Shao v. Canada (Citizenship and Immigration), 2024 FC 281 : Serious Criminality Finding Set Aside Where Officer Misapplied Foreign-Offence Equivalency Test

The Federal Court reviewed the refusal of Pingni Shao and Xian Zhang’s family-class PR application. The officer found Mr. Zhang inadmissible for serious criminality based on a Chinese embezzlement conviction and consequently found the principal applicant inadmissible as an accompanying family member. The Court granted judicial review because the officer unreasonably applied the legal test for determining whether the foreign conviction was equivalent to a Canadian theft offence.

Key Principle

When assessing whether a foreign conviction is equivalent to a Canadian criminal offence, the officer must compare the essential elements of the offences, including the required mental element. Where the Canadian offence depends on the accused’s subjective state of mind, the officer cannot replace that inquiry with an objective assessment of what a reasonable person would have believed.

Background

Mr. Zhang had been convicted of embezzlement under Chinese criminal law. During redetermination of the family-class PR application, IRCC advised the applicants that the foreign offence might correspond to theft under Canadian criminal law.

The applicants disputed the equivalency analysis, arguing that the foreign provisions did not contain the same essential elements and that Mr. Zhang’s subjective belief was relevant to whether the Canadian offence would have been established.

Court Findings

• Foreign-Offence Equivalency Required Proper Element Comparison

The officer was required to determine whether the conduct underlying the Chinese conviction corresponded to the essential elements of the Canadian offence. This analysis had to include both the prohibited conduct and the applicable mental element.

• Mens Rea Was Central to the Canadian Offence

The applicants argued that Mr. Zhang believed he was entitled to deal with the property in the manner alleged. Whether he genuinely held that belief was therefore relevant to determining whether the mental element of Canadian theft was established.

• Subjective Belief Was Replaced With an Objective Standard

The officer assessed whether a reasonable person would have held Mr. Zhang’s claimed belief. The Court found this approach improper because it did not answer the distinct question of whether Mr. Zhang himself genuinely held that belief.

• Equivalency Analysis Was Therefore Unreasonable

By constraining the mental-element analysis to objective reasonableness, the officer failed to properly apply the equivalency framework. The resulting serious criminality finding was not justified in relation to the legal requirements governing the Canadian offence.

• Principal Applicant’s Inadmissibility Depended on Flawed Finding

The principal applicant was found inadmissible because of her husband’s inadmissibility. Once the serious criminality determination concerning Mr. Zhang was undermined, the consequential inadmissibility finding against her could not stand independently.

• H&C Findings Did Not Need to Be Reviewed

The applicants also challenged the officer’s refusal to grant humanitarian and compassionate relief. Because the flawed equivalency analysis was sufficient to dispose of the application, the Court found it unnecessary to address the H&C determination.

Outcome

The Federal Court granted judicial review, set aside the refusal and inadmissibility findings, and returned the matter to a different officer for redetermination. No question was certified.

Case Citation:

Shao v. Canada (Citizenship and Immigration), 2024 FC 281 (CanLII)