Lai v. Canada (Minister of Citizenship and Immigration), (2015) 481 F.T.R. 158 (FC)

• Judge: Strickland, J.
• Court: Federal Court (Canada)
• Case Date: April 08, 2015
• Jurisdiction: Canada (Federal)
• Citations: (2015), 481 F.T.R. 158 (FC);2015 FC 646

Lai v. Can. (M.C.I.) (2015), 481 F.T.R. 158 (FC)

MLB headnote and full text

Temp. Cite: [2015] F.T.R. TBEd. MY.068

Chaohong Lai (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-7242-13)

Chaohong Lai (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-7243-13; 2015 FC 646)

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

Federal Court

Strickland, J.

May 19, 2015.

Summary:

A Senior Immigration Officer, Citizenship and Immigration Canada, refused the applicant's Pre-Removal Risk Assessment (PRRA). The same Officer denied the applicant's application for permanent residence, based on humanitarian and compassionate (H&C) grounds under s. 24(1) of the Immigration and Refugee Protection Act. The applicant, who had been removed from Canada to China, sought judicial review of both decisions.

The Federal Court held that the application regarding the PRRA decision was moot and declined to hear it. The court allowed the application regarding the H&C application.

Aliens - Topic 1206

Admission - Immigrants - General - Upon compassionate or humanitarian grounds - A Senior Immigration Officer, Citizenship and Immigration Canada, refused the applicant's Pre-Removal Risk Assessment (PRRA) - The same Officer denied the applicant's application for permanent residence, based on humanitarian and compassionate (H&C) grounds - The Officer concluded, inter alia, that the applicant had provided insufficient evidence to demonstrate that she had a well-founded fear that her husband (Peng) would follow her to China in order to harm her - Further, she had a viable avenue of recourse through the police - Accordingly, she had failed to establish that there was a serious possibility that she would be at risk of harm by Peng in China and would therefore suffer unusual and undeserved or disproportionate hardship - The applicant was removed from Canada to China - She sought judicial review of both decisions - The Federal Court allowed the application regarding the H&C application - The Officer's treatment of the Expert Report was not reasonable - The expert was highly qualified - Her Report indicated that she considered the applicant's situation to be very high risk, including a risk of lethal abuse at Peng's hands - The Officer simply did not engage with the content of the Expert Report or the question of the availability of state protection in the context of domestic violence - The Officer also failed to address other relevant evidence - Accordingly, her finding was unreasonable - See paragraphs 25 to 66.

Aliens - Topic 1239

Admission - Immigrants - Application for admission - Reasons for decision - [See Aliens - Topic 1206 ].

Aliens - Topic 1239

Admission - Immigrants - Application for admission - Reasons for decision - A Senior Immigration Officer, Citizenship and Immigration Canada, refused the applicant's Pre-Removal Risk Assessment (PRRA) - The same Officer denied the applicant's application for permanent residence, based on humanitarian and compassionate (H&C) grounds - The Officer concluded, inter alia, that the applicant had provided insufficient evidence to demonstrate that she had a well-founded fear that her husband (Peng) would follow her to China in order to harm her - Further, she had a viable avenue of recourse through the police - Accordingly, she had failed to establish that there was a serious possibility that she would be at risk of harm by Peng in China and would therefore suffer unusual and undeserved or disproportionate hardship - The applicant was removed from Canada to China - She sought judicial review of both decisions - The Federal Court allowed the application regarding the H&C application where the Expert Report was not considered by the Officer when she addressed the domestic violence issue - The court noted that "... in response to the H&C application ... the Officer, filed an affidavit dated January 7, 2014. In it she states that it is her usual practice, when assigned both a PRRA and an H&C application from the same party, to review the evidence from both applications collectively before making either decision, and then to mention the evidence in the decision(s) to which it was relevant. She then states that she followed that practice in making the PRRA decision. The Officer then goes further and states that she found the Expert Report not to be relevant to the PRRA, as it did not provide evidence that would assist in establishing that the Applicant faces a risk in China and, therefore, did not mention it in the decision. In my view, it is not open to the Officer to provide reasons for her decision after the fact, this amounts to an effort to 'remedy a defect in the decision by filing further and better reasons in the form of an affidavit'" - See paragraphs 55 to 57.

Aliens - Topic 1304

Admission - Immigrants - Judicial review - Scope or standard of - [See Aliens - Topic 1206 ].

Aliens - Topic 1305

Admission - Immigrants - Judicial review - Evidence - [See second Aliens - Topic 1239 ].

Aliens - Topic 1323.2

Admission - Refugee protection, Convention refugees and persons in need of protection - Persecution - Protection of country of nationality or citizenship (internal flight alternative) - [See Aliens - Topic 1206 ].

Aliens - Topic 1581

Exclusion and expulsion - Pre-removal risk assessment (Immigration and Refugee Protection Act (IRPA), ss. 112-116) - General - [See Courts - Topic 2286 ].

Aliens - Topic 1594

Exclusion and expulsion - Pre-removal risk assessment (Immigration and Refugee Protection Act, ss. 112-116) - Judicial review (incl. standard of review) - [See second Aliens - Topic 1239 ].

Aliens - Topic 1594

Exclusion and expulsion - Pre-removal risk assessment (Immigration and Refugee Protection Act, ss. 112-116) - Judicial review (incl. standard of review) - [See Courts - Topic 2286 ].

Courts - Topic 2286

Jurisdiction - Bars - Academic matters or moot issues - A Senior Immigration Officer, Citizenship and Immigration Canada, refused the applicant's Pre-Removal Risk Assessment (PRRA) - The same Officer denied the applicant's application for permanent residence, based on humanitarian and compassionate (H&C) grounds - The applicant, who had been removed from Canada to China, sought judicial review of both decisions - The Federal Court held that the application regarding the PRRA decision was moot - Although the applicant had ably presented her case, the situation did not warrant the court exercising its discretion to hear the PRRA application - While an adversarial context still existed between the parties, this did not outweigh the other two issues set out in Borowski v. Canada (Attorney General) (1989 S.C.C.), namely the conservation of judicial resources and the importance of not departing from the court's role as the adjudicative branch - A further consideration was that the court could not grant a practical remedy here - While it could set aside the Officer's decision, it could not order that a new PRRA be undertaken - The purpose of a PRRA was to assess the risks before the removal, not after - See paragraphs 7 to 24.

Cases Noticed:

Figurado v. Canada (Solicitor General) (2005), 262 F.T.R. 219; 2005 FC 347, refd to. [para. 7].

Solis Perez v. Canada (Minister of Citizenship and Immigration) - see Perez v. Canada (Minister of Citizenship and Immigration).

Perez v. Canada (Minister of Citizenship and Immigration) (2008), 328 F.T.R. 290; 2008 FC 663, appld. [para. 7].

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; 92 N.R. 110; 75 Sask.R. 82, appld. [para. 8].

Alfred v. Canada (Minister of Citizenship and Immigration) (2005), 279 F.T.R. 7; 2005 FC 1134, refd to. [para. 9].

Johnson v. Canada (Minister of Citizenship and Immigration) et al., [2010] F.T.R. Uned. 191; 2010 FC 311, refd to. [para. 9].

Sogi v. Canada (Minister of Citizenship and Immigration) et al., [2007] F.T.R. Uned. 834; 2007 FC 108, refd to. [para. 10].

Mekuria v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 196; 2010 FC 304, refd to. [para. 10].

Villalobo v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 489; 2009 FC 773, refd to. [para. 10].

Shpati v. Canada (Minister of Public Safety and Emergency Preparedness) (2011), 423 N.R. 309; 2011 FCA 286, refd to. [para. 10].

Avdonina v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 555; 2012 FC 1109, refd to. [para. 11].

Lakatos v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 650; 2010 FC 971, refd to. [para. 11].

Sanchez et al. v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 560; 2010 FC 846, refd to. [para. 11].

Ren v. Canada (Minister of Public Safety and Emergency Preparedness), [2012] F.T.R. Uned. 783; 2012 FC 1345, refd to. [para. 13].

R. v. Adams (J.R.), [1995] 4 S.C.R. 707; 190 N.R. 161; 178 A.R. 161; 110 W.A.C. 161, refd to. [para. 13].

Chinchilla et al. v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 332; 2005 FC 534, refd to. [para. 13].

Varga v. Canada (Minister of Citizenship and Immigration) (2005), 275 F.T.R. 286; 2005 FC 617, refd to. [para. 13].

Farias v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 411; 2008 FC 578, refd to. [para. 13].

Escobar Rosa v. Canada (Minister of Citizenship and Immigration) (2015), 471 F.T.R. 214; 2014 FC 1234, refd to. [para. 20].

Sosi v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 947; 2008 FC 1300, refd to. [para. 23].

Giron v. Canada (Minister of Citizenship and Immigration) (2013), 426 F.T.R. 196; 2013 FC 114, refd to. [para. 23].

Florea v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 598 (C.A.), refd to. [para. 52].

Cepeda-Gutierrez et al. v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 (T.D.), refd to. [para. 53].

Packinathan v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 547; 2010 FC 834, refd to. [para. 53].

Abusaninah v. Canada (Minister of Citizenship and Immigration) (2015), 476 F.T.R. 151; 2015 FC 234, refd to. [para. 57].

Sellathurai v. Canada (Minister of Public Safety and Emergency Preparedness) (2008), 382 N.R. 2; 2008 FCA 255, refd to. [para. 57].

Kaba v. Canada (Minister of Citizenship and Immigration) (2013), 443 F.T.R. 291; 2013 FC 1201, refd to. [para. 57].

Dinani v. Canada (Minister of Citizenship and Immigration) (2014), 448 F.T.R. 62; 2014 FC 141, refd to. [para. 57].

Counsel:

Rathika Vasavithadan, for the applicant;

Bradley Bechard, for the respondent.

Solicitors of Record:

Barbra Schlifer Commemorative Clinic, Toronto, Ontario, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Toronto, Ontario, for the respondent.

This application was heard at Toronto, Ontario, on April 8, 2015, by Strickland, J., of the Federal Court, who delivered the following decision at Ottawa, Ontario, on May 19, 2015.