By: Rizwan Ahmad Khan Gondal
Fangyun Li c Canada is a recent case which illustrates the importance of the application of the ‘best interests of the child’ principle in the context of an immigration case. In this case, the Immigration Appeal Division (‘IAD’) of the Immigration and Refugee Board of Canada could not justify not having considered the ‘best interests’ of the applicant’s unborn child in its issuing of Fangyun Li’s removal order from Canada. The IAD’s failure to justify was thus deemed sufficient to the granting of Mr. Li’s application for judicial review.
In 2002, Mr. Fangyun Li was a Chinese student who arrived in Canada on a ‘valid student permit’. [Para 6] Once in Canada, Mr. Li successfully undertook a ‘marriage of convenience’ [Para 7] and obtained the ‘permanent resident’ status in 2007. [Para 6] The ‘sham’ marriage, however, ended on December 8, 2008, but on January 21, 2012, Mr. Li entered into a ‘bona fide marriage’ with Ka Kei Tang, a ‘well-established’ [Para 11] Canadian Citizen. [Para 6] However, subsequently, as a result of a Canada Border Services Agency investigation under s 44(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 (‘IRPA’) into Mr. Li’s conduct, on June 12, 2012, the Immigration Division determined that Mr. Li was ‘inadmissible to Canada for misrepresentation’ because of his prior ‘sham’ marriage and issued a ‘removal order’. [Para 7] Upon appeal to the IAD, Mr. Li ‘conceded’ his inadmissibility to Canada under s40(1)(a) of the IRPA for misrepresentation, ‘but, submitted that he should, nonetheless, be allowed to remain in Canada on humanitarian and compassionate grounds’. [Para 8] The IAD, nonetheless, concentrated on the ‘serious of the misrepresentation’ and the applicant’s expression of ‘remorse’. [Para 10] The IAD determined that ‘the scheme orchestrated by the Applicant was serious, material, advertent and deliberate’ [Para 10] and the expression of remorse was not sufficient because the applicant was ‘not prepared to take full responsibility for his action by admitting his misrepresentation to all concerned’. [Para 10] Nonetheless, the IAD did admit that the Mr. Li and his family ‘would suffer hardship if he was removed from Canada’. [Para 11]
While the appeal was still continuing, on February 14, 2014, the applicant submitted ‘post-hearing evidence’ that Mr. Li’s ‘bona fide’ wife ‘was pregnant and expecting [the couple’s] first child on October 15, 2014’. [Para 12] The IAD, however, opined that ‘it could not give much weight to the pregnancy’ because, ‘until there is a live birth there are per se no best interests [of the child] to take into consideration’. [Para 12] Consequently, in its effort to maintain the ‘integrity of the immigration system’, the IAD held that ‘there should be consequences to one who commits misrepresentation’, as such, ‘the removal order was [held to be] valid in law and that there were insufficient humanitarian and compassionate considerations to merit special relief in light of all the circumstances of the matter’. [Para 13]
Mr. Li filed an application at the Federal Court in Ottawa for a ‘judicial review pursuant to subsection 72(1)’ of the IRPA seeking ‘special relief from the removal order based on humanitarian and compassionate grounds and the best interests of the child, pursuant to paragraph 67(1)(c) of the IRPA’. [Para 5]
The court decided that ‘paragraph 67(1)(c) of the IRPA specifically grants the IAD the power to conduct a humanitarian and compassionate analysis involving the best interests of a child… [including those of] an unborn child’. [Para 23] Furthermore, that ‘At the very least, the IAD should have considered the child’s best interests of being united in Canada with his/her family’ and since the IAD ‘did not even proceed to specify that it took into consideration the best interests of the child’, as such, ‘the IAD’s best interests of the child analysis, in and of itself, [was] unreasonable’. [Para 25]
Additionally, the court held that the IAD’s doubting of ‘the Applicant’s remorse without making any negative credibility findings against the Applicant’ was also ‘unreasonable’. [Para 32]
Although in Chieu v. Canada (Minister of Citizenship and Immigration),  1 S.C.R. 84, 2002 SCC 3, the Court applied the ‘correctness standard’ of review [Chieu, paras 22 and 24], the Court held that ‘it may well be that a more deferential standard would apply to decisions of the I.A.D. in other contexts’, particularly if the issue under review were to fall squarely within the specialized expertise of the board’. [Chieu, para 26]. To clarify the issue, the Court opined that ‘[t]the “pragmatic and functional” approach is employed to determine the proper standard of review in any given case’. [Chieu, para 21] In the case at bar, the court applied the ‘reasonableness standard’ of review based upon the Supreme Court reasoning in Canada (Citizenship and Immigration) v. Khosa 2009 SCC 12, [Para 20] where the court had held that ‘Reasonableness is a single standard that takes its colour from the context’. [Khosa, para 59]. The context in this case was the proper consideration of the ‘reasonable best interests of …[an] unborn child’. [Para 21] In reviewing an order under paragraph 67(1)(c) of the IRPA, the court thus held that the proper standard to be employed was that of ‘reasonableness’. [Para 20]
Curiously, in reaching its decision that ‘At the very least, the IAD should have considered the child’s best interests of being united in Canada with his/her family’, the court relied upon the reasoning in Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61,  3 SCR 909. [Para 25] That case, however, was analysed under section 25(1) of the IRPA and the standard of review in that case was held to be that of ‘correctness’. But obviously, logic would dictate that something which is not correct could also be termed as unreasonable.
Concerning the matter of remorse, the court confirmed that the applicant ‘was remorseful’, and he had shown his remorse by ‘volunteering [his] time with many hours each week to community service’. [Para 27] The IAD itself confirmed that the applicant ‘did express remorse and cooperated with the immigration authorities investigating his case’. [Para 28] Then what further was the applicant supposed to do? The court reasoned that the IAD’s doubting of the sincerity of the ‘Applicant’s remorse without making any negative credibility findings against the Applicant’, [Para 32] the IAD’s opinion that ‘an applicant can only demonstrate remorse if he or she tells his/her employer and his/her relatives of previous wrongdoing’, [Para 33] and the IAD’s failure to consider the legislative intent of ‘special relief’ under paragraph 67(1)(c) of the IRPA where the IAD could have excused the misrepresentation ‘in light of sufficient humanitarian and compassionate consideration’, [Para 34] were all unreasonable under the circumstances of the case. [Para 31]
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