Docket: IMM-4467-16
Citation:
2017 FC 626
Ottawa, Ontario, July 4, 2017
PRESENT: The
Honourable Madam Justice Strickland
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BETWEEN:
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MIN CHUN ZHU
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Applicant
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and
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THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondent
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and
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FORMER
COUNSEL
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Intervener
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JUDGMENT AND REASONS
[1]
This is an application for judicial review of
the decision of the Immigration Appeal Division (“IAD”) of the Immigration and
Refugee Board of Canada (“IRB”), dated September 26, 2016, denying the
Applicant’s appeal, based on humanitarian and compassionate grounds (“H&C”),
from an Exclusion Order made against him.
[2]
For the reasons that follow, this application
for judicial review is dismissed.
Background
[3]
The Applicant is a 42 year old citizen of
China. There he worked in a factory as a junior manager. On or about 2002, he
met Ms. Mei Zhen Dong (“Ms. Dong”) and entered into a casual sexual
relationship with her. Both the Applicant and Ms. Dong had other
relationships. In June 2008, the Applicant received a call from Ms. Dong’s
sister advising him that Ms. Dong was giving birth to a child and asking him to
come to the hospital in Foshan, Guandong. The Applicant claimed that he did
not know at that time if he was the father of the child but went to the
hospital and provided his identification so that his name could be put on the
child’s birth certificate.
[4]
The Applicant became a permanent resident of
Canada, pursuant to the Saskatchewan Nominee Program, on December 9, 2008. On
or about February 5, 2010, the Applicant returned to China for a visit and
there married Ms. Dong on February 23, 2010. On March 23, 2010, the Applicant
requested a DNA test and the result, dated April 15, 2010, confirmed that he is
the biological father of the daughter born to Ms. Dong, named Yingyi Zhu. On
September 19, 2014 a report was issued pursuant to s 44(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (“IRPA”) indicating that the
Applicant was inadmissible pursuant to s 40(1)(a) of the IRPA for
misrepresenting a material fact which could induce an error in the
administration of the IRPA, being that he had failed to disclose to immigration
officials at the time of landing that he had a child born in China prior to his
coming to Canada. An admissibility hearing was held and, in a decision dated
May 13, 2015, the Immigration Division (“ID”) of the IRB issued an Exclusion
Order against the Applicant.
[5]
The Applicant appealed to the IAD. He did not
challenge the ID’s finding of misrepresentation but requested that the IAD exercise
its discretion to allow his appeal on H&C grounds pursuant to ss 67(1),
68(1) and 69(1) of the IRPA. The Applicant was represented by counsel (“Former
Counsel”), and the hearing before the IAD was held on July 22, 2016. The IAD
found that there were insufficient H&C grounds to warrant the relief sought
and dismissed the appeal by its decision of September 26, 2016, which decision
is the subject of this application for judicial review. On December 5, 2016
the Applicant filed an application, pursuant to s 71 of the IRPA, seeking to
re-open the appeal on the basis that the IAD had failed to observe a principle
of natural justice arising from the incompetence of his Former Counsel. The
IAD dismissed the application to re-open on January 13, 2017.
[6]
On November 8, 2016, the Applicant sent a letter
to his Former Counsel outlining his concerns with his legal representation
during the appeal before the IAD. By letters of November 17, 2016 (erroneously
dated July 17, 2016) and November 28, 2016, his Former Counsel responded to the
allegations. Former Counsel also submitted a letter to this Court dated
February 23, 2017. And, in accordance with the Federal Court’s Procedural
Protocol, Re Allegations Against Counsel or Other Authorized Representative
in Citizenship, Immigration and Protected Person Cases before the Federal Court,
brought a motion seeking to intervene in this proceeding. By Order of April
28, 2017 that motion was granted.
[7]
On June 16, 2017, Former Counsel filed a motion
in writing pursuant to Rule 369 of the Federal Courts Rules, SOR/98-106
(“Rules”), seeking an order pursuant to Rule 151 that certain material filed in
this application be treated as confidential, specifically, that Former
Counsel’s name be redacted from any published decisions and that other personal
and/or identifying details be excluded from any published decisions.
Decision Under Review
[8]
As noted above, before the IAD the Applicant did
not challenge the legal validity of the Exclusion Order, but requested the IAD
to exercise the discretion afforded to it pursuant to ss 67(1), 68(1) and 69(1)
of the IRPA, allowing his appeal on H&C grounds.
[9]
The Applicant testified in person at the hearing
and the IAD found that his testimony was confusing and vague. For example, the
Applicant’s evidence as to whether Ms. Dong’s boyfriend, who at the time of the
child’s birth resided a two or three hour bus ride away in Hong Kong, knew of
the pregnancy, was unclear and the Applicant did not explain why he allowed his
name to be put on the hospital birth registration as the child’s father, other
than that Ms. Dong’s sister had asked him to do so. Nor did he explain why he
commissioned a DNA test, after his marriage, other than saying that this was
because he wanted to know. The IAD did not find the Applicant’s testimony to
be reliable. It concluded that he had failed to provide clear and cogent
evidence to persuade it that he did not intend to mislead immigration officials
and that the misrepresentation was serious and not an innocent mistake on his
part.
[10]
The IAD acknowledged the Applicant’s expression
of remorse but found that he seemed to have difficulty in explaining its
impact, other than on his wife and child because of the separation from them.
He did not establish that he understood the implication to Canadian society.
The IAD found, as a positive H&C factor, the Applicant’s establishment in
Canada over the last eight years, including his employment history, the
renovation and assumption of a mortgage on an investment property owned by his
aunt and his testimony as to his close relationship with his aunt. It made
this positive finding even though the Applicant had failed to provide any
information regarding his closeness to his aunt’s three daughters, his cousins.
[11]
The IAD also found that the Applicant’s removal
from Canada would likely have an impact on his aunt. However, his aunt has
three of her own children in Canada and there was no evidence that they would
not step in to assist their mother if the Applicant were not available. For the
same reason the IAD also placed limited weight on the emotional impact his
removal would have on his aunt. The IAD found that the Applicant does have the
support of his aunt and cousins in Canada and referenced the cousins’ letters
of support, but noted that the focus of those letters was on the relationship
that the Applicant had developed with their mother. The IAD found that the
letters from his family and his former colleagues were a positive factor in his
appeal.
[12]
As to hardship suffered by the Applicant if he
were to return to China, the IAD considered it to be little more than economic
and perhaps disappointing some of his dreams and aspirations for the future.
It considered that he grew up in China and, while his prior factory job would
not be available to him, that his evidence was that he knew of no other reason
that he could not find employment in China. While he believed his income would
be lower, he failed to present any documentary evidence that his standard of
living would be lowered or lowered to an extent to cause undue hardship. His
mother, brother, wife and child reside in China. The IAD found, on balance,
that the emotional or economic hardship to the Applicant would be offset by
reunifying with his family working and living in China as he did for most of
his life.
[13]
Moreover, the IAD also considered the best
interests of the Applicant’s eight-year-old daughter living in China and found
that the child would reasonably benefit from the reunification of her parents
in China and the day-to-day presence of her father in her life. The IAD
acknowledged the Applicant’s testimony that because the child did not have her
birth registered with the Chinese government she is not permitted to attend a
publically funded school and the tuition paid by the Applicant for his
daughter’s attendance at another school ($1,200 per year), but found that the
Applicant had not provided clear evidence as to why his daughter could not
attend a public school, as the Applicant testified that her birth had been registered
at the hospital and he was noted as the father. And, if the birth could not be
registered because the Applicant and Ms. Dong were not married at the time,
they had subsequently married. There was no documentary evidence to
corroborate that the child could not now be registered, and, his testimony was that
he could pay a fine of CDN$10,000 in order for her to attend a public school.
He provided no reason as to why he could not have set aside money for this
purpose. The IAD placed little weight on the Applicant’s testimony as to the
reason why his daughter must stay in her current school as it was confusing and
not corroborated. It concluded that it was in the child’s best interest to
have her father reunite with her and his wife in China, given that there was no
reasonable expectation that he could sponsor his daughter to Canada.
[14]
In light of the circumstances, the IAD found
that there were not sufficient H&C factors to warrant special relief,
declined to exercise its discretionary jurisdiction and dismissed the appeal.
Issue and Standard of
Review
[15]
This application raises just one issue, whether
the decision of the IAD should be set aside on the grounds of procedural
fairness due to incompetence of counsel.
[16]
The parties submit and I agree that allegations
of incompetent or negligent representation involve issues of procedural
fairness and, as such, the correctness standard of review applies (Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43; Mcintyre
v Canada (Citizenship and Immigration), 2016 FC 1351 at para 16 (“Mcintyre”);
Ghauri v Canada (Citizenship and Immigration), 2016 FC 548 at para 22).
In reviewing a decision for correctness, the Court “will
not show deference to the decision maker's reasoning process; it will rather
undertake its own analysis of the question. The analysis will bring the court
to decide whether it agrees with the determination of the decision maker; if
not, the court will substitute its own view and provide the correct answer”
(Dunsmuir v New Brunswick, 2008 SCC 9 at para 50 (“Dunsmuir”)).
Positions of the Parties
Applicant’s Position
[17]
The Applicant submits that legal counsel are
required to act with reasonable care, skill and knowledge (Nagy v Canada
(Citizenship and Immigration), 2013 FC 640 at para 25; Guadron v Canada
(Citizenship and Immigration), 2014 FC 1092 (“Guadron”)). Where the
incompetence or negligence of the applicant’s representative is sufficiently
specific and clearly supported by the evidence, such negligence or incompetence
is inherently prejudicial to the applicant and will warrant overturning the
decision, notwithstanding the lack of bad faith or absence of a failure to do
anything on the part of the tribunal (Shirwa v Canada (Minister of
Employment and Immigration), [1994] 2 FC 51 at para 12 (“Shirwa”)).
[18]
The Applicant acknowledges that here he has the
onus of proving his counsel’s incompetence (Yang v Canada (Citizenship and
Immigration), 2008 FC 269 at para 18 (“Yang”)) and that before the
IAD he had the onus to show why he should not be removed from Canada (Ribic
v Canada (Minister of Employment and Immigration), [1985] IABD No 4 (Imm
App Bd) at para 14 (“Ribic”)). The Applicant points out that the IAD
commented on the lack of evidence presented during the appeal and references
eight excerpts from the IAD’s decision to that effect. According to the
Applicant, the primary reason why the IAD dismissed his appeal was the paucity
of evidence presented (Kim v Canada (Citizenship and Immigration), 2012
FC 687; McInytre) which was the result of his Former Counsel’s failure
to properly prepare both herself and the Applicant for the hearing. He lists
examples of this alleged lack of preparation including his Former Counsel’s
failure to file corroborative documentary evidence to speak to critical issues
such as documents pertaining to the culture of factory workers, the standard of
living and economic situation in China, undocumented children, the importance
of a certificate from family planning authorities, and the consequences of
having unauthorized births in China.
[19]
The Applicant submits that his former counsel
was incompetent in representing him in the following ways:
i)
She failed to adequately prepare for the appeal;
ii)
She failed to review the materials relevant to
the appeal;
iii)
She had little or no knowledge of the
Applicant’s appeal and the conditions in China relevant to him;
iv)
She failed to prepare him for his appeal;
v)
She failed to communicate with the Applicant and
his cousin, Ms. Yu, in an effective and timely manner;
vi)
She failed to advise the Applicant of the legal
test he would have to meet for the appeal to be granted;
vii)
She failed to advise the Applicant as to the
evidence required for the appeal;
viii)
She failed to obtain and file corroborative
documentary evidence prior to and at the hearing;
ix)
She failed to call witnesses at the hearing in
support of the Applicant. The affidavits of his cousins, Debbie Louis and
Susan Wan, filed in support of his application for judicial review confirm
their willingness to testify before the IAD as well as their close relationship
with the Applicant. However, they were not aware that they could testify at
the hearing;
x)
She failed to seek an adjournment to allow the
Applicant to review the missing documents previously not discussed and highly
relevant to the appeal, namely pages 65 to 79 of the ID record.
[20]
The Applicant submits that he has established,
on a balance of probabilities, that his Former Counsel represented him in an
incompetent and negligent manner, which resulted in a breach of natural justice
as the Applicant had no meaningful hearing before the IAD which led to the
dismissal of his appeal and his removal from Canada. There is a reasonable
probability that, but for the alleged incompetence and negligence of his Former
Counsel, the result of the hearing would have been different (Bedoya v
Canada (Citizenship and Immigration), 2007 FC 505; El Kaissi v Canada
(Citizenship and Immigration), 2011 FC 1234 at para 21; Rodrigues v
Canada (Citizenship and Immigration), 2008 FC 77 (“Rodrigues”)).
[21]
According to the Applicant, it is also notable
that the Certified Tribunal Record (“CTR”) does not contain documents essential
to his appeal, including documents on children born out of wedlock,
undocumented children and the culture of factory workers in China.
[22]
Further, while his Former Counsel was given
opportunities to respond to these allegations her responses were inaccurate and
misleading, and sought to put the blame on the Applicant.
Respondent’s Position
[23]
The Respondent takes no position on whether the
conduct of the Applicant’s Former Counsel amounts to incompetence. However,
even if it does, the Respondent submits that the Applicant has not established
a reasonable probability that the result of the IAD hearing would have been
different but for the incompetence. The Applicant has not submitted sufficient
evidence to call into question the IAD’s conclusion on the lack of H&C
grounds.
[24]
While not specifically cited, the IAD’s decision
reflects that the Ribic factors were considered in determining whether
there were H&C grounds to warrant special relief. Specifically, the
seriousness of the misrepresentation leading to the removal order and the
circumstances surrounding it; the remorsefulness of the Applicant; the length
of time spent in Canada and the impact on the family that removal would cause;
the support available to the Applicant in the family and the community; the
best interest of the child directly affected by the decision; and, the degree
of hardship that would be caused to the Applicant by removal from Canada, including
the conditions in the country of removal.
[25]
As to the preparation of the Applicant to
testify, there is no evidence of what further information the Applicant could
have supplied in his testimony which would have established the Ribic
factors. The IAD accepted the Applicant’s remorse, that there would be some
hardship to his aunt if he was removed, his establishment in Canada and that he
would suffer some economic hardship in China. The IAD’s decision was based on
the weighing of this against the negative factors, not a lack of evidence in
the Applicant’s testimony.
[26]
With regard to the missing pages of the IAD
Record, these were portions of the Applicant’s immigration forms, his
daughter’s birth certificate, submission letter of his former representative,
and a transcript of an interview conducted by a Canada Border Services Agency officer.
The Respondent submits that these documents pertain to the issue of the
Applicant’s misrepresentation, which was not challenged before the IAD. Therefore,
adjourning the hearing or allowing the Applicant to review the documents would
not have assisted in establishing the Ribic factors.
[27]
With respect to the testimony of the Applicant’s
aunt and cousins, the Respondent submits that there is no basis to conclude
that oral testimonies would have made a difference in the Applicant’s
situation. The IAD considered their support letters which expressed in some
detail the Applicant’s importance to his family in Canada, in particular, to
his aunt.
[28]
Finally, with regard to the alleged failure to
submit more documentation concerning the culture of factory workers, the
standard of living and economic situation, undocumented children, the
importance of certificates from family planning authorities and the
consequences of unauthorized births in China, the Respondent acknowledges that
the IAD indicated that the Applicant’s explanation as to why his daughter could
not go to public school was confusing and that there was a lack of documentary
evidence on this issue. Further, that the Applicant did submit some
documentation in this application which corroborates that registration with
family planning authorities is required to access public schooling and that
there may be fines for unauthorized births that must be paid before registration
can occur. However, the IAD found that even if a fine was required, the
Applicant had assets in Canada to offset that cost and that it was in the best
interest of his child to be reunited with her father in China than for him to
remain in Canada where he could not sponsor her. Accordingly, even if the
documentation had been submitted, it would not have overcome the IAD’s
conclusion in this respect. The best interests of the child were appropriately
considered.
[29]
In summary, the Respondent submits that the
Applicant has not met his onus as there is insufficient evidence to show that
the Ribic factors would have been assessed and weighed in a different
manner but for the Applicant’s Former Counsel’s conduct.
Former Counsel’s (Intervener) Position
[30]
Former Counsel submits that the Supreme Court of
Canada in R v GDB, 2000 SCC 22 (“GDB”) established that there are
two criteria that must be met in order for a claim of incompetence of counsel
to succeed. First, that counsel’s act or omissions constituted incompetence
and, second, that a miscarriage of justice resulted. There is also a strong
presumption that counsel’s conduct fell within the range of reasonable
professional assistance and the onus is on the applicant to establish otherwise
(GDB at para 27; also see Memari v Canada (Citizenship and
Immigration), 2010 FC 1196 at para 36 (“Memari”): Teganya v
Canada (Citizenship and Immigration), 2011 FC 336 at para 30). An
allegation of incompetence has significant consequences for the reputation and
practice of the impugned lawyer and accordingly, such allegations ought only to
be made in the clearest of cases. It is not the role of the Court on judicial
review to assess each action and decision of counsel in respect of a file. The
appropriate venue for a full assessment of the professional competence of
counsel ought to be the professional regulatory body which, in this case,
notably has not been tasked with reviewing Former Counsel’s conduct. Further,
if a claim can be decided on other grounds, an assessment or commentary on the
conduct of counsel is best avoided (GDB at para 29, citing Strickland
v Washington (1984), 104 S Ct 2052, 466 US 668, 80 L Ed 2d 674 (US Sup
Ct)). Accordingly, the Court should only consider the professional conduct of
Former Counsel if it is realistic that the threshold for a breach of natural
justice can be met. In this case, neither of the issues raised by the
Applicant requires an assessment of Former Counsel’s conduct as, on a balance
of probabilities, they did not cause a miscarriage of justice.
[31]
Former Counsel submits that the Applicant’s
assertions can essentially be captured within two allegations which could
potentially lead to a miscarriage of justice. First, the alleged failure to
support the Applicant in his story that he did not know about the birth of his
daughter until after the DNA test. Second, the alleged failure to present
H&C factors including the current situation in China and having viva
voce testimony from family members.
[32]
Former Counsel submits that the Applicant’s
story concerning his knowledge of his biological link to his daughter prior to
the taking of a DNA test has been inconsistent throughout his immigration
proceedings and specifies what Former Counsel views as examples of this. Former
Counsel takes the position that the strategy of the Applicant’s current counsel
is apparently to again return to the IAD to present his fictitious story with “corroborating documents” and a “well-prepared” witness.
[33]
Former Counsel submits that the evidence on “black children” (unauthorized children) and access to
public schools would presumably be relevant for two purposes and, in both
scenarios, no prejudice can be said to have arisen by the failure to present
it. The first would be to show that the Applicant only registered himself as
the father of the child on her birth certificate as a favour to Ms. Dong and
that the documentary evidence as to unauthorized children would render this
explanation credible. However, the Applicant does not present any documentary
evidence in support of his current counsel’s assertion that the “culture of factory workers in China” would
corroborate his story that such favours were a common practice and, in any
event, this does not explain the remarkable coincidence that the child in
question was his own daughter.
[34]
The second reason why this documentary evidence
could be relevant would be to show that the best interests of the child would
be negatively impacted. However, the documentary evidence submitted by the
Applicant’s current counsel is misleading in that it predates the substantial
changes to China’s one child policy and hukou. The country conditions that
existed at the time of the Applicant’s hearing before the IAD are not
consistent with the documents he now presents to this Court. It would have
been highly unethical for Former Counsel to have presented such evidence before
the IAD. In that regard, Former Counsel also directs the Court’s attention to
the Affidavit of Ms. Gonzalez Nino (“Gonzalez Affidavit”) filed by the
Respondent and pertaining to China’s current family planning policies.
Analysis
Preliminary issue:
confidentiality order
[35]
By way of a motion in writing made pursuant to
Rule 369 and filed on June 15, 2017, Former Counsel asked this Court to
exercise its jurisdiction under Rule 151 and redact Former Counsel’s name from
this decision. Further, that any other personal and/or identifying details be
excluded from the decision. Former Counsel submits that the publishing of
counsel’s name in a decision that addresses an allegation of professional
incompetence, regardless of whether or not the Applicant succeeds, will be
detrimental to Former Counsel’s professional reputation which is essential to Former
Counsel’s ability to practice law. Moreover, the Law Society of Saskatchewan,
as the applicable professional regulatory body, is the appropriate forum for
deciding issues of incompetence and that it is the practice of Law Societies
across Canada to not publish the names of lawyers where there has not been a
finding against them. In this case, because of the significant prejudice to
Former Counsel, the salutary effects of redacting Former Counsel’s name
outweigh any deleterious effects (Sierra Club v Canada (Minister of Finance),
2002 SCC 41 (“Sierra Club”)).
[36]
Given that the motion was filed by Former
Counsel on the afternoon preceding this hearing, the Applicant and Respondent
were precluded from filing and serving written representations in reply within
four days of being served with the motion, as permitted by Rule 369(3). I, therefore,
directed that those parties would be permitted to address the request for a
confidentiality order at the hearing before me.
[37]
At the hearing counsel for both the Applicant
and the Respondent took no position on the request. Counsel for Former Counsel
clarified that he did not seek to seal Court records or close the hearing to
the public. The request was restricted to the redaction of Former Counsel’s
name from the published decision of this Court. He noted that the Applicant
had not made a complaint to the Law Society of Saskatchewan and that third
parties are able to obtain and publish on the internet decisions of this Court.
Thus, even if this Court does not make a finding of professional misconduct,
Former Counsel’s reputation would be damaged by the allegation contained in such
circulation.
[38]
In my view, it is arguable whether a mere
allegation of incompetence will have negative consequences on Former Counsel’s
professional reputation and whether the limited affidavit evidence of potential
harm presented by Former Counsel establishes that the deleterious effects of
publishing Former Counsel’s name outweigh the public interest in open court
proceedings (Rule 151(2); Sierra Club at para 53). However, in this
particular circumstance, the Applicant has not made a complaint to the Law
Society of Saskatchewan and, for the reasons below I have made no finding as to
whether or not there was incompetence. As well, I note that Former Counsel’s request
for confidentiality is limited to excluding identifying information in these
reasons. The record before the Court remains accessible to the public. Given
the totality of the circumstances and the nature of the request, I will permit
Former’s Counsel’s name and identity to be omitted from the style of cause and
in this decision (also see Sierra Club at paras 79, 86 and 87).
Should the
decision of the IAD be set aside on the grounds of procedural fairness due to
incompetence of counsel?
[39]
In Galyas v Canada (Citizenship and
Immigration), 2013 FC 250 Justice Russell articulated the test for
addressing allegations of ineffective or incompetent assistance of counsel:
[84] It is generally recognized that if
an applicant wishes to establish a breach of fairness on this ground, he or she
must:
a. Provide corroboration by giving
notice to former counsel and providing them with an opportunity to respond;
b. Establish that former counsel’s
act or omission constituted incompetence without the benefit and wisdom of
hindsight; and
c. Establish that the outcome would
have been different but for the incompetence.
See, for example, Memari, above; Nizar
v Canada (Minister of Citizenship and Immigration), 2009 FC 557; and Brown
v Canada (Minister of Citizenship and Immigration), 2012 FC 1305.
(Also
see Badihi v Canada (Citizenship and Immigration), 2017 FC 64 at paras
17-18; and, Guadron at para 18).
[40]
It must be established, first, that counsel’s
acts or omissions constituted incompetence and, second, that a miscarriage of
justice resulted (GDB at para 26). The burden is on the applicant to
establish both the performance and the prejudice components of the test to
demonstrate a breach of procedural fairness (Guadron at para 17).
Incompetence of former counsel must be sufficiently specific and clearly
supported by the evidence (Shirwa at para 12; Memari at para 36).
[41]
As stated by Justice Mosley in Jeffrey v
Canada (Minister of Citizenship and Immigration), 2006 FC 605 (“Jeffrey”):
[9] […]The party making the allegation of
incompetence must show substantial prejudice to the individual and that
prejudice must flow from the actions or inaction of the incompetent counsel. It
must be shown that there is a reasonable probability that, but for the
counsel’s unprofessional errors, the result of the proceeding would be
different.
(also
see Guadron at para 11).
[42]
There is also a strong presumption that
counsel’s conduct fell within the wide range of reasonable professional
assistance (GDB at para 27; Yang at para 18). Incompetence will
only result in procedural unfairness in “extraordinary
circumstances” (Shirwa at para 13; Memari at para 36; Pathinathar
v Canada (Citizenship and Immigration), 2013 FC 1225 at para 38; Nizar v
Canada (Citizenship and Immigration), 2009 FC 557 at para 24).
[43]
That said, in GDB the Supreme Court of
Canada also stated:
[29] In those cases where it is apparent that no prejudice has
occurred, it will usually be undesirable for appellate courts to consider the
performance component of the analysis. The object of an ineffectiveness claim
is not to grade counsel’s performance or professional conduct. The latter is
left to the profession’s self-governing body. If it is appropriate to dispose
of an ineffectiveness claim on the ground of no prejudice having occurred, that
is the course to follow ([Strickland v Washington, 466 U.S. 668 (1984)]
at p. 697).
[44]
In my view, the determinative factor in this
matter is that the Applicant has not established that the outcome of his appeal
would have been different but for the incompetence of his Former Counsel. In
other words, the prejudice component of the test has not been satisfied.
Accordingly, the Court need not determine whether the conduct of Former Counsel
did or did not amount to incompetence (GDB at para 29).
[45]
While the Applicant has identified a number of
acts or omissions which he asserts demonstrate incompetence by his Former
Counsel, in my view, and keeping in mind that the Applicant did not challenge
the ID’s finding of misrepresentation but requested that the IAD exercise its
discretion to allow his appeal on H&C grounds, the most significant of
these allegations concern his Former Counsel’s failure to provide corroborative
evidence. However, it is apparent from the IAD’s reasons and analysis that a
lack of corroborative evidence was not determinative of its finding of insufficient
H&C grounds to allow the appeal.
[46]
In this regard, the two main factors raised by
the Applicant were his close relationship to his family in Canada and the
financial consequences his return to China would have on him and his daughter.
[47]
As to the first of these, the IAD acknowledged
positive factors in the Applicant’s appeal and weighed these against the
remainder of his evidence. It is not apparent how the testimony of any family
members or additional corroborative evidence would have changed the IAD’s findings.
For example, although the IAD stated that the Applicant failed to provide any
information regarding the closeness of his relationship with his cousins in
Canada, it went on to find that the Applicant had demonstrated that he had
established himself in Canada to an extent which was a positive factor in his
appeal. The IAD also found that the support he received from his family and
co-workers in Canada was a positive factor, as was his role in his aunt’s
life. The IAD determined that his aunt does not rely on him financially but
has relied on him to keep her company, help with chores and repairs and that he
assisted her with her restaurant prior to its sale. It found that the
Applicant’s removal would likely have an impact on his aunt. However, she has
three daughters of her own in Canada and there was no evidence that they would
not step in to assist their mother if the Applicant were not available.
Further, although his removal would have an emotional impact on his aunt, the
IAD stated that it placed limited weight on this again because of his aunt’s
three daughters and their spouses in Canada.
[48]
In support of this application for judicial
review, new affidavits were filed by the Applicant’s cousins. These
essentially state that the family is close and reiterate that they support the
Applicant and that he has helped their mother. While it is suggested in the
affidavits that the Applicant connects with their mother in a “cultural way” which they, her daughters, cannot, the affidavits
do not say that the daughters will not step in to assist their mother if the
Applicant is removed, which was evidence that the IAD noted as absent.
[49]
In my view, given the IAD’s reasons, it was not
the lack of evidence as to the closeness of the cousins to the Applicant upon
which it based its decision. Further, the content of the new affidavits does
not persuade me that had the cousins or aunt been called to testify that the
result of the proceeding would have been any different.
[50]
I would also point out that in the answers to
questions sent to the Applicant by Former Counsel in advance of the IAD hearing
(an unredacted copy of which was submitted at the hearing before me), the
Applicant stated that he used to live with his aunt before, and for a while
after, he purchased her house. Yet the April 28, 2017 affidavit of Susan Wan
states that the Applicant lives with their mother and allows her to live an
independent life. That may be so, but it was not the information that was
provided to Former Counsel prior to the hearing by the Applicant and a change
of circumstances subsequent to the hearing cannot impact the decision already
made.
[51]
As to the second factor, the IAD raised a lack
of documentary evidence pertaining to country conditions, specifically that the
Applicant had failed to provide any documentary evidence that his standard of
living in China would be lowered or that it would be lowered to an extent to
cause undue hardship. It is clear from the record that the Applicant’s Former
Counsel did not file any documentary evidence in this regard.
[52]
Nevertheless, and significantly, this lack of
documentary evidence was not crucial to the IAD’s reasoning and accordingly no
prejudice is made out. The IAD referred to the Applicant’s testimony that his
former job in China would not be available to him upon his return but stated
that he had also conceded that he knows of no other reason why he could not
find employment in China. A review of the transcript of the hearing confirms
that the Applicant testified that his former employer in China would not accept
people who quit, that it will be difficult for him to find a job and that his
salary would not be much, perhaps CDN$400 to CDN$600. He also testified that
he has the ability to work, that there is nothing legally preventing him from
working or studying in China, and that he speaks the language in China.
However, the IAD’s reasons demonstrate that greater weight was placed on the
Applicant’s circumstances in China, being that his mother, brother, wife and
child reside there and that because the Applicant failed to declare his
daughter as a dependent, it was likely that she would be excluded as a member
of the family class in relation to him. The IAD found, on balance, that the
emotional or economic hardship of removal would be offset by reunifying with
his family and working and living in China as he did for most of his life.
[53]
I would also note that it was incumbent on the
Applicant, in asserting that the absence of such documentary evidence was
professional negligence leading to a procedurally unfair and unjust hearing, to
put forward documentation clearly supporting his position and, in effect,
filling that gap (McKenzie v Canada (Citizenship and Immigration), 2015
FC 719 at paras 61-63; Teganya v Canada (Citizenship and Immigration),
2011 FC 336 at paras 32 and 37). I have reviewed the evidence attached as an
exhibit to the Applicant’s affidavit filed in support of his application for
judicial review in this regard. It is very limited. There are three
articles. The source of the first undated document is unclear and current
counsel for the Applicant could only point the Court to the contact information
of the editor in that regard. The article speaks about the end of cheap labour
in China, that most minimum wage earners have little left over at the end of
the month, planned layoffs in the coal mining and iron and steel industries,
prior layoffs of private sector workers in the manufacturing and construction
industries and that older low-skilled workers are likely to be the worst
affected. A reference in the article to events in July 2016 also suggest that
it post-dates the IAD hearing. The second three page online article by “War on Want”, dated March 19, 2012 compared generally
factory workers wages, cost of living and conditions to those of workers in the
United States. The final document appears to be an extract from Huffpost
Business (undated) which is described as an “infographic”
and is entitled “Are Workers Better Off in
China, Germany or the US?”. In whole, and despite current counsel’s
efforts to tie these articles to the Applicant’s circumstances, I am not
convinced that, had these documents been filed by Former Counsel, they would
have served to establish that the economic hardship he would suffer if returned
to China outweighed the other factors considered by the IAD.
[54]
Similarly, I have also reviewed the evidence
submitted by the Applicant concerning the family planning laws in China and
unauthorized or “black children” and considered
whether this evidence could have had a material impact on the IAD’s finding in
respect of the best interests of the child. Having done so, I am satisfied
that the evidence does not establish that the Applicant’s daughter would not
have access to public education because the Applicant does not have a
certificate from the family planning authorities as he asserted.
[55]
The IAD stated that the Applicant had testified
that because his daughter did not have her birth registered with the Chinese
government, she was not permitted to attend a publicly funded school but that
he had not provided clear evidence on this point nor any documentary evidence
to corroborate this. In his affidavit filed in support of this application for
judicial review, the Applicant stated there was no documentary evidence filed
by his Former Counsel to support his testimony regarding the birth certificate
issued by the hospital and the certificate issued by the family planning
authorities. Had there been, the IAD would have understood what he was trying
to explain about the two certificates and unauthorized births.
[56]
However, the documentary evidence submitted by
the Applicant in support of his application for judicial review does not
clarify this. Rather, it speaks to the plight of children who are not
registered in the household registration known as hukou without which a person
cannot attend school, receive healthcare or government support, travel by train
and plane or get married. As acknowledged in the Applicant’s affidavit, his
daughter is registered in a hukou, a copy of which, issued in 2010, was
provided.
[57]
And, while the Applicant alleges that his
daughter does not have access to public education because he must first pay a
fine of approximately CDN$10,000 and obtain a certificate from the family
planning authorities, the documentary evidence that he submitted does not
indicate that a child who has already been registered in the hukou would not
have access to public education or any associated benefits until any fine has
been paid and/or a certificate from a family planning authority has been
obtained. Rather, it indicates that fines (or social support fees) are imposed
and non-payment is used to withhold registration in the hukou, particularly in
circumstances where children were born in contravention of China’s prior “one child” policy, but also children born outside of
wedlock. The evidence does not speak to a circumstance such as this where the
parents subsequently marry and there is only one child of the marriage. The
evidence does not support a connection between a family planning certificate,
the payment of the fines and the right to public education as asserted by the
Applicant and by his wife in the letter she filed in support of the application
for judicial review.
[58]
And, as pointed out by Former Counsel, the Gonzalez
Affidavit, filed by the Respondent, attaches documentation reflecting the
current state of the law in this area. That evidence shows that the link
between the hukou and fines is being broken and that effective January 2016, a
two-child policy came into effect. Further, an article dated January 4, 2016
states that a document was issued by the General Office of the State Council,
to the effect that illegal restrictions to citizens’ rights to a hukou will be
removed, that every citizen will get registered in the permanent residence
registration system according to law, that unregistered citizens include those
who do not have a birth certificate, those born out of wedlock or those holding
previously invalid registration papers and that the hukou is a basic right
linked to social welfare and other rights. Overall, both the evidence filed by
the Applicant and the more recent documentary evidence filed by the Respondent
does not support the Applicant’s assertion that his daughter will not have
access to public education, even though she has been registered in the hukou.
I would also add, however, that while the evidence also suggests that children born
outside of the one child policy or who are otherwise unauthorized can now
register in the hukou without having to first pay fines, one source indicated
that in some provinces the fine would eventually have to be paid.
[59]
In any event, the IAD referred to the
Applicant’s statement that a fine of CDN$10,000 could be paid in order for the
child to attend a public school. The IAD stated that the Applicant should have
anticipated his removal from Canada after the ID hearing in May 2015, and other
than stating that he could not afford to pay the fine, provided no reason why
he could not have prioritized the issue and set money aside in order to pay the
fine. The IAD had previously noted that the Applicant claimed that he owed CDN$10,000
in credit card debt and that he held a Registered Retirement Savings Account.
The documentary evidence submitted by Former Counsel showed that the Applicant
had sent approximately CDN$24,550 to China between September 2014 and April
2016, that he had a mortgage on this home in the amount of $97,152 as of March
27, 2012 and that a 2016 property tax notice indicated a taxable assessment of
$73,700. While in his affidavit filed in support of this judicial review the
Applicant asserts that he has no equity in his house, that he took out a
mortgage that exceeds it value, that the real estate market has dropped such
that even if he could sell his home he may not be able to pay the mortgage and
that his car broke down a few months ago and he cannot afford to repair it, he
submitted no evidence in support of this or otherwise as to his finances nor
does he take issue with the acts or omissions of Former Counsel on this point.
His complaint is, in essence, with the finding of the IAD.
[60]
The Applicant does, however, take issue with the
lack of documentary evidence filed by Former Counsel in support of the “culture of factory workers” in China. In his view
this would have supported his position before the ID and IAD that he had only a
casual sexual relationship with Ms. Dong before coming to Canada and that such
relationships are common among factory workers and that it was also common
practice to provide ones identification if requested by another factory worker,
thus his surprise upon learning after his arrival in Canada that he was the
father of Ms. Dong’s child. However, in his application for judicial review,
the Applicant did not file any documentary evidence in this regard. He also
asserted that Former Counsel had not adequately prepared him to respond to the
IAD questions including as to why Ms. Dong’s long term boyfriend, who the
Applicant claimed lived in Hong Kong and who he assumed was the father of the
child, had not attended at the birth or provided his identification for the
hospital birth certificate. Before the IAD the Applicant testified that there
was a difference between Hong Kong and mainland China and that somehow this
precluded Ms. Dong’s boyfriend from attending the birth.
[61]
It is true that his testimony on this point was
unclear and that Former Counsel did not attempt to clarify it. However, the
documentary evidence filed in support of his application for judicial review
pertained only to the entry of foreign nationals to Hong Kong, a Special
Administrative Region of China. No information was provided that addressed restrictions
on former residents of mainland China, now residing in Hong Kong, returning to
visit mainland China.
[62]
In short, while the IAD found that the Applicant
had not provided clear and cogent evidence to persuade it that he did not
intend to mislead immigration officials and that the misrepresentation was
serious and not an innocent mistake, I cannot conclude based on what the
Applicant has filed in his application for judicial review, that the outcome
would have been different but for the acts or omissions of his Former Counsel
(see Yang at para 26). I have also reviewed the transcript of his
hearing before the ID, which is not at issue and there he had different
representation, but I do note that his testimony at that hearing was equally
unclear.
[63]
While the Applicant has made other allegations
of incompetence, having regard to the totality of the evidence and the reasons
provided by the IAD, I have concluded that he has not demonstrated that there
is a reasonable probability that, but for the alleged incompetence and
negligence of his Former Counsel, the result of the hearing would have been
different (see Jeffrey at para 9), or, put otherwise, that incompetence
by counsel resulted in a miscarriage of justice as it resulted in the Applicant
being denied a meaningful hearing before the IAD leading to the dismissal of
his appeal (Rodrigues at para 39). The IAD simply did not accept his
explanations which, even if they had been imparted with greater clarity by the
Applicant, would not have changed the underlying facts and concerns. As the Respondent
submitted, there is insufficient evidence to show that the Ribic factors
would have been assessed and weighed in a different manner but for the
Applicant’s Former Counsel’s conduct.
[64]
Accordingly, it is not necessary for me to
decide whether the conduct of counsel amounted to incompetence. I would,
however, say that Former’s Counsel’s conduct was not, by any measure, exemplary
either in Former Counsel’s dealings with the Applicant or in Former Counsel’s
submissions in response to his assertion of professional negligence.
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