Docket: IMM-3666-14
Citation:
2015 FC 1189
Ottawa, Ontario, October 22, 2015
PRESENT: The
Honourable Mr. Justice Annis
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BETWEEN:
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HUO JUN YANG
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application for judicial review
pursuant to section 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA] of a decision by a Citizenship and Immigration Canada
officer [the Officer] refusing to issue the Applicant, Huo Jun Yang, permanent
residence based on Humanitarian and Compassionate [H&C] grounds. The Applicant
is seeking an order to quash the decision and refer the matter back to
Citizenship and Immigration Canada for reconsideration.
[2]
For the reasons that follow, the application for
judicial review is dismissed.
II.
Background
[3]
The Applicant, a citizen of China, entered
Canada in February 2010. Shortly after his arrival, he filed a refugee claim,
which was denied a few months later. On September 12, 2012, the Applicant
submitted an application for permanent residence based on H&C grounds.
III.
Impugned Decision
[4]
On April 9, 2014, the Officer refused the
Applicant’s permanent residence application on H&C grounds. The Officer
weighed all the factors in support of the H&C application and concluded
that the Applicant failed to discharge his burden of proving that he would
suffer unusual and underserved or disproportionate hardship if the application
was refused.
[5]
The Officer found that the Applicant failed to
make reasonable efforts to obtain travel documents and thus could not
demonstrate that he remained in Canada beyond his control. Little weight was
therefore attributed to this submission.
[6]
The Officer further considered the Applicant’s
work and ability to meet his financial needs. These findings, although not
determinative, were deemed favourable to the Applicant and given some weight.
[7]
In reviewing the Applicant’s establishment, the
Officer found that there was no real establishment in Canada, and thus
attributed little weight to this argument. The Officer concluded that renting a
room and considering the landlord near-family could not reasonably be
considered demonstrating stronger ties to the Applicant than the ties he would
have with his own wife, daughter, and parents who all reside in China.
[8]
The Officer considered the Applicant’s English
courses as a favourable factor, although not determinative in the matter.
[9]
The Officer found that the Applicant’s volunteer
activities and charitable donations, as well as his good civic record,
indicated good qualities, but did not warrant an H&C exemption.
[10]
After the decision, the Applicant raised
concerns with respect to the incompetent representation he received for the
preparation of his H&C application and for his Application Record filed in
the Federal Court on June 16, 2014. Further to motions, the Applicant was
granted leave to file a Supplementary Application Record. This was for the
purpose of applying pursuant to the Protocol Re Allegations against Counsel
or Other Authorized Representative in Citizenship Immigration and Protected
Person Cases before the Federal Court in order to advance an argument of a
procedural fairness violation resulting from incompetent representation.
[11]
The Applicant claims that his representative
failed to bring forward the situation of his daughter born on April 27, 2009
and make submissions concerning her best interests as part of the H&C
application. After further investigation, the Applicant stated that he was
deceived as to the identity and professional status of the person who provided
him with legal advice and services since he was provided with legal services by
an imposter or by a person acting without supervision by a licensee of the
Immigration Consultants of Canada Regulatory Council [ICCRC].
[12]
The Court granted leave to the Applicant to file
a Supplementary Application Record which goes to the inaccuracies in the
original Application Record as well as the competence and diligence of previous
counsel. This evidence is admitted in order to resolve issues of procedural
fairness regarding the best interest of the child [BIOC] in China.
IV.
Issues
[13]
The following issues arise in this application:
1.
Should the decision of the H&C Officer be
set aside on the grounds of procedural fairness regarding the Applicant’s representation?
2.
Did the Officer commit a reviewable error in
concluding that the Applicant’s extended stay in Canada was not due to any
inability to leave involving his lack of a passport?
V.
Standard of Review
[14]
The applicable standard of review for an
officer’s H&C decision is reasonableness (Dunsmuir v New Brunswick, 2008
SCC 9 at para 47; Kisana v Canada (Citizenship and Immigration), 2009
FCA 189 at para 18).
VI.
Analysis
A.
Incompetent Representation
[15]
The incompetence of counsel will only constitute
a breach of natural justice in “extraordinary
circumstances.” The incompetence must be sufficiently specific and
clearly supported by the evidence: Memari v Canada (Citizenship and
Immigration), 2010 FC 1196 at para 36.
[16]
In order to succeed on the basis of a procedural
fairness violation resulting from incompetent representation, the Applicant
must meet the requirements of the following tripartite test:
- The representative’s alleged acts or omissions constituted
incompetence;
- There was a miscarriage of justice in the sense that,
but for the alleged conduct, there is a reasonable probability that the
result of the original hearing would have been different; and
- The representative be given notice and a reasonable
opportunity to respond. See: Guadron v Canada (Citizenship and Immigration),
2014 FC 1092 at para 11; Pathinathar v Canada (Citizenship and
Immigration), 2013 FC 1225 at para 25; and Zdraviak v Canada
(Citizenship and Immigration), 2013 FC 640 at para 25.
[17]
In this matter, I am satisfied that items 1 and
3 of the tripartite test have been met. The only issue for serious
consideration is whether there is a reasonable probability that the result of
the original hearing would have been different had evidence been led on the BIOC.
[18]
A decision on an H&C application must
include an assessment of the BIOC affected by the decision. This includes
children outside Canada. The H&C Officer was aware that the Applicant had a
wife and child in China. The Officer found it anomalous that the submission
emphasized the ties of the Applicant to the family of his landlord in Toronto,
yet not mentioning those of his wife, child and parents in China, which she
thought would be stronger than those he had with the family of his landlord.
[19]
The humanitarian submissions made on behalf of
the Applicant made no mention whatsoever of his child’s situation. The Officer was
aware that the Applicant sent money back to China from his submissions that
stated “[f]rom time to time, Mr. Yang sends some
financial support to China to his wife and daughter.” There was no
evidence contained in the submissions before the H&C Officer corroborating that
money was sent to his wife and daughter. Also, no mention is made in the
H&C decision of any problems or hardships faced by his wife and child as no
evidence was presented to the Officer on this issue.
[20]
The Applicant has submitted additional evidence
in his Supplementary Application Record which is limited to the situation of
the child. In his February 2015 affidavit, the Applicant deposes to the
following evidence at paragraphs 32 to 34 in support of his claim that if he
had remained in China his daughter would not have been able to attend school
for lack of funding:
32. At no time was
I asked anything about my daughter, Jia Hui Yang, who was born on April 27,
2009 some 9 months before I left China. She is now five years old. If I had
remained in China, it would have been very difficult for me to send my child to
school based upon the income I was receiving in China. It may come as a
surprise to many people that China which has done so much to elevate the
standard of living for its citizens over the last 60 years does not enable all
children to attend school, but it is a fact.
33. If I were in
China, I would have to pay 800 to 1000 RMB each month to finance my child’s
school tuition. My income in China as a forklift operator was somewhere between
1000 to 2000 RMB per month. The cost of living in China is high in our area,
and to live decently we would require between 3000 – 5000 RMB.
34. I am advised
and verily believe that there are objective sources of country condition
information which verify that China does not enable all children throughout the
country to attend school at no cost to the parents. I am advised that the US
government DOS report for the calendar year 2013 states:
Education: Although the law provides
for nine years of compulsory education for children, in economically
disadvantaged rural areas many children did not attend school for the required
period; some never attended. Although public schools were not allowed to charge
tuition, faced with insufficient local and central government funding, many
schools continued to charge miscellaneous fees. Such fees and other
school-related expenses made it difficult for poorer families and some migrant
workers to send their children to school.
[21]
Because the Applicant seeks an extraordinary
remedy, he is required to put his best foot forward with the view of persuading
the Court that there is a reasonable probability that the result of the
original hearing would have been different had his representative introduced
evidence on the BIOC. Accordingly the Applicant is required to provide the
Court with the proposed evidence to establish a reasonable probability that the
result of the original hearing would have been different.
[22]
The evidence presented to the Court does not
meet that requirement. I would have expected affidavits or similar documents
from the Applicant’s spouse, their grandparents or his sister confirming the
perilous education circumstances of the Applicant’s daughter and their need for
his contributions as the only means to ensure she obtains her education.
Normally, one would also expect some form of documentation from the school in
the area where the daughter would be attending setting out fees and so forth
that could similarly corroborate the cost of education.
[23]
I also would have expected the Applicant to
provide documentation backing up his claim in the H&C submissions that he
was sending money from time to time to his wife and child in China. Records
exist for these transfers and they should have been placed in evidence. I say
this particularly in light of the very significant efforts made by the
Applicant’s lawyers to bring the procedural fairness argument forward with
extensive documentation in support in a case where lawyer competence is already
an issue.
[24]
I also note that the objective documentary
evidence does not support the Applicant’s claim that his daughter would not be
able to attend school for any part of the compulsory minimum of nine years
required in China. The US government DOS report indicates that “in economically disadvantaged rural areas,” and then
only “for the required period,” some children
are not attending school. The Applicant and his family live in Guangzhou,
formally known as Canton, which is one of China’s thriving economic megacities.
It is not a disadvantaged rural area in China. It would appear therefore, on
the Applicant’s own evidence, his daughter should be entitled to basic free
compulsory schooling for nine years.
[25]
The Court also notes that the Applicant’s
education record indicates that he attended at three levels of schools in
China, including a technical secondary senior high school. It is hard to imagine
that in modern China, his only child would not have access to the same
education as he did in light of his education and family circumstances.
[26]
Accordingly, I am not satisfied that the
Applicant has provided sufficient evidence to support his contention that there
exists a reasonable probability that the result of the original hearing would
have been different based on a submission that his daughter requires him to
remain in Canada as her only means to attend school.
B.
Failure to Provide a Passport
[27]
The Respondent acknowledges an error on the
Officer's part when she concluded that the Applicant failed to show that he had
made reasonable efforts to obtain a Chinese passport. She overlooked a letter
on the file that indicated attempts were being made to obtain the passport. Her
oversight led her to conclude that the Applicant had not demonstrated that the
situation of remaining in Canada was beyond his control. It would appear that
the Applicant's inability to leave Canada after leave was refused on his
refugee application was due to his inability to obtain a Chinese passport.
[28]
Apart from the error on this fact however, the
Officer’s assessment of the Applicant’s establishment was reasonable. She gave
favourable consideration to being able to meet his financial needs through
self-employment. However, the Officer also found that renting a room in someone
else’s home does not show any real establishment in Canada. Similarly, she
quite reasonably concluded that he had more ties to his family in China than
those in Canada. Altogether, she concluded that these factors did not warrant
an exemption.
[29]
I find little on the record that would contradict
the Officer’s conclusion that the Applicant would not suffer undue hardship if
he had to apply for permanent residence from outside Canada. I do not see how
an error on the Officer’s part with respect to the time spent in Canada under
his control could have much bearing on the decision. It is essentially a claim
of hardship based on living and working in Canada for four years with few other
ties to the country. There is no serious evidence that returning to the country
where he spent most of his life and where his family and relatives resides
would present a situation of hardship or be any different from when the
applicant left to come to Canada.
VII.
Conclusion
[30]
The application is therefore dismissed. No
question is certified for appeal.
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