Wang et al. v. Canada (Minister of Public Safety and Emergency Preparedness), (2015) 474 F.T.R. 90 (FC)

• Judge: Phelan, J.
• Court: Federal Court (Canada)
• Case Date: January 19, 2015
• Jurisdiction: Canada (Federal)
• Citations: (2015), 474 F.T.R. 90 (FC);2015 FC 79

Wang v. Can. (2015), 474 F.T.R. 90 (FC)

MLB headnote and full text

Temp. Cite: [2015] F.T.R. TBEd. FE.025

Zhenhua Wang and Chunxiang Yan (applicants) v. The Minister of Public Safety and Emergency Preparedness (respondent)

(IMM-8294-14; 2015 FC 79)

Indexed As: Wang et al. v. Canada (Minister of Public Safety and Emergency Preparedness)

Federal Court

Phelan, J.

January 21, 2015.

Summary:

The applicants were citizens of China and the Dominican Republic. They entered Canada under temporary resident visas, intending to seek permanent residence through the provincial nominee program. The Canada Border Services Agency received information that the female applicant had multiple identities and the male applicant was a fugitive from justice in China where he had allegedly defrauded approximately 60,000 people of the equivalent of $180 million. In March 2014, the applicants were placed in detention. In June 2014, the applicants claimed refugee protection. The removal orders became conditional departure orders due to the refugee claims. In December 2014, a member of the Immigration Division of the Immigration and Refugee Board ordered the applicants' continued detention. The applicants sought judicial review.

The Federal Court allowed the application. The matter was remitted to a different member for redetermination.

Aliens - Topic 1795

Exclusion and expulsion - Deportation and exclusion of persons in Canada - Detention (incl. review or release) (incl. IRPA, ss. 54-61) - The applicants were citizens of China and the Dominican Republic - They entered Canada under temporary resident visas, intending to seek permanent residence through the provincial nominee program - The Canada Border Services Agency received information that the female applicant had multiple identities and the male applicant was a fugitive from justice in China where he had allegedly defrauded approximately 60,000 people of the equivalent of $180 million - In March 2014, the applicants were placed in detention - In June 2014, the applicants claimed refugee protection - The removal orders became conditional departure orders due to the refugee claims - In December 2014, a member of the Immigration Division of the Immigration and Refugee Board ordered the applicants' continued detention - On judicial review, the applicants challenged the member's refusal to consider the likelihood that they would appear at the refugee hearing - The Federal Court allowed the application - In the assessment of flight risk, the member should have focussed on all immigration proceedings that were relevant to the analysis - It was an error to dismiss the refugee claim as irrelevant, particularly here - The refugee claim's existence had to be given some positive weight - The member's legal analysis was incomplete - See paragraphs 17 to 24.

Aliens - Topic 1795

Exclusion and expulsion - Deportation and exclusion of persons in Canada - Detention (incl. review or release) (incl. IRPA, ss. 54-61) - The applicants were citizens of China and the Dominican Republic - They entered Canada under temporary resident visas, intending to seek permanent residence through the provincial nominee program - The Canada Border Services Agency received information that the female applicant had multiple identities and the male applicant was a fugitive from justice in China where he had allegedly defrauded approximately 60,000 people of the equivalent of $180 million - In March 2014, the applicants were placed in detention - In June 2014, the applicants claimed refugee protection - The removal orders became conditional departure orders due to the refugee claims - In December 2014, a member of the Immigration Division of the Immigration and Refugee Board ordered the applicants' continued detention - On judicial review, the applicants challenged the member's rejection of their release plan - The Federal Court allowed the application - First, the member's comments exhibited a misunderstanding of the bondsman's role which carried over to the rejection of the technological aspects of the release plan - Further, the member failed to adequately consider the release plan, made unsupported assumptions and failed to understand the overall plan and its operation under which electronic monitoring was supplemented by on-site officers and video surveillance - The member's assessment of the release plan was not reasonable - See paragraphs 25 to 33.

Aliens - Topic 1856

Exclusion and expulsion - Immigration and Refugee Board (incl. Immigration Division and Immigration Appeal Division) - Evidence and proof - [See first Aliens - Topic 1795 ].

Aliens - Topic 1856

Exclusion and expulsion - Immigration and Refugee Board (incl. Immigration Division and Immigration Appeal Division) - Evidence and proof - The applicants were citizens of China and the Dominican Republic - They entered Canada under temporary resident visas, intending to seek permanent residence through the provincial nominee program - The Canada Border Services Agency received information that the female applicant had multiple identities and the male applicant was a fugitive from justice in China where he had allegedly defrauded approximately 60,000 people of the equivalent of $180 million - In March 2014, the applicants were placed in detention - In June 2014, the applicants claimed refugee protection - The removal orders became conditional departure orders due to the refugee claims - In December 2014, a member of the Immigration Division of the Immigration and Refugee Board ordered the applicants' continued detention - On judicial review, the applicants challenged the member's rejection of their expert's evidence - The member refused to qualify the expert or accept his opinion because he "took the partisan position that he had not been retained by the Minister and was not obligated to carry out research" on the Minister's behalf and because his evidence was inconsistent with documentary evidence adduced by the applicants' previous counsel - The Federal Court held that the member's conclusion regarding the expert's evidence was unreasonable - See paragraphs 34 to 40.

Evidence - Topic 7000.2

Opinion evidence - Expert evidence - General - Expert witness - Disqualification - Bias - [See second Aliens - Topic 1856 ].

Evidence - Topic 7002

Opinion evidence - Expert evidence - General - Acceptance, rejection and weight to be given to expert opinion - [See second Aliens - Topic 1856 ].

Cases Noticed:

Canada (Minister of Citizenship and Immigration) v. B157, [2010] 3 F.C.R. 575; 379 F.T.R. 251; 2010 FC 1314, refd to. [para. 18].

Tursunbayev v. Canada (Minister of Public Safety and Emergency Preparedness) (2012), 409 F.T.R. 176; 2012 FC 504, refd to. [para. 28].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 35].

Counsel:

Lorne Waldman, for the applicants;

Brad Gotkin and Meva Motwani, for the respondent.

Solicitors of Record:

Waldman & Associates, Toronto, Ontario, for the applicants;

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

This application was heard at Toronto, Ontario, on January 19, 2015, by Phelan, J., of the Federal Court, who delivered the following reasons for judgment on January 21, 2015.