Ching v. Canada (Minister of Citizenship and Immigration), 2015 FC 860

• Judge: Roy, J.
• Court: Federal Court (Canada)
• Case Date: June 23, 2015
• Jurisdiction: Canada (Federal)
• Citations: 2015 FC 860;[2015] F.T.R. TBEd. JL.039

Ching v. Can. (M.C.I.), [2015] F.T.R. TBEd. JL.039

MLB being edited

Currently being edited for F.T.R. - judgment temporarily in rough form.

Temp. Cite: [2015] F.T.R. TBEd. JL.039

Mo Yeung Ching (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-7849-14; 2015 FC 860)

Indexed As: Ching v. Canada (Minister of Citizenship and Immigration)

Federal Court

Roy, J.

July 15, 2015.

Summary:

Ching, a citizen of the People's Republic of China, claimed that he was in fear of false charges, imprisonment and torture in China. At issue was whether or not s. 98 of the Immigration and Refugee Protection Act applied, such that Ching could not claim to be a Convention refugee or a person in need of protection. The Refugee Protection Division (RPD) determined that there were "serious reasons for considering" that Ching had committed a serious non-political crime (United Nations Convention Relating to the Status of Refugees, art. 1F(b)). That determination was based on the reasons for judgment of Chinese courts in two cases involving charges of embezzlement against two Chinese nationals whom Ching had brought together in a real estate development deal. Ching was not on trial, but was referred to in the judgments as a co-conspirator. Ching applied for judicial review. The issue was whether or not the findings made by the RPD on the basis of the decisions of the Chinese courts satisfied the requirement of reasonableness.

The Federal Court allowed the application and remitted the matter to a different panel of the RPD for reconsideration.

Aliens - Topic 1330.3

Admission - Refugee protection, Convention refugees and persons in need of protection - Disqualifications - Serious non-political crime - The Refugee Protection Division (RPD) determined that there were "serious reasons for considering" that the applicant, a citizen of the People's Republic of China, had committed a serious non-political crime (United Nations Convention Relating to the Status of Refugees, art. 1F(b)) - That determination was based solely on the reasons for judgment of Chinese courts in cases involving charges of embezzlement against two Chinese nationals whom the applicant had brought together in a real estate development deal - The applicant was not on trial but was referred to in the judgments as a co-conspirator - The Federal Court allowed the application for judicial review - The quality of the evidence on which the RPD relied to reach its conclusion was "fuzzy and third-hand and, when considered carefully, does not implicate the applicant other than through bald statements made in foreign judgments. The task at hand for the RPD was to be satisfied that there are serious reasons for considering that a serious non-political crime had been committed outside of Canada. ... [T]he standard of proof is situated in Canada at the 'reasonable belief' on the spectrum between suspicions and balance of probabilities. The RDP does not appear to have satisfied itself that the evidence is beyond a mere suspicion." - See paragraphs 32 to 35.

Aliens - Topic 1330.3

Admission - Refugee protection, Convention refugees and persons in need of protection - Disqualifications - Serious non-political crime - The Refugee Protection Division (RPD) determined that there were "serious reasons for considering" that the applicant, a citizen of the People's Republic of China, had committed a serious non-political crime (United Nations Convention Relating to the Status of Refugees, art. 1F(b)) - That determination was based solely on the reasons for judgment of Chinese courts in cases involving charges of embezzlement against two Chinese nationals (Wang and a broker) whom the applicant had brought together in a real estate development deal - The applicant was not on trial but was referred to in the judgments as a co-conspirator - The RPD, as a justification for a conclusion against the applicant, relied heavily on the testimony of a Canadian non-expert witness who concluded that the evidence before the Chinese courts would be sufficient to convict - The Federal Court, in allowing the application for judicial review, stated that "[r]elying on the view of someone who is not in a better position than the Panel to make that determination does not add gravitas to the decision that is the exclusive province of the RPD." - See paragraphs 40 and 41.

Aliens - Topic 1330.3

Admission - Refugee protection, Convention refugees and persons in need of protection - Disqualifications - Serious non-political crime - At issue was whether or not s. 98 of the Immigration and Refugee Protection Act applied such that the applicant could not claim to be a Convention refugee or a person in need of protection - The Refugee Protection Division (RPD), relying on findings of foreign courts, determined that there were "serious reasons for considering" that the applicant had committed a serious non-political crime - The Federal Court, in allowing the judicial review application, stated that "[i]t is an important decision to declare, pursuant to section 98 of the IRPA, that someone cannot invoke the refugee protection regime under Canadian law. That being an exclusion clause from the application of the Refugee Convention, it should be applied with a measure of caution leading to a somewhat restrictive interpretation. Not anything could rise to the level of serious reasons for considering. In order to reach the appropriate level of persuasiveness, i.e. beyond mere suspicion but less than the balance of probabilities, one has to consider evidence and not merely accept some findings which, when examined carefully, are not clearly supported by evidence. In effect, the decision-making power is transferred completely to that foreign court of which the RPD accepts the findings and conclusions." - See paragraph 46.

Aliens - Topic 1330.3

Admission - Refugee protection, Convention refugees and persons in need of protection - Disqualifications - Serious non-political crime - The Refugee Protection Division (RPD), relying on findings of Chinese courts, determined that there were "serious reasons for considering" that the applicant had committed a serious non-political crime - The Federal Court, in allowing the judicial review application, stated that "the RPD accepts findings from a foreign court without identifying the indicia of reliability, especially in view of a process that is so obviously not adversarial. The qualities that make a decision reasonable ... are not present here. ... [I]t is not mandated that the foreign judicial process be adversarial. What is required is that there be reasons to accept the reliability of the findings made to rise to the level of serious reasons for considering. In reaching that conclusion, we must look to the qualities that will make the decision reasonable. The Court cannot find the justification, transparency and intelligibility within the Panel's decision-making process when it relies on findings that it is not possible to assess. The Panel relies on the foreign courts and it is not possible, given the paucity of information, to determine what was the justification, transparency and intelligibility of the foreign courts' decision-making process." - See paragraphs 49 and 50.

Aliens - Topic 1330.3

Admission - Refugee protection, Convention refugees and persons in need of protection - Disqualifications - Serious non-political crime - The Refugee Protection Division (RPD), relying on findings of Chinese courts, determined that there were "serious reasons for considering" that the applicant had committed a serious non-political crime - The applicant was not on trial in China - In the one-day trial, witness statements were presented to the China courts, with only one witness testifying viva voce - There were only brief summaries in the China courts' judgments - The RPD did not have the witness statements or the transcripts of the proceedings before the Chinese courts - The Federal Court, in allowing the judicial review application, discussed the standard of proof required of "serious reasons for considering" - In this case, on the spectrum between suspicions and balance of probabilities, the RPD articulated a standard "much closer to reasonable suspicions than reasonable belief ... [T]he issue is not whether or not the findings of a foreign court are to be discarded completely. They are not. However, I fail to see how serious reasons can come solely from the findings of another court without having a clear understanding of what the evidence against the applicant was. ... On judicial review, reasonableness requires more than accepting the findings made elsewhere without a clear rationale for such acceptance. That clear rationale was not present in this case. ... In effect, the RPD articulates a standard that never reaches the appropriate level, that of reasons to believe." - See paragraphs 52 to 60.

Aliens - Topic 1331

Admission - Refugee protection, Convention refugees and persons in need of protection - Evidence - [See first Aliens - Topic 1330.3 ].

Cases Noticed:

Notario v. Canada (Minister of Citizenship and Immigration), [2014] F.T.R. Uned. 461; 2014 FC 1159, refd to. [para. 31].

Feimi v. Canada (Minister of Citizenship and Immigration) (2012), 442 N.R. 374; 2012 FCA 325, refd to. [para. 31].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 31].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 33].

Lai v. Canada (Minister of Citizenship and Immigration) (2005), 332 N.R. 344; 2005 FCA 125, refd to. [para. 34].

Sing v. Canada (Minister of Citizenship and Immigration) - see Lai v. Canada (Minister of Citizenship and Immigration).

Alderman v. United States (1969), 394 U.S. 165, refd to. [para. 47].

Ezokola v. Canada (Minister of Citizenship and Immigration), [2013] 2 S.C.R. 678; 447 N.R. 254; 2013 SCC 40, refd to. [para. 54].

R. (ex rel. JS) (Sri Lanka) v. United Kingdom (Secretary of State for the Home Department), [2011] 1 A.C. 184; 402 N.R. 163; [2010] UKSC 15, refd to. [para. 54].

Chiau v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 297; 265 N.R. 121 (F.C.A.), refd to. [para. 54].

George v. Rockett (1990), 170 C.L.R. 104 (Aust. H.C.), refd to. [para. 55].

Canada (Minister of Citizenship and Immigration) v. XXXX (2010), 362 F.T.R. 178; 2010 FC 112, refd to. [para. 56].

Al-Sirri v. United Kingdom (Secretary of State for the Home Department), [2013] 1 All E.R. 1267; [2013] 1 A.C. 745; 438 N.R. 219; [2012] UKSC 54, refd to. [para. 57].

Poblete-Cardenas v. Minister of Employment and Immigration (1994), 74 F.T.R. 214; 23 Imm. L.R.(2d) 244 (T.D.), refd to. [para. 60].

Cardenas v. Canada (Minister of Employment and Immigration - see Poblete-Cardenas v. Minister of Employment and Immigration.

Danyluk v. Ainsworth Technologies Inc. et al., [2001] 2 S.C.R. 460; 272 N.R. 1; 149 O.A.C. 1; 2001 SCC 44, refd to. [para. 61].

Workers' Compensation Board (B.C.) v. Human Rights Tribunal (B.C.) et al., [2011] 3 S.C.R. 422; 421 N.R. 338; 311 B.C.A.C. 1; 529 W.A.C. 1; 2011 SCC 52, refd to. [para. 61].

Zhang v. Canada (Minister of Citizenship and Immigration) (2013), 446 N.R. 382; 2013 FCA 168, refd to. [para. 63].

Lukács v. Canadian Transportation Agency (2015), 473 N.R. 263; 2015 FCA 140, refd to. [para. 65].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 98 [para. 2].

United Nations Convention Relating to the Status of Refugees, art. 1F(b) [para. 3].

Counsel:

David Matas, for the applicant;

Nalini Reddy, for the respondent.

Solicitors of Record:

David Matas, Winnipeg, Manitoba, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Winnipeg, Manitoba, for the respondent.

This application for judicial review was heard at Winnipeg, Manitoba, on June 23, 2015, before Roy, J., of the Federal Court, who delivered the following judgment and reasons, dated July 15, 2015, at Ottawa, Ontario.