Date: 20020515
Docket: IMM-4009-01
Neutral citation: 2002 FCT 570
BETWEEN:
TRUONG NHU TRUONG
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
[1] In this application for judicial review the unusual circumstances of the decision in issue, communicated to the applicant by a letter dated January 3, 2001, in my opinion, warrant reconsideration of the applicant's application for permanent residence from within Canada on humanitarian and compassionate (h & c) grounds.
[2] There is no dispute about the basic facts of the applicant's background, or about the manner in which the decision was made in regard to his h & c application.
[3] The applicant left Vietnam as a refugee in 1985 and was admitted to Canada as a landed immigrant in 1986, when he was about 16 years of age. He was convicted and sentenced for robbery and for possession of stolen property. As a result of his conviction he was ordered deported in 1993. Released on parole, he was again in trouble with the law. When finally released from prison he was detained by immigration authorities for over two years, from November 1994.
[4] The deportation order issued against him in 1993 was appealed, but his appeal was declared abandoned in December 1994 when he did not appear. He claims to have had no notice of the hearing even though at the time he was held in detention by immigration authorities.
[5] In 1997 the applicant and his wife, who had first met in 1993 and who had a child born in 1994, commenced living together in a continuing relationship and in December 1998, they were married. A second child was born to the applicant and his wife in January 1999. In December 1999 the application for permanent residence in Canada was submitted by the applicant with his wife's sponsorship. They were invited to an interview on April 11, 2000. At that time the applicant's criminal record showed no offences since 1994. He was working in steady employment, substantially supporting his family, earning some three-fourths of the total family income for himself, his wife and two children. His parents, two brothers and four sisters are resident in Canada and no other family members remain in Vietnam.
[6] On the day of the interview in April 2000, the officer concerned wrote to the applicant, advising that further information was required to further assess the h & c application, asking that an attached application for approval of rehabilitation, to be used for assessment information only, to be returned within 30 days. The application with the requested information was returned and received at the Etobicoke CIC office on May 5, 2000. For unexplained reasons that information did not reach the applicant's h & c application file for many months.
[7] On November 30, 2000 the officer concerned with the h & c application reviewed the applicant's file. She noted that he had not responded to her earlier request in April for a completed "approval of rehabilitation kit" to be returned, that without sufficient reason to assess the reasons for his criminal activities she was not satisfied that the crimes were not severe and that he had remorse. Her notes also make brief reference to his family circumstances and set out her conclusion that waiver was not warranted of s. 9(1) of the Immigration Act, requiring that a visa for landing as a permanent resident be obtained outside Canada. Her determination was not then communicated to the applicant. He only learned of the notes made on November 30, 2000 when the record of the applicant's case was produced by the department in this judicial review.
[8] On January 3, 2001 a letter was sent to the applicant advising that his request for processing from within Canada on h & c grounds was denied. That letter refers to a review of his case on November 30, 2000 and a decision then made that an exemption from the requirement to apply from abroad "will not be granted for your application." The notes made by the officer
concerned on November 30, 2000, though headed "Decision and Rationale", were not sent to the applicant. It is the decision set out by the letter of January 3, addressed to the applicant, that is the subject of this judicial review. No reasons for the decision are set out in that letter.
[9] On April 11, 2001, the officer who had refused the h & c application was made aware that the "rehabilitation kit" she had requested on April 11, 2000 to be returned by the applicant had been received by the department on May 5, 2000, and had been added to the applicant's file at some time after her negative decision. Acknowledging there was no fault by the applicant, she decided to review the submissions she had not read or assessed, "to make a better informed decision," as she sets out in a written "Addendum" to the applicant's h & c file. That "Addendum" sets out that after reviewing all of the information,
...The new information does not sway me to believe that his crimes were not serious enough to outweigh the fact that he has a spouse, children and family in Canada. Therefore I am not satisfied that sufficient humanitarian and compassionate grouds [sic] exist for A 9(1) to be waived and my negative decision still stands as of today's date.
[10] As in the case of the November 2000 "Decision and Rationale", the "Addendum" was not communicated to the applicant or his counsel and its existence only became known by them on production of the decision-maker's record in this proceeding. When this matter was heard, counsel for both parties initially took those two documents as expressing reasons for the officer's decision.
[11] I do not doubt the good intentions of the officer concerned in reviewing the applicant's case when she became aware after the negative decision of January 3, 2001 that information
requested of the applicant and submitted by him had not been properly considered. Nevertheless, in my opinion, the process followed in the circumstances of this case was essentially unfair as a result of the respondent's staff failing to ensure the applicant's submissions, requested and received within 30 days, were available for consideration by the responsible officer until some time after the officer's decision made, 8 months later by letter of January 3, 2001.
[12] When the officer reviewed matters in April, 2001, the negative decision having been made, consideration of the applicant's h & c circumstances appears to have been on a different standard than was the case originally. If I understand the officer's somewhat contradictory statements from the "Addendum" quoted above, the standard at the time of her review in April was whether the "new information" persuaded her that his crimes were not serious enough to outweigh those h & c factors that would support a positive decision. In my opinion, despite the good intentions of the officer, the process of considering the h & c application was unfair. Moreover, essential information, submitted to the respondent, was not considered when the decision in question was made. The decision shall be set aside and the application reconsidered by a different officer.
[13] In the course of that reconsideration, I direct that full and fair consideration be given to the interests of the applicant's children, and his other family members, if he were to be removed from Canada. Whether that was done in the process of the decision of January 3, 2001 is in
dispute, a matter I need not resolve. I do, however, note that evolving jurisprudence since that decision may inform the manner in which those interests should now be considered.
[14] Finally, the order issued provides that the respondent's representative, in considering the application, may decide to consider submissions of the parties concerning recent developments, since May of 2000 when the last information was provided by the applicant for consideration, so that a decision hereafter made is with reference to recent relevant information, supportive or not, of the h & c application.
[15] An Order goes implementing these conclusions.
"W. Andrew MacKay"
J.F.C.C.
Toronto, Ontario
May 15, 2002
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-4009-01
STYLE OF CAUSE: TRUONG NHU TRUONG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
DATE OF HEARING: TUESDAY, MAY 14, 2002
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: MACKAY J.
DATED: WEDNESDAY, MAY 15, 2002
APPEARANCES BY: Mr. Marvin Moses
For the Applicant
Mr. James Todd
For the Respondent
SOLICITORS OF RECORD: Moses & Associates
Barristers and Solicitors
480 University Avenue
Suite 610
Toronto, Ontario
M5G 1V2
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20020515
Docket: IMM-4009-01
BETWEEN:
TRUONG NHU TRUONG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER