Li v. Canada (Minister of Citizenship and Immigration), [2015] F.T.R. TBEd. AU.012

• Judge: Russell, J.
• Court: Federal Court (Canada)
• Case Date: April 29, 2015
• Jurisdiction: Canada (Federal)
• Citations: [2015] F.T.R. TBEd. AU.012;2015 FC 927

Li v. Can. (M.C.I.), [2015] F.T.R. TBEd. AU.012

MLB being edited

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

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

Temp. Cite: [2015] F.T.R. TBEd. AU.012

Fan Li (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-1304-14; 2015 FC 927; 2015 CF 927)

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

Federal Court

Russell, J.

July 28, 2015.

Summary:

Li was a Chinese citizen who was granted refugee protection in 2004, based on his fear of persecution as a Falun Gong participant. In 2014, the Refugee Protection Division of the Immigration and Refugee Board found that Li had ceased to be a refugee because he had reavailed himself of China's protection. Reavailment was established by Li's renewing his Chinese passport twice since 2004 and Li's travels to China, often for long periods. Li applied for judicial review.

The Federal Court dismissed the application.

Administrative Law - Topic 2484

Natural justice - Procedure - At hearing - Adjournments - Li was a Chinese citizen who was granted refugee protection in 2004, based on his fear of persecution as a Falun Gong participant - In 2014, the Refugee Protection Division (RPD) of the Immigration and Refugee Board found that Li had ceased to be a refugee because he had reavailed himself of China's protection - Reavailment was established by Li's renewing his Chinese passport twice since 2004 and Li's travels to China, often for long periods - Li applied for judicial review, asserting that he was denied a fair hearing because he did not have legal counsel before the RPD and that the RPD breached procedural fairness by failing to adjourn the hearing to permit Li to consult counsel - The Federal Court dismissed the application - A hearing was fair as long as the applicant understood the proceeding's nature and was prepared to represent himself or herself - The decision's consequences and the matter's complexity impacted the determination of whether a hearing was fair - The transcript of the hearing revealed no evidence of confusion, misunderstanding or unfairness apparent on the face of the record - Li received a fair hearing - He was prepared and understood the issues and the principles to be applied - There was no real complexity and no new issues arose - It was open to the RPD to decide that Li's trips constituted reavailment - That Li disagreed with the outcome did not mean that the hearing was unfair - It was noteworthy that Li had not sought an adjournment - The suggestion came from the Minister - See paragraphs 30 to 47.

Administrative Law - Topic 3345

Judicial review - General - Practice - Affidavit evidence - Li was a Chinese citizen who was granted refugee protection in 2004, based on his fear of persecution as a Falun Gong participant - In 2014, the Refugee Protection Division of the Immigration and Refugee Board found that Li had ceased to be a refugee because he had reavailed himself of China's protection - Li applied for judicial review, asserting breaches of procedural fairness - At issue was the effect of Li's failure to provide a personal affidavit with his application - The Federal Court observed that judicial review applications were not dismissed outright due to the absence of a personal affidavit from the applicant - The jurisprudence revealed several examples where a court had granted judicial review despite the lack of a personal affidavit from the applicant - In those cases, the court limited its review to errors that appeared on the face of the record - In light of that, here, the court examined the transcript of the hearing - See paragraphs 20 to 29.

Administrative Law - Topic 2492

Natural justice - Procedure - At hearing - Right to representation (incl. counsel) - [See Administrative Law - Topic 2484 ].

Aliens - Topic 15

Definitions and general principles - Right to counsel - [See Administrative Law - Topic 2484 ].

Aliens - Topic 1313.6

Admission - Refugee protection, Convention refugees and persons in need of protection - Refugee protection - Rejection of claims where refugee protection ceased (IRPA, s. 108) - [See Administrative Law - Topic 2484 ].

Aliens - Topic 1329.3

Admission - Refugee protection, Convention refugees and persons in need of protection - Right to a fair hearing - [See Administrative Law - Topic 2484 ].

Aliens - Topic 1330

Admission - Refugee protection, Convention refugees and persons in need of protection - Right to counsel or representation - [See Administrative Law - Topic 2484 ].

Aliens - Topic 1331

Admission - Refugee protection, Convention refugees and persons in need of protection - Evidence - [See Administrative Law - Topic 3345 ].

Aliens - Topic 1334

Admission - Refugee Protection, Convention refugees and persons in need of protection - Appeals or judicial review - Scope of review - Li was a Chinese citizen who was granted refugee protection in 2004, based on his fear of persecution as a Falun Gong participant - In 2014, the Refugee Protection Division (RPD) of the Immigration and Refugee Board found that Li had ceased to be a refugee because he had reavailed himself of China's protection - Reavailment was established by Li's renewing his Chinese passport twice since 2004 and Li's travels to China, often for long periods - Li applied for judicial review, asserting that he was denied a fair hearing because he did not have legal counsel before the RPD and that the RPD breached procedural fairness by failing to adjourn the hearing to permit Li to consult counsel - At issue was the standard of review - The Federal Court stated, "[Li] submits that the issue is reviewable on a standard of correctness.... However, the issue before the Court is not particularly amenable to a correctness review. The Court is simply called upon to determine whether or not the Applicant received a fair hearing" - See paragraphs 13 and 14.

Aliens - Topic 4062

Practice - Judicial review and appeals - Power of review of appellate court - Standard of review - [See Aliens - Topic 1334 ].

Aliens - Topic 4084

Practice - Hearing - Adjournments or postponements - [See Administrative Law - Topic 2484 ].

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 13].

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al. (2013), 446 N.R. 65; 2013 SCC 36, refd to. [para. 13].

Costeniuc v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 747; 2012 FC 1495, refd to. [para. 14].

Mervilus v. Canada (Minister of Citizenship and Immigration) (2004), 262 F.T.R. 186; 2004 FC 1206, refd to. [para. 14].

Nemeth v. Canada (Minister of Citizenship and Immigration) (2003), 233 F.T.R. 301; 2003 FCT 590, refd to. [para. 14].

Ha v. Canada (Minister of Citizenship and Immigration), [2004] 3 F.C.R. 195; 316 N.R. 299; 2004 FCA 49, refd to. [para. 14].

Siloch v. Minister of Employment and Immigration (1993), 151 N.R. 76 (F.C.A.), refd to. [para. 16].

Cardinal and Oswald v. Kent Institution (Director), [1985] 2 S.C.R. 643; 63 N.R. 353, refd to. [para. 16].

Austria v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 278; 2006 FC 423, refd to. [para. 16].

Bulut v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 948; 2005 FC 1627, refd to. [para. 17].

Yusuf v. Minister of Employment and Immigration, [1992] 1 F.C. 629 (C.A.), refd to. [para. 17].

Kumar v. Minister of Employment and Immigration, [1988] 2 F.C. 14; 81 N.R. 157 (F.C.A.), refd to. [para. 17].

Quiroa et al. v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 190; 2005 FC 271, refd to. [para. 17].

Wang (L.) v. Minister of Employment and Immigration, [1991] 2 F.C. 165; 121 N.R. 243 (F.C.A.), refd to. [para. 25].

Moldevenau v. Canada (Minister of Citizenship and Immigration) (1999), 235 N.R. 192 (F.C.A.), refd to. [para. 26].

Nelson v. Commissioner of Corrections (Can.) et al. (1996), 206 N.R. 180 (F.C.A.), refd to. [para. 26].

Turcinovica v. Canada (Minister of Citizenship and Immigration) (2002), 216 F.T.R. 305; 2002 FCT 164, refd to. [para. 27].

Zheng v. Canada (Minister of Citizenship and Immigration), [2002] F.T.R. Uned. 776; 2002 FCT 1152, refd to. [para. 27].

Koky v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 980; 2011 FC 1407, refd to. [para. 28].

Patel v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 146; 2006 FC 224, refd to. [para. 28].

Sarmis v. Canada (Minister of Citizenship and Immigration) (2004), 245 F.T.R. 312; 2004 FC 110, refd to. [para. 28].

Ly (Q.H.) v. Canada (Minister of Citizenship and Immigration), [2003] F.T.R. Uned. 706; 2003 FC 1184, refd to. [para. 28].

Navaratnam et al. v. Canada (Minister of Citizenship and Immigration), [2015] F.T.R. Uned. 100; 2015 FC 274, refd to [para. 30].

Conseillant v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 264; 2007 FC 49, refd to. [para. 34].

Counsel:

Robert Israel Blanshay, for the applicant;

Leanne Briscoe, for the respondent.

Solicitors of Record:

Robert Israel Blanshay Professional Corporation, 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 29, 2015, by Russell, J., of the Federal Court, who delivered the following reasons for judgment at Ottawa, Ontario, on July 28, 2015.