PINGNI SHAO v. XIAN ZHANG, 2024 FC 281

Date: 20240221Docket: IMM-13224-22 Citation: 2024 FC 281Ottawa, Ontario, February 21, 2024PRESENT: The Honourable Madam Justice HeneghanBETWEEN: PINGNI SHAO AND XIAN ZHANGApplicants andTHE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS AND JUDGMENT [1] Ms. Pingni Shao (the "“Principal Applicant”") and her husband Mr. Xian Zhang (collectively "“the Applicants”") seek judicialreview of the decision of an immigration officer (the "“Officer”") refusing their application for permanent residence as members of thefamily class, co-sponsored by their daughter and son-in-law. [2] The Officer found Mr. Zhang inadmissible on grounds of serious criminality, pursuant to paragraph 36(1)(

b) of the Immigration andRefugee Protection Act, S.C. 2001, c. 27 (the "“Act”"). As a consequence of this inadmissibility finding, the Officer determined that thePrincipal Applicant is inadmissible pursuant to subsection 42(

a) of the Act. [3] The Officer also declined to grant relief on humanitarian and compassionate grounds, pursuant to subsection 25(1) of the Act. [4] Mr.

Zhang was convicted of embezzlement under Articles 25, 382 and 383 of the Criminal Law of the People’s Republic of China. [5] The initial application for permanent residence was refused on June 7, 2021 but following an application for leave and judicial reviewin cause number IMM-4083-21, the Minister of Citizenship and Immigration (the "“Respondent”") consented to a redetermination by adifferent officer. [6] The Officer sent the Principal Applicant a procedural fairness letter dated October 29, 2021, advising that she and her husband maybe inadmissible to Canada because the offence for which the conviction was entered in China would have been punishable undersubsection 322(1) of the Criminal Code of Canada, R.S.C. 1985, c.

C-46 (the "“Criminal Code”"), that is theft. [7] A second procedural letter, dated December 6, 2021, was sent after an error was identified in the first letter. [8] The Applicants responded, through Counsel, on February 4, 2022. In that response, they submitted that Articles 382 and 383 of theCriminal Law of the People’s Republic of China are not equivalent to subsection 322(1) of the Criminal Code.

They also asked for thepositive exercise of discretion on humanitarian and compassionate grounds. [9] The Applicants now argue that the Officer committed a reviewable error in following the equivalency analysis set out in Hill v.Canada (Minister of Employment and Immigration) (1987), 73 N.R. 315 (F.C.A.). They submit that the Officer did not identify theessential elements of the offence of embezzlement under the Chinese criminal law or determine if the evidence was sufficient to supportthe offence of theft in Canada.

In particular, the Applicants target the manner in which the Officer apparently overlooked the element ofmens rea and the relevance of Mr.

Zhang’s subjective belief. [10] The Applicants also argue that the decision is unreasonable because the Officer ignored contradictory evidence. [11] Finally, the Applicants submit that the Officer unreasonably dealt with their request for humanitarian and compassionate relief. [12] The Respondent argues that the Officer reasonably applied the equivalency test and otherwise committed no reviewable error. [13] The decision of the Officer is reviewable on the standard of reasonableness, following the decision in Canada (Minister ofCitizenship and Immigration) v.

Vavilov, 2019 SCC 65 , [2019] 4 S.C.R. 653 (S.C.C.). [14] In considering reasonableness, the Court is to ask if the decision under review "“bears the hallmarks of reasonableness –justification, transparency and intelligibility – and whether it is justified in relation to the relevant factual and legal constraints that bearon the decision”"; see Vavilov, supra, at paragraph 99. [15] I substantially agree with the submissions of the Applicants, that the Officer either improperly or unreasonably applied theequivalency test set out in Hill, supra. In my view, the Officer constrained the analysis of Mr.

Zhang’s claimed subjective belief towhether a reasonable person would have held that belief. The Officer failed to consider whether Mr. Zhang genuinely held that belief. [16] In my opinion, the decision fails to meet the test of reasonableness. It is not necessary for me to address the findings on the refusalto grant relief pursuant to subsection 25(1). [17] In the result, the application for judicial review will be allowed, the decision will be set aside and the matter will be remitted forredetermination by a different officer. There is no question for certification. JUDGMENT IN IMM-13224-22

JUDGMENT IN IMM-13224-22 THIS COURT’S JUDGMENT is that the application for judicial review is allowed, the decision is set aside and the matter is remitted for redetermination by a different office. There is not question for certification. "E. Heneghan" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-13224-22 STYLE OF CAUSE: PINGNI SHAO ET AL. v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: HELD BY WAY OF VIDEOCONFERENCE DATE OF HEARING: JANUARY 10, 2024 REASONS AND JUDGMENT: HENEGHAN J. DATED: FEBRUARY 21, 2024 APPEARANCES : Lucinda Wong For The Applicants Camille N.

Audain For The Respondent SOLICITORS OF RECORD : Caron & Partners LLP Barristers and Solicitors Calgary, Alberta For The Applicants Attorney General of Canada Edmonton, Alberta For The Respondent