Shi v. Canada (Minister of Citizenship and Immigration), (2012) 417 F.T.R. 298 (FC)

• Judge: Mosley, J.
• Court: Federal Court (Canada)
• Case Date: July 19, 2012
• Jurisdiction: Canada (Federal)
• Citations: (2012), 417 F.T.R. 298 (FC);2012 FC 1059

Shi v. Can. (M.C.I.) (2012), 417 F.T.R. 298 (FC)

MLB headnote and full text

[French language version follows English language version]

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

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Temp. Cite: [2012] F.T.R. TBEd. SE.014

Su Feng Shi (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-8195-11; 2012 FC 1059; 2012 CF 1059)

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

Federal Court

Mosley, J.

September 7, 2012.

Summary:

Shi, a citizen of China, was granted refugee status on the ground of religious persecution, and became a permanent resident. He was found to be inadmissible to Canada by reason of serious criminality. A Minister's delegate determined that the violent and repetitive nature of Shi's offences and poor prospects for rehabilitation meant that his presence constituted a danger to the Canadian public. Shi applied for judicial review, contending that he was denied procedural fairness, and that the risk assessment was unreasonable.

The Federal Court dismissed the application.

Administrative Law - Topic 2402

Natural justice - Procedure - General - Duty of fairness - [See first Aliens - Topic 1590 ].

Aliens - Topic 15

Definitions and general principles - Right to counsel - [See first Aliens - Topic 1594 ].

Aliens - Topic 1590

Exclusion and expulsion - Pre-removal risk assessment (Immigration and Refugee Protection Act, ss. 112 - 116) - Duty of fairness - The primary issue in this immigration case was whether procedural fairness required that counsel previously on record for an individual who was the subject of a request for a danger opinion be served with disclosure documents, in addition to the individual concerned - The Federal Court held that "[w[here counsel is known such disclosure is required. In the particular circumstances of this case, I find that the respondent can not be faulted for failing to provide the documents where they were not informed that the individual had counsel." - See paragraph 1.

Aliens - Topic 1590

Exclusion and expulsion - Pre-removal risk assessment (Immigration and Refugee Protection Act, ss. 112 - 116) - Duty of fairness - [See first Aliens - Topic 1594 ].

Aliens - Topic 1594

Exclusion and expulsion - Pre-removal risk assessment (Immigration and Refugee Protection Act, ss. 112 - 116) - Judicial review (incl. standard of review) - A Minister's delegate determined that the applicant's presence constituted a danger to the Canadian public - On judicial review, the applicant submitted that he was denied procedural fairness from the failure of the Minister to serve documents on his counsel - As a result, the applicant contended, he was denied an opportunity to respond, and that the outcome could have been different had proper submissions been made - The Federal Court held that the duty of fairness in this case was satisfied by disclosure of the materials directly to the applicant - The respondent could not be faulted for the applicant's failure to take any action in his own interest when served with the document packages despite having been on notice that he was subject to removal - Had the court reached a different conclusion, this was not a case in which it would have applied the principle of inevitable outcome - The decision under review was fact based, and did not turn on a question of law for which there was only one correct answer - See paragraphs 20 to 30.

Aliens - Topic 1594

Exclusion and expulsion - Pre-removal risk assessment (Immigration and Refugee Protection Act, ss. 112 - 116) - Judicial review (incl. standard of review) - The applicant was granted refugee protection on the strength of his claim that he was a follower of Tian Dao religious beliefs in China - He was found to be inadmissible by reason of serious criminality - A Minister's delegate determined that the applicant constituted a danger to the Canadian public - On judicial review, the applicant submitted that the delegate's risk assessment was unreasonable - The Federal Court held that the Minister's delegate reasonably concluded that since the applicant was no longer a Tian Dao follower and that a significant amount of time had passed since he was granted status, the applicant did not demonstrate he would face persecution in China for that reason - Nor did the applicant establish that he would face risk by reason of a sur place conversion to Christianity - The applicant was a long-time gang member with little or no regard for the safety of others or Canadian law - See paragraphs 31 to 34.

Aliens - Topic 1645

Exclusion and expulsion - Immigration - Deportation - Grounds for - Danger to the public - [See second Aliens - Topic 1594 ].

Cases Noticed :

Sketchley v. Canada (Attorney General) (2006), 344 N.R. 257; 2005 FCA 404, refd to. [para. 17].

Khosa v. Canada (Minister of Citizenship and Immigration) (2009), 385 N.R. 206; 2009 SCC 12, refd to. [para. 17].

Pusat v. Canada (Minister of Citizenship and Immigration) (2011), 388 F.T.R. 49; 2011 FC 428, refd to. [para. 17].

La v. Canada (Minister of Citizenship and Immigration) (2003), 232 F.T.R. 220; 2003 FCT 476, refd to. [para. 18].

Randhawa v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 186; 2009 FC 310, refd to. [para. 18].

Suresh v. Canada (Minister of Citizenship and Immigration) (2002), 281 N.R. 1; 2002 SCC 1, refd to. [para. 18].

Bhagwandass v. Canada (Minister of Citizenship and Immigration) (2001), 268 N.R. 337; 2001 FCA 49, refd to. [para. 20].

Chernikov v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 539; 2011 FC 885, refd to. [para. 22].

Ashour v. Canada (Minister of Citizenship and Immigration) (1998), 147 F.T.R. 207 (T.D.), refd to. [para. 22].

Mohammadian v. Canada (Minister of Citizenship and Immigration) (2001), 271 N.R. 91; 2001 FCA 191, refd to. [para. 28].

Singh (Resham) v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 779; 2010 FC 1161, refd to. [para. 28].

Mowloughi v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 385; 2012 FC 662, refd to. [para. 28].

Mobil Oil Canada Ltd. et al. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202; 163 N.R. 27; 115 Nfld. & P.E.I.R. 334; 360 A.P.R. 334, refd to. [para. 30].

Jama v. Canada (Minister of Public Safety and Emergency Preparedness) et al., [2009] F.T.R. Uned. 600; 2009 FC 781, refd to. [para. 32].

Hasan v. Canada (Minister of Citizenship and Immigration) (2008), 339 F.T.R. 21; 2008 FC 1069, refd to. [para. 32].

Camara v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 86; 2006 FC 168, refd to. [para. 32].

Counsel:

Asiya Hirji, for the applicant;

Ildiko Erdei, for the respondent.

Solicitors of Record:

Mamann, Sandaluk & Kingwell LLP, Toronto, Ontario, for the applicant;

Myles J. Kirvan, Deputy Attorney General of Canada, Toronto, Ontario, for the respondent.

This application was heard at Toronto, Ontario, on July 19, 2012, before Mosley, J., of the Federal Court, who delivered the following reasons for judgment and judgment, dated September 7, 2012.