Canada (Citizenship and Immigration) v. Liu, 2021 FC 306 : Federal Court Reviews IAD Decision Reopening Residency Obligation Appeal Based on Counsel Conduct and Later Medical Evidence

The Federal Court reviewed an Immigration Appeal Division decision allowing Ru Liu to reopen her appeal against a departure order issued for failing to meet the permanent resident residency obligation. The IAD relied on concerns about her former counsel’s conduct and medical evidence obtained two years after her original appeal was declared abandoned. The Minister sought judicial review. The Court granted the application because the IAD failed to apply the legal test for reopening an appeal under section 71 of IRPA and did not properly assess the contemporaneous medical evidence.

Key Principle

The Federal Court confirmed that the IAD may reopen an appeal under section 71 only where it is satisfied that a principle of natural justice was breached. Where alleged incompetence of counsel forms the basis for reopening, the conduct must rise to the level of a procedural fairness breach and the applicable legal test must be addressed. Later evidence cannot be used to criticize earlier counsel without considering what was actually known at the relevant time.

Background

Ms. Liu, a Chinese citizen, became a Canadian permanent resident in 2004. After living in China for three years, she returned to Canada in March 2017 and received a departure order for failing to satisfy the requirement of 730 days of physical presence within the relevant five-year period.

She appealed to the IAD but did not attend her September 2017 hearing. Her lawyer indicated that he understood she wished to abandon the appeal, and the IAD declared it abandoned.

In 2019, Ms. Liu sought to reopen the appeal, relying primarily on a psychiatric report prepared that year. The report concluded that she had likely experienced a severe depressive episode in September 2017 that impaired her ability to attend the hearing and understand the consequences of not attending. The IAD reopened the appeal, questioning whether her former counsel had acted diligently.

Court Findings

• IAD Failed to Apply the Section 71 Test

Section 71 required the IAD to determine whether a principle of natural justice had been breached. Although the IAD criticized former counsel, it never actually found that counsel was incompetent or that the conduct amounted to a breach of procedural fairness. It also failed to apply the established three-part test governing allegations of counsel incompetence.

• Later Medical Evidence Could Not Replace the 2017 Record

The IAD relied heavily on the 2019 psychiatric assessment but failed to address medical evidence available in 2017. Ms. Liu’s treating physician had recorded shortly before the hearing that she was coherent, had appropriate judgment, and had no suicidal ideation. Ignoring this contemporaneous evidence was a determinative error.

• Criticism of Former Counsel Was Not Justified

The Court found that the IAD effectively criticized counsel’s actions in 2017 using medical information that did not exist until 2019. It did not explain why counsel should have acted differently based on the information actually available at the time. The resulting reasoning was not justified against either the statutory framework or the evidentiary record.

Outcome

The Federal Court granted the Minister’s judicial review, set aside the decision reopening Ms. Liu’s appeal, and returned her reopening application to a different IAD member for reconsideration. No costs were awarded and no question of general importance was certified.

Case Citation:

Canada (Citizenship and Immigration) v. Liu, 2021 FC 306 (CanLII)