Ching v. Canada (Immigration, Refugees and Citizenship)

Ching v. Canada (Immigration, Refugees and Citizenship)
Court (s) Database
Federal Court Decisions
Date
2018-08-16
Neutral citation
2018 FC 839
File numbers
IMM-1531-17, IMM-4585-16
Decision Content
Date: 20180816
Dockets: IMM-4585-16
IMM-1531-17
Citation: 2018 FC 839
Toronto, Ontario, August 16, 2018
PRESENT: The Honourable Mr. Justice Diner
Docket: IMM-4585-16
BETWEEN:
MO YEUNG CHING
Applicant
and
THE MINISTER OF IMMIGRATION, REFUGEE AND CITIZENSHIP
Respondent
Docket: IMM-1531-17
AND BETWEEN:
MO YEUNG CHING
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
Table of Contents
I. Overview 2
II. Issues 5
III. Standard of Review 6
IV. Analysis 7
Issue 1: Is IMM-4585-16 moot? 7
(1) Background on mootness 8
(2) Parties’ arguments on mootness 9
(3) Analysis on mootness 10
Issue 2: Should the Applications be dismissed for prematurity? 11
(1) Background on prematurity 11
(2) Parties’ arguments on prematurity 12
(3) Analysis on prematurity 13
Issue 3: Should the Appeal be stayed for abuse of process arising from delay? 19
(1) Background on delay 19
(2) Parties’ arguments on delay 26
(3) Analysis on delay 28
Issue 4: Does MPSEP’s Appeal disclose an abuse of process as a result of the ID’s findings on evidence obtained by torture, and, if so, what is the appropriate remedy? 34
(1) Background on evidence allegedly obtained by torture 35
(2) Analysis on evidence allegedly obtained by torture 42
Issue 5: Should the IAD’s Refusal to Reconsider be set aside as either incorrect or unreasonable? 67
(1) “Splitting” the Appeal 67
(2) Reasonable Apprehension of Bias 71
V. Costs 74
VI. Certified Questions 74
VII. Conclusion 77
I.
Overview
[1] The Applicant, Mo Yeung Ching, a citizen of the People’s Republic of China, has brought two applications [Applications] before this Court under subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. The consolidated Applications challenge decisions issued by the Immigration Appeal Division [IAD] in 2016 and 2017 respectively, in the context of an appeal by the Minister of Public Safety and Emergency Preparedness [MPSEP] under subsection 63(5) of IRPA [Appeal], which remains ongoing.
[2] Mr. Ching’s case has a complex procedural history. He became a Canadian permanent resident in 1996. He applied for citizenship in 2001, which was never granted. Rather, as a result of criminal charges laid against him in China, he was convoked for inadmissibility hearings. In 2009, the Immigration Division [ID] of the Immigration and Refugee Board [IRB] concluded that Mr. Ching was not inadmissible for serious criminality, and that some of the evidence against him had been obtained by the torture of his associates in China [Admissibility Decision]. MPSEP appealed to the IAD of the IRB.
[3] In 2011, the IAD agreed with MPSEP, overturning the ID, and finding that Mr. Ching was inadmissible under IRPA’s paragraph 36(1)(c) for having entered into an arrangement with business associates in China to fraudulently obtain public funds [Inadmissibility Decision]. However, it did not address the ID’s findings on the impugned evidence. Notwithstanding the issuance of the Inadmissibility Decision, the Appeal remains ongoing, because the second stage remains outstanding under IRPA subsection 69(2), which permits Mr. Ching to make submissions on humanitarian and compassionate grounds [H&C].
[4] The member who decided the Inadmissibility Decision scheduled a hearing for the H&C component of the proceeding in April 2012, but shortly before the hearing, received an application for her recusal. The panel member, after a detailed analysis, found no basis for recusal [Recusal Decision]. However, she decided that given the “unusual circumstances in this case and particularly given the respondent [Mr. Ching] did not testify”, the H&C hearing would proceed before a different member of the IAD.
[5] Mr. Ching also filed a refugee claim in April 2012. In relation to the outstanding criminal charges in China for his alleged economic fraud and embezzlement, the Refugee Protection Division [RPD] rejected the claim under section 98 of IRPA [RPD Decision]. Mr. Ching challenged the RPD Decision to the Federal Court, represented by David Matas. Justice Roy, in a strongly worded judgment, sent the RPD Decision back for redetermination, on the basis of insufficient evidence (Ching v Canada (Citizenship and Immigration), 2015 FC 860 [Ching]).
[6] On September 11, 2015, Mr. Ching asked the IAD to reconsider its Inadmissibility Decision, based largely on Justice Roy’s decision in Ching. On October 19, 2016, the IAD refused to determine Mr. Ching’s reconsideration application at that time [Refusal to Entertain], because the matter was in abeyance pending the outcome of Mr. Ching’s refugee claim. Mr. Ching subsequently sought judicial review of the Refusal to Entertain, which is under review in the first of the two Applications before me today (IMM‑4585‑16).
[7] In spite of its initial Refusal to Entertain Mr. Ching’s reconsideration application, the IAD nonetheless proceeded to hear submissions on Mr. Ching’s reconsideration request some four months later. Then, in a decision of March 10, 2017, the IAD refused to reconsider the Inadmissibility Decision [Refusal to Reconsider]. Mr. Ching again sought judicial review (IMM‑1511‑17). He received leave for both Applications, which were also consolidated. While Lawrence Wong filed some of the initial materials in these Applications, Rocco Galati provided the supporting written materials, and made oral submissions on behalf of Mr. Ching.
[8] Although Mr. Ching has raised several issues in these Applications, he has only persuaded me on one: that the IAD’s Inadmissibility Decision discloses an abuse of process. In my view, the IAD had a duty to deal with and make findings on those portions of the evidence found by the ID to have been obtained through the torture of Mr. Ching’s associates. The IAD failed in that duty, leaving doubt as to whether evidence allegedly obtained by torture impacted its decision.
[9] But Mr. Ching has not persuaded me that a stay of the Appeal is warranted. Rather, a lesser remedy can ensure the integrity of the IAD’s administrative process, while still allowing the serious allegations against Mr. Ching to be adjudicated. As a result, and for the reasons that follow, I am ordering that the IAD decisions issued thus far in the Appeal be set aside, and that the Appeal be remitted for determination anew before a different member of the IAD.
II. Issues
[10] The issues raised in these two Applications are as follows:
Should IMM‑4585‑16 (which challenges the IAD’s Refusal to Entertain) be dismissed for mootness?
Should both the Applications be dismissed for prematurity?
Does the delay in concluding the Appeal amount to an abuse of process warranting a stay of proceedings?
Does the Appeal disclose an abuse of process arising from the ID’s findings on evidence obtained by torture, and, if so, what is the appropriate remedy?
Should the IAD’s Refusal to Reconsider be set aside as either incorrect or unreasonable?
[11] I will address these issues in turn. I would note, however, that the parties’ arguments have evolved and were refined considerably as these Applications unfolded. Further, Mr. Ching has had the three highly experienced counsel mentioned (Messrs Wong, Galati and Matas) act for him at various points within the web of proceedings outlined above; his positions have not always been consistent, which may be part and parcel of that reality. As a result, I will endeavour, where necessary, to indicate at what stage of the proceedings arguments were made. Before commencing my analysis, however, I will set out the standard under which each of the five issues will be reviewed.
III. Standard of Review
[12] The question of standard of review does not arise for issues 1 and 2.
[13] Issues 3 and 4 relate to the doctrine of abuse of process, which can be characterized as an aspect of procedural fairness attracting a correctness standard (Shen v Canada (Citizenship and Immigration), 2016 FC 70 at para 29 [Shen 2016]; Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at para 54 [Canadian Pacific]). I note that, in these Applications, the Court is not reviewing the IAD’s own analysis of abuse of process (see, for instance, Shen 2016 at para 29), but must rather determine at first-instance whether the impugned state conduct in the Appeal amounts to an abuse of process.
[14] With respect to issue 5, insofar as the reasonableness of the IAD’s Refusal to Reconsider is challenged, the standard is that set out in Dunsmuir v New Brunswick, 2008 SCC 9 (at para 47). Mr. Ching has also raised allegations of bias with respect to the IAD member who issued that decision, which is an issue reviewable on a correctness standard (Joshi v Canadian Imperial Bank of Commerce, 2015 FCA 92 at para 6, citing Mission Institute v Khela, 2014 SCC 24 at para 79).
IV. Analysis
Issue 1: Is IMM‑4585‑16 moot?
[15] The first issue before me is whether the first of the two consolidated Applications — namely, file number IMM‑4585‑16 — should be dismissed for mootness. It will be recalled that, in the Refusal to Entertain (the decision challenged in IMM‑4585‑16), the IAD refused to entertain Mr. Ching’s reconsideration request at that time. The Respondent submits that, because Mr. Ching’s reconsideration application was ultimately determined by the IAD in the Refusal to Reconsider (under review in IMM‑1531‑17), IMM‑4585‑16 no longer raises a live controversy and is therefore moot.
[16] However, for the reasons that follow, I have concluded that not all issues raised in IMM‑4585‑16 are moot.
(1) Background on mootness
[17] In his September 11, 2015 reconsideration application, Mr. Ching argued that since Justice Roy had found in Ching that there had been insufficient evidence before the RPD for its conclusion, the evidence before the IAD in 2011 likewise could not support a finding of inadmissibility. This reconsideration application was opposed by MPSEP on the basis that the Appeal was, at that time, being held in abeyance, and that Ching had no bearing on the merits of the IAD’s Inadmissibility Decision.
[18] On April 12, 2016, Mr. Ching’s counsel applied to the Commission for the Control of INTERPOL’s Files [Commission], requesting that Mr. Ching be removed from the list of wanted persons in the INTERPOL database, enclosing the Ching decision.
[19] Mr. Ching received a letter from the Commission dated August 26, 2016, stating that:
After a careful study of all the elements in its possession, the Commission concluded that the data registered in INTERPOL’s files concerning Mr Mo Yueng Ching was not compliant with INTERPOL’s rules. Consequently, the Commission recommended that INTERPOL delete the data concerned.
Following the Commission’s recommendation, this data was deleted from INTERPOL’s files on 23 August 2016.
[20] An accompanying letter from INTERPOL’s General Secretariat certified that Mr. Ching was not known in INTERPOL’s database and was not subject to an INTERPOL Red Notice or diffusion. This information was relayed to the IAD in connection with Mr. Ching’s reconsideration request.
[21] On October 19, 2016, the IAD issued its Refusal to Entertain, stating that it would be “inappropriate” to determine whether or not to reconsider the Inadmissibility Decision at that time. Mr. Ching then commenced IMM‑4585‑16, the first of the two Applications before me today. Abuse of process was raised in his leave memorandum, and he asked that the Appeal be stayed (although, this was not raised in his notice of application, which was filed by different counsel).
[22] Mr. Ching’s reconsideration application was subsequently determined by the IAD in its decision dated March 10, 2017 (which is the Refusal to Reconsider under review in IMM‑1531‑17) prior to the disposition of IMM‑4585‑16.
(2) Parties’ arguments on mootness
[23] In its further memorandum, the Respondent argued that Mr. Ching’s first judicial review application (IMM‑4585‑16) should be dismissed for mootness because Mr. Ching’s reconsideration application had been determined by the IAD. The Respondent submitted that, as a result, the controversy arising from the IAD’s Refusal to Entertain was no longer live, relying on Borowski v Canada (Attorney General), [1989] 1 SCR 342 [Borowski].
[24] At the hearing of these Applications, Mr. Ching contended that IMM‑4585‑16 was not moot, given that the issue of abuse of process it raised was still live, and that the relief sought in it and its underlying record were “rolled into” file number IMM‑1531‑17. The Respondent argued that if the remedy sought in IMM‑4585‑16 had been rolled into IMM‑1531‑17, then the former should still be dismissed.
(3) Analysis on mootness
[25] An issue is “moot” when, as a result of changed circumstances, its disposition will have no practical effect on the parties (Borowski at 353). The two-step Borowski test was summarized in Harvan v Canada (Citizenship and Immigration), 2015 FC 1026 (at para 7) as follows: (a) is the matter moot — i.e., would a decision have any practical effect on solving a live controversy between the parties? and (b) if the matter is moot, should the Court nevertheless exercise its discretion to hear the case?
[26] I agree with the Respondent that IMM‑4585‑16 itself no longer raises a live controversy with respect to certain of the relief sought, because the IAD’s Refusal to Reconsider subsequently disposed of Mr. Ching’s reconsideration application.
[27] However, I also agree with Mr. Ching that the abuse of process arguments and attendant relief sought in IMM‑4585‑16 were not rendered moot by the issuance of the Refusal to Reconsider, and therefore remain live. As a result, I decline to dismiss IMM‑4585‑16 for mootness.
[28] Further, although the Applications seek the same primary relief — namely, a declaration of abuse of process and a stay of the Appeal — and are, to some extent, duplicative, the parties have relied on the consolidated record in arguing the Applications. I will thus simply provide one remedy with respect to both Applications.
Issue 2: Should the Applications be dismissed for prematurity?
[29] The second issue for determination is whether the Applications are premature. The Respondent has argued that the Applications should be dismissed on the basis that the Appeal is still ongoing at the IAD, and may ultimately be decided in Mr. Ching’s favour following the IAD’s H&C determination.
[30] Although I agree with the Respondent that an applicant may not ordinarily seek judicial review of an interlocutory administrative decision, I nevertheless find that it is necessary for the Court to hear and determine Mr. Ching’s abuse of process arguments at this stage of the IAD’s proceedings.
(1) Background on prematurity
[31] MPSEP commenced the Appeal by notice of appeal dated June 1, 2009, under subsection 63(5) of IRPA, which provides as follows:
Right of appeal — Minister
63(5) The Minister may appeal to the Immigration Appeal Division against a decision of the Immigration Division in an admissibility hearing.
Appel du ministre
63(5) Le ministre peut interjeter appel de la décision de la Section de l’immigration rendue dans le cadre de l’enquête.
[32] The IAD’s Inadmissibility Decision was issued on December 21, 2011, finding Mr. Ching to be inadmissible under paragraph 36(1)(c) of IRPA. The IAD also directed its Registrar to schedule a hearing for submissions and evidence with respect to the IAD’s jurisdiction under subsection 69(2) of IRPA, which provides as follows:
Minister’s Appeal
69(2) In the case of an appeal by the Minister respecting a permanent resident or a protected person, other than a person referred to in subsection 64(1), if the Immigration Appeal Division is satisfied that, taking into account the best interests of a child directly affected by the decision, sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case, it may make and may stay the applicable removal order, or dismiss the appeal, despite being satisfied of a matter set out in paragraph 67(1)(a) or (b).
[Emphasis added]
Droit d’appel du ministre
69(2) L’appel du ministre contre un résident permanent ou une personne protégée non visée par le paragraphe 64(1) peut être rejeté ou la mesure de renvoi applicable, assortie d’un sursis, peut être prise, même si les motifs visés aux alinéas 67(1)a) ou b) sont établis, sur preuve qu’il y a — compte tenu de l’intérêt supérieur de l’enfant directement touché — des motifs d’ordre humanitaire justifiant, vu les autres circonstances de l’affaire, la prise de mesures spéciales.
[Non souligné dans l’original.]
[33] The parties to the Appeal have not yet made H&C submissions to the IAD; thus the Appeal remains ongoing.
(2) Parties’ arguments on prematurity
[34] In its memorandum opposing leave, the Respondent argued that IMM‑4585‑16 was premature because the IAD has not yet rendered a final decision in the Appeal. The Respondent relied on the Federal Court of Appeal’s holdings in various cases, including Canada (Border Services Agency) v CB Powell Limited, 2010 FCA 61 at paras 33, 39-46, and 51 [CB Powell]. The Respondent submitted that it was still possible for the IAD to rule in Mr. Ching’s favour, and that, if the IAD did not do so, it would be open to Mr. Ching to judicially review the IAD’s final decision.
[35] Mr. Ching relied on United States of America v Cobb, 2001 SCC 19 [Cobb], for the proposition that abuse of process must be “nipped in the bud”, and thus may be raised prior to the completion of a proceeding. Furthermore, at the hearing, Mr. Galati took issue with the Respondent’s position that a positive outcome was still potentially open to Mr. Ching.
(3) Analysis on prematurity
[36] Generally, administrative law shields interlocutory decisions from judicial review. A summary of the relevant principles was recently provided in Canada (Public Safety and Emergency Preparedness) v Shen, 2018 FC 636 [Shen 2018]:
[49] As the Federal Court of Appeal has observed, there is a substantial body of case law forbidding this Court from hearing premature matters on judicial review: Forest Ethics Advocacy Association v. Canada (National Energy Board), 2014 FCA 245, [2015] 4 F.C.R. 75. The Court went on in Forest Ethics to state that Courts “can and almost always should refuse to hear a premature judicial review on its own motion in the public interest – specifically, the interests of sound administration and respect for the jurisdiction of an administrative decision-maker”: at para. 22. See also C.B. Powell, above at para. 30.
[50] There are a number of reasons why courts are reluctant to intervene in interlocutory rulings made by administrative tribunals, including the potential fragmentation of the administrative process, and the accompanying costs and delays. There is, moreover, always the possibility that the Board may end up modifying its original ruling as the hearing unfolds, or that the issue may ultimately be overtaken or become moot if the applicant for judicial review succeeds at the end of the administrative process: C.B. Powell, above at para. 32; Mcdowell v. Automatic Princess Holdings, LLC, 2017 FCA 126 at para. 26, [2017] F.C.J. No. 621.
[51] Moreover, as the Federal Court of Appeal observed in C.B. Powell, it is only at the end of an administrative process that a reviewing court will have all of the administrative decision-maker’s findings, conclusions that “may be suffused with expertise, legitimate policy judgments and valuable regulatory experience”: above at para. 32. Refusing to intervene prior to there being a final decision in a given case is, moreover, consistent with the concept of judicial respect for administrative decision‑makers who have decision-making responsibilities to discharge: C.B. Powell, above at para. 32, citing Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190 at para. 48, [2008] 1 S.C.R. 190.
[37] CB Powell limited the scope of “exceptional circumstances” such that “concerns about procedural fairness or bias, the presence of an important legal or constitutional issue, or the fact that all parties have consented to early recourse to the courts are not exceptional circumstances allowing parties to bypass an administrative process, as long as that process allows the issues to be raised and an effective remedy to be granted” (at para 33).
[38] Also relevant to my analysis is Omobude v Canada (Citizenship and Immigration), 2015 FC 602 [Omobude], in which the IAD had, like in this matter, found the applicant to be inadmissible but had yet to make a finding on H&C grounds. On judicial review, the respondent in Omobude argued that the application was premature, since the IAD’s decision was an interlocutory one.
[39] Justice Bédard agreed with the respondent, holding that interlocutory decisions cannot be submitted for judicial review before all internal remedies have been exhausted, and if the applicant was dissatisfied with the end result after the H&C, the final IAD decision could be judicially reviewed (at paras 19, 22-24). Justice Bédard’s conclusions in Omobude echo the Respondent’s arguments in this case.
[40] I am satisfied that, at the conclusion of the subsection 69(2) hearing, the IAD may either issue a removal order and stay it, or dismiss the Appeal altogether, even in light of its findings on Mr. Ching’s inadmissibility. Thus, I agree that the decisions under review in the Applications (as well as the IAD’s Inadmissibility Decision) are interlocutory. This means that, absent exceptional circumstances, Mr. Ching cannot challenge them before this Court.
[41] The distinguishing feature between this case and Omobude is that Mr. Ching’s Applications are grounded in the doctrine of abuse of process. However, raising abuse of process does not automatically justify judicial review of an interlocutory decision. The Federal Court of Appeal held in Canada (National Revenue) v JP Morgan Asset Management (Canada) Inc, 2013 FCA 250 [JP Morgan] that even when it comes to abuse of process arguments, a party may still have to wait until the end of an administrative process to seek relief in this Court, consistent with CB Powell:
[89] In the tax context, to the extent that the Minister has engaged in reprehensible conduct that is beyond the reach of the Tax Court’s powers, adequate and effective recourses may be available by means other than an application for judicial review in the Federal Court. For example, breaches of agreements, careless, malicious or fraudulent actions, inexcusable delay, and abuses of process may be redressed by way of actions for breach of contract, regulatory negligence, negligent misrepresentation, fraud, abuse of process, or misfeasance in public office. Whether these actually constitute adequate, effective recourses depends upon the circumstances of the particular case.
[Citations omitted.]
[42] As noted in JP Morgan, whether effective alternative relief is available depends on the circumstances of the particular case. In Almrei v Canada (Citizenship and Immigration), 2014 FC 1002 [Almrei], Justice Mosley cited several examples where this Court has allowed parties to raise abuse of process in the immigration context at an early stage:
[38] In Tursunbayev, Justice Russell held that the applicant could bring abuse of process arguments at an early stage of the admissibility process, notwithstanding that a decision had not been made regarding his admissibility or deportation. This was in the context of disclosure issues over what was alleged to be a disguised extradition to accommodate the enforcement interests of a foreign jurisdiction.
[39] In Kanagaratnam, Justice Manson granted an interim stay preventing the Delegate from deciding the applicant’s application until the judicial review seeking a declaration that the proceedings amounted to an abuse of process was heard. In doing so, Justice Manson rejected the respondents’ arguments on prematurity and the availability of judicial review after the Delegate rendered a decision.
[40] Justice Phelan granted a stay of proceedings in the middle of a judicial review hearing in the John Doe matter, above, finding that the process may have been abusive. The decision under review was arguably interlocutory, he found, but fundamental to the case.
[43] The issue of adequate alternative remedy was also considered by Justice Fothergill in Shen 2016. There, the applicant sought judicial review of an interlocutory RPD decision which had dismissed the applicant’s motions for (a) an order excluding evidence from Chinese authorities on the ground that it was obtained by torture, and (b) an order preventing MPSEP from intervening in the applicant’s refugee claim, on the ground that it had breached its duty of candour, amounting to an abuse of process.
[44] The respondent in Shen 2016 argued that the application was premature. While agreeing with the respondent on certain points (see paras 23-24), Justice Fothergill followed JP Morgan in finding that the adequacy of effective recourse depends upon the circumstances of each case, and that the possibility of a judicial review of any final decision was not an effective remedy, concluding as follows:
[27] The Federal Court of Appeal held in Canada (Minister of National Revenue) v JP Morgan Asset Management (Canada) Inc., 2013 FCA 250 at para 89 that even if an abuse of process is present, premature intervention by way of judicial review will be unwarranted so long as an adequate alternative remedy exists. The adequacy of effective recourse depends upon the circumstances of each case. Here, I am not satisfied that the possibility of judicial review of the RPD’s final decision provides an effective remedy.
[28] The Supreme Court of Canada held in Behn v Moulton Contracting Ltd., 2013 SCC 26 at para 40, [2013] 2 SCR 227 that the doctrine of abuse of process is characterized by its flexibility and is unencumbered by specific requirements. The doctrine evokes the public interest in a fair and just process and the proper administration of justice. In the unusual circumstances of this case, permitting the proceedings to continue without a proper enquiry into whether the duty of candour was breached or an abuse of process has occurred may harm the integrity of the RPD’s proceedings, and may ultimately bring the administration of justice into disrepute.
[45] I turn now to Mr. Ching’s reliance on the Supreme Court’s holding in Cobb, which was a focus of his counsel’s submissions. Cobb was an appeal from a decision of the Ontario Court of Appeal, which had overturned a judge’s decision to stay, as an abuse of process, the extradition proceedings before him. There, the abuse of process arguments were based on certain reprehensible comments made by an American judge and prosecuting attorney, who had suggested that uncooperative fugitives would receive the “absolute maximum jail sentence” and be subject to homosexual rape in prison, respectively.
[46] In Cobb, partly at issue was the Ontario Court of Appeal’s finding that the extradition judge ought to have waited until “after the executive ha[d] made the decision to surrender the fugitive to the requesting state” ([1999] OJ No 3278 at para 7). The Supreme Court disagreed on appeal, holding that the appellants’ abuse of process arguments raised concerns to be properly addressed by the extradition judge, and that the existence of potential remedies from the executive did not oust the extradition judge’s jurisdiction to preserve the integrity of court proceedings (Cobb at para 48).
[47] Cobb is distinguishable for various reasons, including that Mr. Ching’s is not an extradition matter. However, I find that the principles articulated in Cobb are relevant. In other words, this Court is charged with protecting the integrity of the proceedings to which Mr. Ching is subject. This is, in my view, consistent with the Federal Court’s jurisprudence outlined above, including Almrei and Shen 2016.
[48] I note that, generally, this Court should consider six factors in determining whether to dismiss an application for prematurity: (1) hardship to the applicant, (2) waste, (3) delay, (4) fragmentation, (5) strength of the case, and (6) statutory context (Air Canada v Lorenz, [2000] 1 FC 494). I am alive to the reality that waste and delay weigh against determining Mr. Ching’s Applications, and favour permitting the Appeal to reach its conclusion (see Shen 2018 at para 56). However, it has been argued before me that this Court’s intervention is required to remedy an abuse of process by MPSEP and the IAD itself (see Shen 2018 at para 58). I am thus satisfied that, as in Shen 2016, a proper enquiry into Mr. Ching’s abuse of process arguments is necessary at this stage, such that judicial review at the end of the Appeal would not be an adequate remedy.
[49] In conclusion, I find that Mr. Ching’s Applications — insofar as they raise abuse of process — are not premature.
Issue 3: Should the Appeal be stayed for abuse of process arising from delay?
[50] The third issue to be decided is whether the Appeal should be permanently stayed as a result of abuse of process arising from delay. The Appeal was commenced in 2009 and has yet to be concluded. Mr. Ching contends that this delay has been over his objection and that it has caused him prejudice, such that it amounts to an abuse of process. For the reasons that follow, I have concluded that Mr. Ching’s arguments are factually unsubstantiated.
(1) Background on delay
[51] Mr. Ching did not swear an affidavit in support of his Applications, which is curious, given the serious issues raised. Instead, he relied on two affidavits of Amina Sherazee, a lawyer in Mr. Galati’s office, sworn January 31, 2017 and May 1, 2017 respectively.
[52] In her January 31, 2017 affidavit, Ms. Sherazee deposed that (a) Mr. Ching was born in China in 1969 and became a permanent resident of Canada in 1996, (b) he applied for Canadian citizenship in 2001, abandoned this application, and applied again in 2005, and (c) in 2006, he applied to the Federal Court, in a proceeding bearing the file number T‑1508‑06, for an order of mandamus under sections 18 and 18.1 of the Federal Courts Act, RSC, 1985, C F-7, requiring his citizenship application to be processed. I have reviewed the order issued in that proceeding, made on consent, which directed the Minister of Citizenship and Immigration [MCI] to make best efforts to complete the processing of Mr. Ching’s citizenship application on or before August 1, 2007.
[53] For its part in these Applications, the Respondent relied on three affidavits of Randal Hyland, counsel to MPSEP, affirmed March 6, 2017, May 2, 2017, and December 14, 2017. In summarizing the history of these proceedings, given that the Certified Tribunal Record [CTR] spans over 3,500 pages, I am indebted to the timeline prepared by the Respondent in its materials.
[54] In his first affidavit, Mr. Hyland deposed that, in 1996 and 2001, INTERPOL Red Notices were issued against Mr. Ching, as it was alleged that he was involved in an embezzlement scheme with two associates in China.
[55] What transpired between 2001 and 2008 is the subject of some controversy, and ultimately immaterial to whether the administrative delay in completing the Appeal amounts to an abuse of process. Nevertheless, I will summarize some of what is stated in Ms. Sherazee’s January 31, 2017 affidavit.
[56] Ms. Sherazee deposed that (a) citizenship officials knowingly kept Mr. Ching in the dark about the delay in his citizenship application, (b) China INTERPOL issued a warrant for Mr. Ching’s arrest in 2001, after obtaining information by torture from his associates in China, (c) a “corrupt” Chinese court had, in July 2002, convicted Mr. Ching’s associates based on evidence obtained by torture, (d) in August 2002, a Canadian immigration official had given Mr. Ching “immigration clearance” on his first citizenship application, (e) between 2001 and 2004, Chinese police had contacted Canada’s RCMP Liaison Office in Beijing, which supplied them with information about Mr. Ching, and (f) in December 2004, the Chinese police requested that the RCMP Liaison Office assist in preventing Mr. Ching from acquiring Canadian nationality, following which his citizenship application was delayed by Canadian immigration officials.
[57] An IRPA subsection 44(1) report was issued in March 2008, reporting that Mr. Ching was inadmissible under IRPA paragraph 36(1)(c) for serious criminality. The ID conducted its admissibility hearing over the course of a number of sittings later that year and in 2009, and then issued its Admissibility Decision on May 5, 2009, determining that Mr. Ching was not inadmissible.
[58] MPSEP filed its notice of appeal to the IAD on June 1, 2009. The IAD held pre-hearing conferences on February 5, 2010 and March 2, 2010 to discuss timelines for the Appeal. Ms. Sherazee deposed in her January 31, 2017 affidavit that Mr. Wong indicated, during the February 5, 2010 conference, his intention to pursue an abuse of process motion on Mr. Ching’s behalf before the IAD. According to the evidence in Mr. Hyland’s first affidavit, the parties agreed in or around that time that the IAD would first hear and decide the issue of admissibility and abuse of process, and then hear evidence and submissions on the matter of special relief under IRPA subsection 69(2).
[59] Mr. Ching then applied to have the Appeal continue as a private proceeding on May 26, 2010, which was opposed by MPSEP, but later granted by the IAD during hearings held in June 2010. Mr. Ching then submitted argument on the issue of abuse of process by letter dated July 20, 2010. On July 26, 2010, the IAD asked for further submissions on its jurisdiction to hear Mr. Ching’s abuse of process arguments, which Mr. Ching submitted on September 1, 2010.
[60] Further hearing days were held on December 6 and 7, 2010, and on March 16, 2011. On December 21, 2011, the IAD issued its Inadmissibility Decision, finding that (a) it did not have jurisdiction to consider Mr. Ching’s abuse of process arguments, and (b) Mr. Ching was inadmissible. The IAD directed its Registrar to schedule the H&C portion of the Appeal. Mr. Ching did not seek judicial review of the Inadmissibility Decision.
[61] On February 21, 2012, the IAD issued a peremptory notice to appear for a resumption of Mr. Ching’s hearing for the special relief (H&C) component on April 18, 2012. On April 13, 2012, Mr. Wong requested that the member recuse herself for bias, and, in the alternative, that the H&C portion of the Appeal be heard by a different member.
[62] On April 17, 2012, Mr. Ching commenced an action in the Federal Court (file number T‑793‑12) against the IAD member, MCI, and the Attorney General of Canada, pleading that, among other things, the defendants had intentionally “abused process, exceeded authority and jurisdiction, engaged in public misfeasance, [and] conspired against” Mr. Ching (there was a subsequent motion to strike the Statement of Claim, resulting in its amendment on consent).
[63] On April 18, 2012, the IAD heard recusal submissions. Shortly after, Mr. Ching filed a claim for refugee protection to the RPD. Then, on December 24, 2012, the IAD dismissed Mr. Ching’s recusal application. However, in this Recusal Decision, the IAD ordered that the H&C portion of the Appeal be heard by a different member of the IAD, as requested by Mr. Ching in the alternative. Then, in an application bearing the file number IMM‑588‑13, Mr. Ching sought leave to judicially review the Recusal Decision. Leave, however, was dismissed.
[64] On January 24, 2013, MPSEP made an application to the IAD, requesting that Mr. Wong be ordered to withdraw or recuse himself from the Appeal. Mr. Ching replied in February 2013, and further submissions came from MPSEP in June 2013. By decision dated July 18, 2013, a Case Management Officer of the IAD rejected MPSEP’s request, and advised that the H&C portion of the Appeal would be scheduled.
[65] An IAD “Scheduling Memo” in the CTR indicates that, on July 23, 2013, the IAD contacted Mr. Wong, who advised that he “needed to know when the RPD hearing was going to go ahead”. On July 25, 2013, an IAD Case Management Officer sought directions from the Assistant Deputy Chair [ADC] of the IAD, writing “Cnsl does not want to schedule IAD hearing until he knows when the RPD hearing will be heard. He is under the impression that the RPD hearing has to preceed the IAD one” [sic]. On July 26, 2013, the ADC of the IAD ordered that “[t]he resumption of the IAD hearing should not occur before the completion of the RPD hearing and decision of the RPD”.
[66] The RPD hearing was held in four sittings in February and March of 2014. On February 12, 2014, counsel for MPSEP wrote to the IAD, advising that a removal order had not yet been issued in MPSEP’s Appeal, and asking that one be issued against Mr. Ching pursuant to the Inadmissibility Decision. The ADC denied this request on February 12, 2014, advising that MPSEP’s Appeal would continue to be held in abeyance pending the completion of the RPD proceeding. During subsequent scheduled status reviews of the matter in April and September 2014, the IAD continued to look into the status of the RPD proceeding.
[67] On October 31, 2014, the RPD found Mr. Ching to be excluded under section 98 of IRPA [RPD Decision]. The RPD Decision was received by the IAD on November 4, 2014, and the next day, the ADC ordered that the Appeal be scheduled for resumption. By letter dated November 7, 2014, Mr. Hyland also requested that the Appeal be resumed, in light of the release of the RPD Decision. However, by letter dated November 24, 2014, Mr. Wong advised that Mr. Ching had sought leave to judicially review the RPD Decision, in an application bearing the file number IMM‑7849‑14, and asked that the Appeal continue to be held in abeyance until the RPD matter was finally decided. By letter submitted the next day, Mr. Hyland argued that the Appeal should be resumed as soon as possible, given that it had been adjourned since April 2012. By letter dated January 30, 2015, a Case Management Officer advised the parties that the Appeal would be scheduled for a hearing.
[68] An IAD “Scheduling Memo” in the CTR indicates that, in February and March 2015, Mr. Wong was not amenable to scheduling a resumption, as he intended to bring an application to “look into the admissibility” of Mr. Ching. Leave was granted in IMM‑7849‑14 on March 26, 2015. On April 21, 2015, Mr. Wong requested that the IAD postpone the resumption of the Appeal until the final disposition of Mr. Ching’s refugee claim and further argued that the H&C portion should only be heard once discoveries were complete in Mr. Ching’s civil action (in the alternative, he requested that seven days be set aside for the H&C portion). Further postponement was opposed by MPSEP on April 29, 2015. On June 12, 2015, the IAD ordered that the Appeal would proceed, and a pre-hearing conference was scheduled for September 24, 2015.
[69] However, on July 15, 2015, Justice Roy allowed Mr. Ching’s judicial review of the RPD Decision, and ordered that the matter be set aside and remitted for redetermination. As a result, on August 18, 2015, the IAD again ordered that the Appeal would again be held in abeyance.
[70] On September 11, 2015, Mr. Ching applied to the IAD to reconsider the Inadmissibility Decision, which MPSEP opposed. On October 17, 2016, Mr. Ching commenced an application in the Federal Court (IMM‑4322‑16) seeking an order of mandamus compelling the IAD to decide his reconsideration application. This judicial review was discontinued on November 21, 2016. Mr. Ching next commenced IMM‑458