SHAOLING CAO Applicant v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION, 2020 FC 500

Date: 20200408 Docket: IMM-2264-19 Citation: 2020 FC 500 Ottawa, Ontario, April 8, 2020 PRESENT: The Honourable Mr. Justice Ahmed BETWEEN: SHAOLING CAO Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent JUDGMENT AND REASONS I. Overview [ 1 ] This case concerns the decision of a Senior Immigration Officer (the " “Officer” " ) dated March 1, 2019, refusing the Applicant’s application for a Pre-Removal Risk Assessment ( " “ PRRA ” " ) under

section 112 of the Immigration and Refugee Protection Act , SC 2001, c 27 ( " “ IRPA ” " ). [ 2 ] For the following reasons, the Officer’s decision is reasonable. This application for judicial review is dismissed. II. Facts [ 3 ] Ms. Shaoling Cao (the " “Applicant” " ) is a citizen of China. In August 2015, the Applicant entered Canada and claimed refugee protection based on her claim that she was a Falun Gong practitioner. In February 2016, the Refugee Protection Division ( " “RPD” " ) refused her claim, finding that the Applicant was not a credible witness.

In October 2016, the Applicant failed to appear for an interview with the Canada Border Services Agency ( " “CBSA” " ), and an arrest warrant was issued against her. The Applicant was arrested on December 12, 2018, and was offered the opportunity to apply for a PRRA, which she did on January 2, 2019. [ 4 ] In her PRRA application, the Applicant alleged a sur place claim that she now faces risk from loan sharks in China due to her father’s gambling debts. She alleged a fear that the loan sharks would harm her in order to threaten her father.

The Applicant also claimed that she became depressed due to these fears and due to her arrest by CBSA, following which she decided to convert to Christianity on December 23, 2018. [ 5 ] On March 1, 2019, the Officer refused the PRRA application, concluding that the Applicant would not face risk as defined in sections 96 or 97 of the IRPA . The Officer found that the Applicant had not rebutted the presumption of state protection, as the country condition evidence did not establish that Chinese authorities could not assist the Applicant regarding her alleged fear of the loan sharks.

The Officer concluded that state protection in China " “continues to be operationally adequate” " . According to the Officer, as adequate state protection would be available, this finding was fatal to the Applicant’s claims under both sections 96 and 97 of the IRPA . [ 6 ] On the Applicant’s claims of depression, the Officer determined that the Applicant did not provide sufficient evidence on two key matters. First, the Officer found insufficient evidence to establish that the Applicant currently suffers from depression.

Second, the Officer found that the Applicant had failed to demonstrate the lack of treatment options in China. [ 7 ] The Officer also noted statements in the PRRA application that referred to threats from Sri Lankan authorities. After reviewing the record, the Officer found that these statements were likely entered in error and did not pertain to the Applicant. Nevertheless, because the Applicant had marked " “Yes” " and " “China” " in response to a question asking whether she was wanted by state authorities in any country, the Officer reviewed the record for relevant evidence to support this claim.

The Officer concluded that the Applicant had failed to substantiate her response to this question. III. Issues and Standard of Review [ 8 ] The issue on this application for judicial review is whether the Officer’s decision is reasonable, and in particular: A . Did the Officer err in assessing the Applicant’s sur place claim? B . Did the Officer err in analyzing state protection? C . Did the Officer err by presuming that the Applicant was wanted by Chinese authorities? D .

Did the Officer err in discounting or ignoring the Applicant’s supporting documents without acknowledging them or providing sufficient reasons?

[9] Prior to the Supreme Court’s recent decision in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov], the reasonableness standard applied to the review of a PRRA officer’s decision: Azzam v Canada (Citizenship andImmigration), 2019 FC 549 at para 13.

There is no need to depart from the standard of review followed in previousjurisprudence, as the application of the Vavilov framework results in the same standard of review: reasonableness. [10] As noted by the majority in Vavilov, "“a reasonable decision is one that is based on an internally coherent and rational chain ofanalysis and that is justified in relation to the facts and law that constrain the decision maker,”" (Vavilov at para 85).

Furthermore, "“thereviewing court must be satisfied that there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit therequisite degree of justification, intelligibility and transparency,”" (Vavilov at para 100). IV. Analysis [11] The Applicant alleges that the Officer erred in the following ways: (

A) the Officer unreasonably assessed the Applicant’s sur placeclaim based on her mental health, her Christian faith, and her alleged fear of loan sharks; (

B) in analyzing state protection, the Officerfailed to assess the Applicant’s personal risk, made a veiled credibility finding, and failed to conduct an oral hearing; (

C) the Officerpresumed that the Applicant was wanted by Chinese authorities; and (

D) the Officer discounted or ignored the Applicant’s supportingdocuments without acknowledging them or providing sufficient reasons. A. Sur Place Claim

(1) Mental health [12] The Applicant alleges that the Officer analyzed her mental health from the wrong perspective. The Officer found that she hadfailed to demonstrate (

i) that she currently suffers from depression, and (ii) that treatment was not available to her in China. TheApplicant argues that the analysis should have focused on the prospective risk associated with her mental condition as an element ofrisk. To support this argument, the Applicant cites Nagarasa v Canada (Citizenship and Immigration), 2018 FC 313 [Nagarasa] at paras26 to 28, in which this Court raised concerns with a PRRA officer’s treatment of an applicant who had attempted suicide and sufferedfrom depression. The Applicant emphasizes that she is not claiming that she currently experiences depression.

Instead, she is claimingthat she previously suffered from depression when she was in China due to her father’s gambling, and she fears that returning to Chinawill trigger this depression. [13] The Applicant further argues that her mental health is likely to deteriorate due to the stress associated with removal. She submitsthat the Officer should have considered the difference between the harm of removal and the treatment available in China (Shah v Canada(Citizenship and Immigration), 2011 FC 1269 [Shah]).

When an officer is faced with evidence of risk of suicide resulting fromremoval itself, the officer must "“determine whether putting the Applicant through removal and its potential for possibly leading tosuicide amounted to undue, undeserved or disproportionate hardship”" (Shah at para 58). [14] At the outset, the Respondent notes that the Applicant’s written argument erroneously refers to "“irreparable harm”" at severalpoints, which is not the relevant test for an officer considering risk under sections 96 or 97 of the IRPA. [15] The Respondent submits that the Applicant failed to meet her onus to establish the risks that she alleges.

The Officer concludedthat the Applicant had failed to demonstrate that she is currently suffering from depression. The Respondent argues that this conclusionwas reasonable due to the insufficiency of the evidence. [16] The only objective evidence was a certificate from a physician in China, dated February 2015. The Officer noted that thisdocument was a preliminary diagnosis of "“recurrent brief depression”", and the physician recommended that the Applicant rest and notoverwork.

The Respondent argues that the date and content of this document, together with the lack of evidence that the Applicant eversought further treatment in China or in Canada, allowed the Officer to reasonably conclude that the Applicant had failed to sufficientlyprove that she currently suffers from depression. [17] The Respondent also submits that the Nagasara decision does not assist the Applicant because in that case, the Court’s concernscentered around the officer’s sensitivity to mental health issues.

Instead, to engage sections 96 and 97 of the IRPA, the Respondentargues that an applicant would have to show that he or she would not be able to receive medical care due to a Convention ground or dueto specific targeting. [18] The Respondent submits that the Officer reasonably considered whether the Applicant could obtain treatment in China. TheOfficer found no evidence to suggest otherwise—in fact, the certificate of diagnosis submitted by the Applicant shows that she was ableto obtain medical assistance for her previous experience with depression.

For these reasons, the Respondent submits that it was open tothe Officer to conclude that the Applicant failed to show that she would not be able to access treatment in China. [19] In my view, the Officer reasonably considered the Applicant’s claim that returning to China would trigger her depression, andanalyzed whether the Applicant could obtain treatment in China. I am not persuaded by the Applicant’s argument that the Officerunduly focused on her current or past mental health, without considering the risk associated with a potential return to China.

The Officerfound little evidence to suggest that the Applicant would be denied treatment or care based on Convention grounds. The Officer alsonoted, and I agree, that subsection 97(1)(b)(iv) of the IRPA precludes findings of risk based on a country’s inadequate health or medicalcare. [20] Furthermore, the decision in Nagarasa does not assist the Applicant, as it can be distinguished on the facts. In Nagarasa, a keyissue concerned the PRRA officer’s treatment of the claimant’s depression and attempted suicide.

The officer had concluded that "“therisk of self-harm or suicide is speculative and controllable by the applicant’s own actions”", but the Court found this to be unreasonablebecause self-harm or suicide are "“not ‘controllable’ by a person who contemplates taking his or her own life”" (Nagarasa at paras 26-

28). By contrast, the Officer made no such findings in the case at bar. Instead, the Officer considered whether the Applicant couldobtain mental health treatment in China in the event that she required it, and reasonably found no evidence to suggest that she could not.

(2) Christianity [21] The Applicant argues that the Officer acknowledged her faith, but did not consider the prospective risk should she return to China asa Christian. Although the Applicant’s PRRA application does not explicitly claim a risk of persecution based on her Christian faith, sheclaims that she prepared her PRRA submissions while self-represented. In her view, this means the Officer had a heightenedresponsibility to analyze all of the information and risk factors in the Applicant’s application.

To support this argument, the Applicantcites this Court’s decision in Kovac v Canada (Citizenship and Immigration), 2015 FC 497 at para 6. [22] Given that the Officer accepted her Christian faith, the Applicant argues that her risk of persecution was "“evident”" and "“easilyestablished”" based on the documentary evidence. To support her claim of persecution, the Applicant cites several items of countrycondition evidence that report persecution of religious groups and, in particular, abusive practices directed at Christian communities inChina.

The Applicant submits that the Officer ignored the key question of whether she will be able to freely practice her religion uponreturn to China. In other words, the Officer failed to consider the harm that the Applicant would face due to her religion if she returnedto China. [23] The Respondent submits that the Officer did not need to address any risks that the Applicant may face as a Christian in Chinabecause her PRRA application did not allege that she faced any such risk. The onus was on the Applicant to set out her alleged risks andprovide an evidentiary basis establishing that she would be at risk.

In the Respondent’s view, although the Applicant provided evidenceto suggest that she began attending a church approximately three weeks before filing her PRRA materials, she tendered no submissionsto suggest that (1) she feared practicing Christianity in China; (2) she intended to continue practicing Christianity in China; (3) sheintended to continue attending church; or (4) she would be unable to practice her faith at a state-sponsored church in China. TheApplicant simply did not provide a basis for the Officer to consider that the Applicant would be persecuted in China.

She only stated thatshe had recently begun attending a church in Canada. [24] Although the Applicant claims that the country condition evidence alone should have been sufficient to establish her risk ofpersecution, the Respondent argues that country conditions must be linked to the applicant’s situation to establish a personal risk.

ThisCourt has noted that "“the fact that the documentary evidence shows that the human rights situation in a country can be problematic doesnot necessarily mean that there is a risk to a particular individual,”" (Li v Canada (Citizenship and Immigration), 2009 FC 1225 [Li] at paras 26-27; Ahmad v Canada (Minister of Citizenship and Immigration), 2004 FC 808 ; Rahim v Canada (Minister ofCitizenship and Immigration), 2005 FC 18 ).

In the Li decision, the applicant alleged risk given his practice of Falun Gong andChristianity, but the Court upheld the PRRA decision, notably because the applicant had not provided convincing evidence to establishthat he would face risk in China as a Christian. [25] Moreover, the Respondent notes that the country condition documents for China do not establish that all Christians are at risk. According to the UK Home Office, the treatment of Chinese Christians "“is unlikely to amount to persecution”". Therefore, theRespondent argues that the country condition documents alone are insufficient.

The onus was on the Applicant to adduce evidence ofthe alleged risks, and it was open to the Officer to find that she had not met this onus. [26] In my view, the Applicant failed to meet her obligation, as she did not provide a basis for the Officer to consider whether she wouldbe at risk as a Christian in China.

It was reasonable for the Officer to dismiss the PRRA application without addressing this risk. [27] It is well established that the onus falls on the applicants to advance their allegations of risk, and "“[i]f the evidence is insufficient,the applicant must bear the consequences”" (Lupsa v Canada (Citizenship and Immigration), 2007 FC 311 at paras 12-13;Perampalam v Canada (Citizenship and Immigration), 2018 FC 909 at para 17).

The Officer only had basic information thataddressed the Applicant’s recent conversion to Christianity. [28] I do note that it is incumbent on PRRA officers to "“consider risk grounds that are apparent on the record, even if these are notspecifically raised by the applicant,”" (Jama v Canada (Citizenship and Immigration), 2014 FC 668 [Jama] at para 19;Pastrana Viafara v Canada (Minister of Citizenship and Immigration), 2006 FC 1526 [Viafara] at paras 6-7).

The Officeracknowledged that the Applicant claims to have converted to Christianity, but as the Respondent argued, this claim does not create a riskground that is "“apparent on the record”". [29] To this end, there are evidentiary gaps that render the Christianity ground of risk sufficiently opaque. First, the Officer had noevidence to suggest that the Applicant feared practicing Christianity in China, or that she even intended to continue practicingChristianity in China.

Second, contrary to the Applicant’s arguments, the country condition evidence did not conclusively establish thatChristians in China face persecution. [30] In this sense, the present case can be distinguished from Jama and Viafara. In those cases, the applicants’ profiles fit an "“alarmingrisk ground”" reflected in the country condition evidence (Jama at para 24).

In Jama, the applicant was "“a young male returning to orthrough al-Shabaab held territory after living in the West for many years”", and in Viafara the applicant was "“the common-law spouseof […] a former military conscript”" in Colombia, a group frequently targeted by the Revolutionary Armed Forces of Colombia("“FARC”"). In both cases, the applicant’s profile aligned with a risk ground that was clearly apparent in the country conditionevidence.

Here, on the other hand, the persecution of Christians is not at all apparent in the country condition evidence. [31] Therefore, I find that the Officer did not err in not addressing the risk that the Applicant may face as a Christian in China. TheApplicant failed to state the allegations and evidentiary basis necessary to analyze whether such a risk exists.

(3) Alleged fear of loan sharks [32] The Applicant argues that the Officer erroneously assessed the documentary evidence on her alleged fear of loan sharks, and that

the Officer failed to analyze this claim under sections 96 or 97 of the IRPA. In particular, she notes that the analysis under subsection97(1) "“necessitates an individualized inquiry,”" (Prophète v Canada (Citizenship and Immigration), 2009 FCA 31 at para 7). The Applicant submits that the Officer failed to consider the Applicant’s heightened risk, which members of the general public in Chinado not face.

She argues that, if the Officer accepted that the Applicant genuinely faces threats from loan sharks, this serves to establishthat she fears persecution and faces a risk to her life. [33] In my view, the Applicant has mischaracterized the Officer’s findings. The Officer did indeed analyze the Applicant’s alleged fearof loan sharks under

section 97 of the IRPA. The Officer’s key finding was not on the existence of risk, but rather on state protection.

The Officer’s dominant conclusion reads as follows: Since I find adequate state protection is available to the applicant in China, I note that this finding is fatal to the applicant’sclaims under both sections 96 and 97 of the IRPA. [34] As the Officer notes, a finding of adequate state protection "“precludes refugee protection status”" (Lakatos v Canada (Citizenshipand Immigration), 2018 FC 367 at para 18; Canada (Citizenship and Immigration) v Foster, 2016 FC 130 at para 25;Canada (Citizenship and Immigration) v Neubauer, 2015 FC 260 at para 23). [35] Therefore, I find that the Officer’s reasons on this issue is reasonable.

B. State Protection [36] The Applicant submits that the Officer erred by failing to consider country condition evidence, by making a veiled credibilityfinding, and by failing to conduct an oral hearing. [37] The Applicant points to country condition evidence that, in her submission, shows state protection is not available for victims ofloan sharks. She emphasizes the following excerpt: There is limited information on police protecting, or not protecting, people from violence from money lenders.

Informallending is widespread in China, including in Fujian, and “on the whole, the government has turned a benevolent eye towardillicit finance.” [38] The Applicant also alleges that the Officer made a veiled credibility finding, and failed to afford her an opportunity to addressconcerns regarding state protection by way of an oral hearing. She submits that an oral hearing was required in this case by a combinedoperation of subsection 113(

b) of the IRPA and

section 167 of the Immigration and Refugee Protection Regulations, SOR/2002-227("“IRPR”"). [39] The Applicant argues that "“because no evidence was before the [Officer]”" on state protection, it was incumbent on the Officer toinitiate oral proceedings. She submits that the Officer erred in finding adequate state protection without fully canvassing or considering(

i) whether the Applicant could viably seek such protection in the first place, or (ii) whether there was evidence that China offered suchprotection to those in the Applicant’s position. [40] The Respondent argues that the Applicant failed to rebut the presumption of state protection. The Respondent states the generalpresumption that a state is able to protect its citizens (Canada (Attorney General) v Ward, (SCC), [1993] 2 SCR 689[Ward]).

The Respondent also submits that, most significantly for this case, it is well-established that the onus is on the Applicant toprovide clear and convincing evidence that the state would offer her inadequate protection when approached: Ward; Flores Carrillo vCanada (Minister of Citizenship and Immigration), 2008 FCA 94 at paras 18-19; Samuel v Canada (Citizenship andImmigration), 2008 FC 762 at para 10. [41] The Respondent argues that the Officer considered the country condition evidence concerning state protection from moneylenders,and concluded that China has an extensive police presence and that there was limited evidence on whether the police provided protectionto individuals who suffered from violence from moneylenders.

It is up to the Applicant to adduce additional "“clear and convincing”"evidence that the police would be unable or unwilling to assist her. [42] I agree with the Respondent that the Applicant has failed to rebut the presumption of state protection. The Applicant seems to havemisunderstood her obligation in the state protection analysis, especially when she claimed that the Officer erred by failing to assess"“whether there is evidence that China offers such protection to persons in the Applicant’s position”".

The presumption of stateprotection requires the Applicant, not the Officer, to produce this evidence. [43] Although the Applicant argued that the country condition documentation did not support the presence of adequate state protection, Ifind that the evidence she cites is inconclusive and vague. [44] I have difficulty deciphering the Applicant’s argument on the veiled credibility finding and the need for an oral hearing.

TheApplicant does not identify the veiled credibility finding, nor does she explain how the factors for an oral hearing, as prescribed insection 167 of the IRPR, are engaged in this case. [45] For the reasons above, the Officer’s findings on state protection are reasonable. C. The Presumption that the Applicant was Wanted by Chinese Authorities [46] In the decision, the Officer found that the Applicant had failed to demonstrate that she is, or was, wanted by police, military, orother authorities in China.

The Applicant argues that the Officer should not have considered whether the record contained evidence thatChinese authorities had issued any warrants or summons against her. The Applicant claims that she did not suggest that Chinese

authorities had issued a summons or warrant against her, so it is unclear why the Officer analyzed this question. The Applicant allegesthat this analysis is inappropriate, and that it tainted the Officer’s assessment of her risk; therefore it rendered the decision unreasonable. [47] The Respondent argues that no such error exists. In her PRRA application, the Applicant had marked that she was wanted by thepolice or military in China.

Given this claim in the application, the Officer’s analysis was entirely appropriate, and the Applicant cannotfault the Officer for addressing a claim she herself made in her application. [48] I agree with the Respondent. As the Officer notes, the Applicant completed her PRRA application by checking "“Yes”" to whethershe was wanted by state authorities, and she specified the state as China. However, immediately below that in the form, she includedother statements regarding Sri Lanka.

In my view, these references to Sri Lanka are clerical errors, as I see nothing in the recordregarding risk in Sri Lanka, let alone any travel history to Sri Lanka. Nevertheless, the Officer treated the remainder of the Applicant’sanswers as proper answers, concluding that the claim was not supported by the record. The Applicant cannot fault the Officer foranalyzing claims found in her own documentation. I find that the Officer’s analysis was reasonable. D.

Supporting Documents [49] The Applicant alleges that the Officer selectively ignored certain pieces of critical evidence that led directly to the alleged risks, andargues that this renders the Officer’s reasons unreasonable. In the Applicant’s view, the Officer’s approach is perverse and shows acomplete disregard for the evidence. [50] First, regarding her mental health, the Applicant argues that the Officer ignored her affidavit and the personal statements from herfamily.

Second, on state protection, the Applicant alleges that the Officer ignored her family’s personal statements where they indicatedthat state protection would not be available for the Applicant. Third, concerning her conversion to Christianity, the Applicant submitsthat the Officer analyzed the documentary evidence, but failed to analyze her risk of persecution if she returned to China as a Christian. [51] The Respondent argues that the Officer reasonably considered the Applicant’s affidavit and the letters from her family members.

The Respondent submits that it was open to the Officer to find this evidence insufficient to establish her mental health status, notablybecause the Applicant and her family are not medical professionals, so their opinions on her mental health carry minimal weight. Moreover, the statements from her family contain only brief comments about the Applicant’s previous experiences with depression andabout the possibility of a future likelihood of depression.

In the Respondent’s submission, the Officer reasonably assessed this evidenceas insufficient to demonstrate that the Applicant currently suffers from depression. [52] In my view, the Officer properly considered the evidence and supporting documentation.

It is well established that an officer ispresumed to have considered all of the evidence even if she does not refer to each individual piece of evidence in her reasons (Hassan vCanada (Minister of Employment and Immigration), [1992] FCJ No 946 (FCA); Ekpenyong v Canada (Immigration, Refugees andCitizenship), 2019 FC 1245 at para 20). [53] The Officer’s reasons show that these documents were considered, but deemed insufficient because they did not fill the evidentiarygaps identified in the Officer’s reasons.

For example, the documents did not suggest that the Applicant would be unable to receivemental health treatment in China. They also did not suggest that state protection is inadequate. [54] The Officer reasonably assessed the evidence, and found the supporting documentation insufficient to support the Applicant’sclaims. V. Certified Question [55] Counsel for each party was asked if there were any questions requiring certification. They each stated that there were no questionsfor certification and I concur. VI. Conclusion [56] For the foregoing reasons, the Officer’s decision is reasonable.

Accordingly, this application for judicial review is dismissed. JUDGMENT in IMM-2264-19 THIS COURT’S JUDGMENT is that: 1. The application for judicial review is dismissed. 2. There is no question to certify. "Shirzad A." Judge FEDERAL COURT

SOLICITORS OF RECORD DOCKET: IMM-2264-19 STYLE OF CAUSE: SHAOLING CAO v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: TORONTO, ONTARIO DATE OF HEARING: FEBRUARY 3, 2020 JUDGMENT AND REASONS: AHMED J. DATED: April 8, 2020 APPEARANCES : Subuhi Siddiqui For The Applicant Amy King For The Respondent SOLICITORS OF RECORD : Lewis & Associates Barristers & Solicitors Toronto, Ontario For The Applicant Attorney General of Canada Toronto, Ontario For The Respondent