwilling or unable to implement the framework. No such evidence was advanced, nor has the Applicant tested the police resolve, since the new legislation only came into force after her departure.
[17] Where the decision is reasonable, this Court will not re-weigh the evidence. In the present matter, I can see no patently unreasonable conclusion based on the evidence before the Officer. The application is dismissed.
(Sgd.) "P. Rouleau"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7224-04
STYLE OF CAUSE: ZHUAN NU LIANG
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: September 6, 2005
REASONS FOR ORDER: ROULEAU J.
DATED: September 7, 2005
APPEARANCES:
Mr. Peter Dimitrov FOR APPLICANT
Ms. Banafsheh Sokhansanj FOR RESPONDENT
SOLICITORS OF RECORD:
Peter Dimitrov FOR APPLICANT
Barrister & Solicitor
Vancouver, BC
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada