Docket: IMM-1614-14
Citation:
2015 FC 459
Ottawa, Ontario, April 15, 2015
PRESENT: The
Honourable Mr. Justice O'Reilly
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BETWEEN:
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PETER SUM LI
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Applicant
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and
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MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
Mr Peter Sum Li, a citizen of the People’s
Republic of China, achieved refugee status in Canada in 1990. Two years later,
he became a permanent resident. In 2013, the Minister of Public Safety applied
to the Immigration and Refugee Board to cease the refugee protection provided
to Mr Li. The Board granted the Minister’s application and nullified Mr Li’s
refugee status.
[2]
The Minister’s application was based on the fact
that Mr Li obtained Chinese passports after he had acquired permanent resident
status in Canada. In addition, Mr Li has made frequent trips to China over the
years. He met and married his wife in China, and the couple carried on business
there through Mr Li’s Canadian company. Mr Li actually resided primarily in
China for significant periods of time during 2000 to 2004.
[3]
At the time of his departure from China, in
2004, an immigration officer in Hong Kong interviewed Mr Li about his Canadian
permanent residence status based on concerns about the amount of time he was spending
in China. Mr Li had tried to board a plane to Canada, but did not have a
Canadian permanent resident card. The officer provided Mr Li a travel document
allowing him to return to Canada, where he later acquired his permanent
resident card.
[4]
Based on this information, the Minister argued, in
2013, that Mr Li had re-availed himself of China’s protection and had become
re-established as a Chinese resident. The Board concluded that Mr Li had
re-availed himself, and did not address the issue of re-establishment.
[5]
Mr Li argues that the Minister’s application for
cessation was improper because, in effect, the same issues were already decided
when the immigration officer facilitated his return to Canada in 2004. Further, he submits that the Minister’s application amounts to an abuse of
process given the delay in bringing it, the nature of the government policy
that applies to it, and the oblique motive that lay behind it – namely, to
remove him from Canada due to his criminal record. Mr Li also maintains that
the Board erred by applying the wrong burden of proof, and by relying on a
number of extraneous grounds, such as his failure to apply for Canadian
citizenship, his criminal record, and his travel history. He asks me to quash
the Board’s decision and order another panel to reconsider the Minister’s
application.
[6]
I can overturn the Board’s decision only if I
find that it erred in law or arrived at an unreasonable conclusion.
[7]
I can find no grounds for quashing the Board’s
decision and must, therefore, dismiss this application for judicial review. I
would state the issues as follows:
1.
Was the issue before the Board already decided?
2.
Do the cessation proceedings against Mr Li
amount to an abuse of process?
3.
Did the Board apply the wrong burden of proof?
4.
Was the Board’s decision unreasonable?
II.
The Board’s Decision
[8]
The Board rejected Mr Li’s contention that the
decisions in 2004 to grant him a travel document enabling him to leave Hong
Kong for Canada, and to provide him later with a permanent residency card, meant
that the Minister could not then seek cessation of his refugee status. Mr Li
had argued that, in effect, the Minister was trying to re-litigate the same
issues through cessation proceedings. The Board found otherwise; it accepted
that there was an overlap of facts, but regarded the two issues as being
entirely different. It pointed out that residency, re-availment, and
re-establishment are separate concepts.
[9]
The Board also rejected Mr Li’s suggestion that
the cessation proceedings were being used inappropriately as a substitute for
inadmissibility proceedings, the latter being the usual mechanism for the
removal of persons for criminality. While the Minister may have had other
available remedies, the Board determined that its role was simply to rule on
the merits of the cessation application.
[10]
Mr Li argued before the Board that the
Minister’s decision not to bring cessation proceedings between 2004 and 2013
amounted to a waiver of the right to make an application. The Board disagreed,
finding that Mr Li had not been prejudiced by the delay; he had not been able
to show that there was evidence in his favour that was no longer available.
Further, there was no real factual dispute about the number of trips Mr Li had
made to China or their purposes. For similar reasons, the Board found that the
delay did not amount to an abuse of process.
[11]
Dealing with the merits of the Minister’s
application, the Board found it significant that Mr Li had not applied for
Canadian citizenship but, rather, decided to maintain his Chinese citizenship
through renewal of his Chinese passport. The Board found that Mr Li’s conduct
showed his intention to avail himself of Chinese, rather than Canadian,
protection. It referred to the UNHCR Handbook which states that evidence that a
refugee has applied for and obtained a passport creates a presumption that the
person intends to re-avail himself or herself of the protection of the issuing
state. The person’s intention can also be presumed from numerous visits to his
or her country of origin. The Board accepted Mr Li’s explanation that he
initially obtained a Chinese passport in order to travel to the United States, and that one of his trips to China was for the purpose of visiting his sick
mother-in-law. However, Mr Li had made at least 17 trips to China for various purposes, including business ventures.
[12]
The Board noted that the reason Mr Li had not
returned to China after 2004 was because he had been arrested in Canada in August of that year, and was subsequently convicted and sentenced for producing,
importing, and possessing controlled substances. He served a sentence of more
than two years for those offences, and was later subject to parole conditions
that prevented him from travelling. Based on this evidence, the Board concluded
that Mr Li could not credibly claim that his trips to China were all for legitimate business purposes.
[13]
Further, the Board noted that Mr Li’s travels to
other countries – the United States, Venezuela and Thailand – also confirmed
his intention to avail himself of Chinese protection. Since he was travelling
on a Chinese passport, any consular assistance he might require in those
countries would be provided by China, not Canada.
[14]
The Board ultimately concluded that Mr Li had
not rebutted the presumption of re-availment and allowed the Minister’s
application for cessation of Mr Li’s refugee status in Canada.
III.
Issue One - Was the issue before the Board
already decided?
[15]
Mr Li argues that the Board erred in finding
that the decisions to grant him a travel document and a permanent resident card
did not preclude the Minister from bringing an application for cessation of his
refugee status.
[16]
I disagree.
[17]
In support of this argument, Mr Li relies on the
doctrine of res judicata, which requires proof that the same issue was
already decided, that the earlier decision involved the same parties, and that
the decision was final (Angle v Canada (Minister of National Revenue),
[1975] 2 S.C.R. 248). I am satisfied that the subject matter addressed in the 2004
decisions did not correspond with the issues that were before the Board.
Therefore, Mr Li cannot meet the first element of the test. It is unnecessary
to consider the other two.
[18]
In 2004, the officers had to consider whether Mr
Li had lost his permanent resident status by failing to be physically present
in Canada for the statutory minimum period of time (Immigration and Refugee
Protection Act, SC 2001, c 27, ss 28, 46(1)(b) [IRPA] –
enactments cited are set out in an Annex). In most cases, this is mainly an
arithmetic exercise.
[19]
By contrast, in the cessation application, the
Board had to decide whether Mr Li had re-availed himself of the protection of China (IRPA, s 108(1)). As seen above, this involved the consideration of many
factors – the number of trips to China and elsewhere, the reasons for those trips,
the acquisition and use of Chinese passports, and Mr Li’s subjective intentions.
This is a qualitative exercise.
[20]
Obviously, some common facts would be relevant
to both processes, particularly Mr Li’s travel history. However, that does not
mean the issues were the same.
[21]
Mr Li also suggests that, in 2004, the officers
must have turned their minds to the question of whether he had forfeited his refugee
status and, by implication, determined that he had not. It makes no sense, he
says, that a decision could be made supporting his permanent resident status
when, before the deciding officer, there was evidence purportedly indicating
that he had relinquished his refugee status. Further, since immigration
officers in foreign posts must apply the definition of a refugee, they must
also understand and apply the concept of cessation. This assertion has some
logical force. However, I can see no basis for it either in the evidence, or by
necessary implication. As I see it, in 2004, the officer did not address the
issue of cessation, either explicitly or implicitly. The officer found that Mr
Li had not lost his permanent resident status for want of physical presence in
Canada and simply did not address the issue of cessation of refugee status.
[22]
Similarly, I cannot agree with Mr Li’s
contention that the Minister should be taken to have waived the opportunity to
bring cessation proceedings because the issue of cessation could have been
dealt with at the same time as the decision relating to Mr Li’s permanent
residence status. Since the two issues are not legally connected, the proceedings
relating to Mr Li’s permanent residence do not indicate to me that the Minister
waived the opportunity to make a cessation application. In these circumstances,
the doctrine of waiver does not apply.
IV.
Issue Two - Do the proceedings against Mr Li
amount to an abuse of process?
[23]
Mr Li argues that the delay in bringing a
cessation application, from 2004 to 2013, amounts to an abuse of process. The
delay has prejudiced him, he says, because he failed to keep the necessary
records that would have enabled him to defend himself against the Minister’s
application. In particular, he no longer has the documents he presented in 2004
in support of his permanent residency.
[24]
Further, Mr Li submits that he has been the
victim of a new government policy that arbitrarily subjects persons with
refugee status to unwarranted cessation proceedings. Mr Li also argues that the
Minister is wrongly applying this new policy on cessation to old cases. This is
equivalent, he says, to applying the law retroactively, which is impermissible.
[25]
In addition, Mr Li maintains that the
proceedings are abusive because they have been brought for an oblique purpose –
to remove him from Canada due to his criminal record. To do so, he says, the
Minister must rely on inadmissibility proceedings, not a cessation application.
Mr Li also argues that he has been treated unfairly because the same CBSA
officer acted both in the inadmissibility proceedings brought against him and
the cessation application. Since the officer initiated the cessation
proceedings on his own motion, Mr Li maintains that the officer effectively
represented himself in those proceedings.
[26]
In my view, there has been no abuse of process.
[27]
Courts can stop proceedings that have become
unfair or oppressive, including where delay has caused significant prejudice (Blencoe
v British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307 at
paras 101-102). In addition, they can provide a remedy where the person
affected carried on with his or her life reasonably believing that no further
action would be taken (Ratzlaff v British Columbia (Medical Services
Commission) (1996), 17 BCLR (3d) 336 (BC CA) at para 23; Fabbiano v
Canada (Public Safety and Emergency Preparedness), 2014 FC 1219 at para
8-10).
[28]
Whether delay amounts to an abuse of process
justifying a stay of proceedings depends on all of the circumstances (Blencoe
at para 122). The test is whether the delay caused “actual
prejudice of such magnitude that the public’s sense of decency and fairness is
affected” (at para 133).
[29]
In my view, Mr Li’s circumstances do not amount
to an abuse of process based on delay. In the cases where courts have found an
abuse of process, authorities had commenced proceedings but then had not acted
on them for many years, to the person’s prejudice. In Fabbiano, for
example, through delay, the applicant lost the opportunity to make submissions
on humanitarian and compassionate grounds. Here, the decision to bring a
cessation application occurred in 2013, and was promptly prosecuted. Further,
Mr Li has not stated what difference the allegedly missing documents would have
made. Again, the facts regarding Mr Li’s travel history are not in dispute. In
the circumstances, I cannot see any prejudice to Mr Li.
[30]
On the matter of alleged retroactive application
of a new policy, the evidence shows that the law on cessation of refugee status
changed in 2012. Pursuant to the amendment, persons whose refugee status has
ceased also lose their permanent residence status (IRPA, s 46(1)(c.1)).
Along with that change came increased funding for cessation applications. In
turn, cessation applications were given somewhat higher priority within the
Canadian Border Services Agency.
[31]
In my view, this change in the consequences of a
cessation finding and the corresponding shift in priority does not amount to a
retroactive application of the law. Nor was there an impermissible application
of a new policy. There was no change to the substantive grounds on which
cessation applications could be brought. Canadian law continues to reflect the
cessation provisions of the Refugee Convention (IRPA, s 108). The
cessation proceedings relating to Mr Li were initiated after the change in the
law and, therefore, the current statutory consequences of granting the
Minister’s application properly apply to Mr Li – they are not being applied
retroactively. The fact that proceedings were not initiated earlier is likely a
product of Mr Li’s lengthy incarceration. In the circumstances, I cannot
conclude that the fact that the result of a cessation finding changed while he
was in prison imposed an abusive, arbitrary or unfair consequence on him.
[32]
As for the purpose of bringing the cessation
application, it appears likely that Mr Li’s file came to the Minister’s attention
based on Mr Li’s criminal offences. Does that make the application improper? I
do not believe so. The fact that the circumstances could have (and did) provide
the Minister with other recourses (ie, inadmissibility
proceedings), that, in itself, does not make the cessation application abusive.
The question is really whether the application is well-founded on its own
merits. Why the Minister chose to make it is, at least on the facts before me, irrelevant.
[33]
Further, I see nothing unfair or improper about
the same CBSA officer acting both on the inadmissibility proceedings and the
cessation application. In my view, based on the officer’s evidence, this is
simply a practical administrative arrangement. There is no basis for any
assertion that there is a conflict of interest or an improper motive underlying
either proceeding, or any unfairness to Mr Li. Nor was there any breach of
ethical principles, including any heightened ethical obligations applicable to
government counsel. The officer explained that he acted on general instructions
to proceed where the evidence supported a prima facie case for
cessation. He was not, as Mr Li alleged, acting for himself.
[34]
Mr Li cites concerns about the new policy,
namely, that the increased priority given to cessation cases means that persons
with only a fleeting connection with their countries of origin are being
targeted and, potentially, removed from Canada. That may be a valid concern
generally, but not in this case. As mentioned, Mr Li’s travels to and
connections with his country of origin were extensive, and reasonably motivated
the Minister’s cessation application, as well as the Board’s decision in the
Minister’s favour.
V.
Issue Three - Did the Board apply the wrong
burden of proof?
[35]
Mr Li points out that the presumption of
re-availment is merely an evidentiary presumption that falls away in the
presence of any evidence to the contrary. He contrasts it with a legal
presumption that can only be defeated by proof on the balance of probabilities.
He contends that the Board confused the two, and incorrectly required him to
prove that he relied on Canada’s protection, not China’s.
[36]
It is tempting to agree with “the assertion that ‘presumption’ is the slipperiest member
of the family of legal terms, except its first cousin ‘burden of proof’”
(Edward W Cleary, ed, McCormick on Evidence, 3rd ed, (West Publishing
Co: St Paul, Minnesota, 1984) at §342). Presumptions defy rigid classification;
indeed, the term “presumption” is often misused. There
are, however, some differences between what are often referred to as “factual
presumptions” and “legal presumptions”.
[37]
In any case, while there may be some differences
between factual and legal presumptions, that is not the critical distinction
here. Factual presumptions generally arise when proof of one fact is presumed
to be proof of another. For example, where a person pays for something with a
cheque that is later dishonoured, it is presumed that the person acquired the
purchased item by false pretences. The presumption can be rebutted by evidence
that the purchaser reasonably believed that he or she had sufficient funds to
cover the cheque (s 362(4) of the Criminal Code, RSC 1985, c C-46).
[38]
Legal presumptions generally state propositions
presumed to be true and create a burden that must be met by those who seek to disprove
them – a patent is presumed to be valid, unless there is some reliable evidence
to the contrary (brought by the party challenging the patent); a state is
presumed to be willing and able to protect its citizens, unless there is clear
and convincing evidence to the contrary (presented by a refugee claimant); an
accused person is presumed to be innocent unless proved guilty beyond a
reasonable doubt (by the Crown). These are often more in the nature of broad
legal principles, not true presumptions.
[39]
The presumption of re-availment is a factual
presumption. Proof that someone obtained a passport creates a presumption that
the person re-availed himself or herself of the protection of the issuing state.
However, as mentioned, it is not the classification of the presumption that
really matters. The real question relates to the quantum of evidence required
to defeat it.
[40]
Mr Li argues that the Board wrongly imposed on
him a burden to prove on the balance of probabilities his intent to rely on
Canada’s protection.
[41]
I disagree. I believe the presumption operates
as follows.
[42]
The Minister has the burden of proving
re-availment on the balance of probabilities. In doing so, the Minister is
entitled to rely on the presumption of re-availment by proving that the refugee
obtained or renewed a passport from his or her country of origin. Once that has
been proved, the refugee has the burden of showing that that he or she did not
actually seek re-availment. As stated in the UNHCR Handbook, where there is
proof that a refugee has obtained or renewed a passport “[i]t will, in the absence of proof to the contrary, be
presumed that he intends to avail himself of the protection of the country of
his nationality” (para 121).
[43]
Mr Li relies on a statement in a legal article
on cessation in which the authors state that the “benefit
of the doubt must be given to the refugee, as is consistent with the
restrictive interpretation appropriate to the cessation clauses” (Joan
Fitzpatrick and Rafael Bonoan, “Cessation of Refugee
Protection” in Erika Feller, Volker Türk and Frances Nicholson, eds, Refugee
Protection in International Law: UNHCR's Global Consultations on International
Protection (New York: Cambridge University Press, 2003) 491 at 525).
However, just above that statement, the authors actually cite the UNHCR
Handbook which clearly places a legal burden on refugees to rebut the
presumption of re-availment on a balance of probabilities. In that context, I
take the authors to mean that refugees should be given the benefit of the doubt
as to whether they have rebutted the presumption. They do not say that refugees
merely have to raise a doubt about re-availment.
[44]
Here, the Minister was entitled to rely on the
presumption, having proved that Mr Li had acquired a Chinese passport. However,
the Minister did not rely solely on that piece of evidence; other evidence
relating to re-availment was also tendered – the number of trips Mr Li made to China, his failure to apply for Canadian citizenship, his criminal record for importing
controlled substances, and his travel to other countries.
[45]
The Board considered all of that evidence, as
well as Mr Li’s testimony about the purposes of his trips. In the end, it found
that Mr Li had not rebutted the presumption of re-availment. In light of the
evidence before it, the Board’s conclusion was the equivalent of stating the
Minister had met the burden of proving re-availment on the balance of
probabilities. I see no error on the Board’s part.
VI.
Issue Four - Was the Board’s decision unreasonable?
[46]
Mr Li argues that the Board’s decision was
unreasonable because it unfairly relied on the fact that he had not applied for
Canadian citizenship, improperly considered his criminal record, wrongly took
into account the theoretical possibility that he might have required the
protection of Chinese consular officials, improperly equated trips to Hong Kong
with trips to mainland China, and unduly emphasized the number of trips he made
to China rather than their purposes.
[47]
In my view, the Board’s treatment of the
evidence was not unreasonable. The Board properly relied on evidence that was
relevant to re-availment.
[48]
The fact that Mr Li had not applied for Canadian
citizenship indicated his intention, based on his possession of a Chinese
passport, to avail himself of China’s protection instead. Mr Li’s explanation
for his failure to apply for citizenship – that he was too busy – was reasonably
considered and dismissed by the Board.
[49]
Likewise, the Board considered Mr Li’s criminal
history simply as a possible explanation for the fact that Mr Li ceased
travelling to China. It did not contradict Mr Li’s presumed re-availment to China.
[50]
Mr Li argues that the Board failed to take
account of the fact that a few of his trips were to Hong Kong, an area
administered separately from mainland China. His trips there, he says, cannot
be used to show his re-availment of Chinese protection. However, the evidence
showed that Mr Li made only four trips to Hong Kong, while he travelled to
mainland China at least 13 times. On this evidence, even if the trips to Hong
Kong were removed from consideration for the reason Mr Li advances, the Board’s
conclusion on re-availment would still be reasonable.
[51]
Further, the Board specifically considered the
purposes of Mr Li’s trips to China – to visit family and to conduct business –
as well as the number of trips. I cannot find that the Board ignored the
purposes of Mr Li’s trips.
[52]
Accordingly, the Board’s conclusion represented
a defensible outcome based on the facts and the law. It was not unreasonable.
VII.
Conclusion and Disposition
[53]
For the reasons above, I must dismiss this
application for judicial review.
[54]
Mr Li proposed the following questions for
certification:
1.
Is cessation an issue that could have been
raised and therefore res judicata when a visa office grants a permanent
resident travel document or the respondent grants a permanent resident card?
2.
Can the doctrine of waiver apply where the
decision is not one to which the doctrine of res judicata applies?
3.
Does the principle that “the
power to make retroactive policies will not be inferred unless the statute
requires it” apply to the policy to give increased priority to cessation
applications consequent on the changes to the Immigration and Refugee
Protection Act which came into force on December 15, 2012?
4.
Is the presumption of re-availment on obtaining
a passport an evidentiary or legal presumption?
5.
Is the duty of fairness in cessation proceedings
breached where the Minister of Public Safety has sought a removal order and the
Canada Border Services Agency hearings officer who is acting for the Minister
in admissibility proceedings both applies to the Refugee Protection Division of
the Immigration and Refugee Board for cessation and represents the Minister of
Citizenship and Immigration at cessation proceedings?
6.
Is the duty of fairness in cessation proceedings
breached where the Canada Border Services Agency hearings officer who exercises
the delegated jurisdiction to seek cessation is the same as the officer who
represents the Minister at cessation proceedings?
[55]
My responses to Mr Li’s proposed questions are
as follows:
1.
Cessation is an issue entirely separate from
permanent residence and was not addressed by the officials who considered Mr
Li’s permanent resident status. In theory, the officials could have considered
cessation, but this possibility is not sufficient to render their decisions res
judicata under these circumstances. That proposition would only apply where
the cause of action is the same; that is not the case here. Therefore, the
doctrine of res judicata does not apply here;
2.
This question is speculative, as there was no
waiver;
3.
Mr Li has cited no authority for the proposition
that a new policy cannot be applied to past circumstances. Therefore, this does
not raise a serious question of general importance;
4.
Nothing turns on this question;
5.
And 6. No factual basis for the claim of
unfairness has been made out. Therefore, no serious question of general
importance arises.
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