Federal Court Decisions

     IMM-3294-95

Between:

     HUOR CHIEU,

     Applicant,

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

     Respondent.

     REASONS FOR ORDER

Muldoon, J.

     The applicant seeks an order quashing the decision made by the Immigration Appeal Division ("IAD" or "board") dated May 31, 1995 which dismissed the applicant's appeal from a deportation order made June 24, 1994.

     The applicant, a native of Cambodia, fled to Vietnam in 1975 with his parents and four siblings because of the war in Cambodia. The Vietnamese government gave the applicant temporary residence status. He married a Vietnamese citizen and they have a child, who is also a Vietnamese citizen. The wife and child still reside in Vietnam. The applicant, his parents, and his siblings, applied for permanent resident status at the Canadian embassy in Bangkok on March 17, 1992 and was sponsored by his sister and brother-in-law. On his application for permanent residency, the applicant stated that he was not married or engaged, and that he had no dependants, in order to put a "favourable" application forward. He was landed in Canada on October 21, 1993.

     On March 24, 1994 the applicant made an application to sponsor his wife and child into Canada. After reviewing the applicant and reviewing his file, the Immigration Officer completed a paragraph 27(1)(e) Immigration Act, R.S.C. 1985, Chap. I-2 ("Act") report. This resulted in an adjudicator issuing a deportation order against the applicant. The applicant appealed the order to the IAD under paragraph 70(1)(b) of the Act, which gives the IAD the "equitable" jurisdiction to consider all of the circumstances of the case. Paragraph 70(1)(b) runs:

70.(1) Subject to subsection (4), where a removal order or conditional removal order is made against a permanent resident or against a person lawfully in possession of a valid returning resident permit issued to that person pursuant to the regulations, that person may appeal to the Appeal Division on either or both of the following grounds, namely,

(a)      * * *

(b)      on the ground that, having regard to all the circumstances of the case, the person should not be removed from Canada.

In dismissing the appeal, the IAD stated:

In this case, member of the Chieu family acknowledged that there had been a previous application by the Appellant and a previous refusal. In the application that is the subject of these proceedings, a decision was taken to lie and represent the Appellant as single, never married, and without dependents. The sole purpose was to ensure the success of the application. Partial responsibility for the deception was taken by Mr. Chieu, the Appellant's father, who acknowledged his desire to have his son with him. Further, the Appellant's sister was also aware of this deception. There was no misunderstanding of the rules or the requirements. This was simply a misrepresentation by the Appellant who was otherwise inadmissable. (decision, page 6).

* * * It is my conclusion that the most significant factor in his favour is the closeness he experiences with his family. However, even when considering other factors in his favour, including his motivation to work, his position as eldest son, and his lack of family network in Cambodia or Vietnam, I am nonetheless of the opinion that Mr. Chieu's breach of the Act, in face of inadmissibility, outweighs the circumstances in his favour * * * (decision, page 9).

It is from this decision that judicial review is taken.

     The central issue in this case is whether the board properly exercised its jurisdiction under section to uphold the deportation order. The provisions of the Act pertinent to this query are under section 52. They read, thus:

52.(1) Unless otherwise directed by the Minister, a person against whom an exclusion order or a deportation order is made may be allowed to leave Canada voluntarily and to select the country for which that person wishes to depart.

(2) Where a person is not allowed to leave Canada voluntarily and to select the country for which he wishes to depart pursuant to subsection (1), that person shall, subject to subsection (3), be removed from Canada to

(a)      the country from which that person came to Canada;

(b)      the country in which that person last permanently resided before he came to Canada;

(c)      the country in which that person is a national or citizen; or

(d)      the country of that person's birth.

(3) Where a person is to be removed from Canada and no country referred to in subsection (2) is willing to receive him, the person, with the approval of the Minister, or the Minister, may select any other country that is willing to receive that person within a reasonable time as the country to which that person shall be removed.

(4) Notwithstanding subsections (1) and (2) where a removal order is made against a person described in paragraph 19(1)(j), the person shall be removed from Canada to a country selected by the Minister that is willing to receive the person.

     The particular subsection at issue in this case is 52(2). The applicant's submission is that in its consideration of "all the circumstances", pursuant to paragraph 70(1)(b) of the Act, the board assumed that the applicant would be returned to Vietnam. The applicant submits that is an error in law because the board could legally not make that assumption. Further, the board did not consider return to Cambodia. The applicant was only a temporary resident of Vietnam. There was no evidence before the board which proved whether or not the applicant would be allowed to return. The applicant argues that in the absence of proof of foreign law, the applicable law is that of the lex fori, i.e. Canadian law. Under section 4(1) of the Act, only citizens and permanent residents of Canada have a right to entry into Canada. Temporary residents have no such right. The applicant submits that this means the board, erred because it should have presumed that the applicant would be returned to Cambodia. The board should have included in its consideration the effects of return to Cambodia.

     The Federal Court of Appeal, in Hoang v. Minister of Employment and Immigration, (1990) 120 N.R. 193; 13 Imm.L.R. (2d) 35, (Fed. C/A), considered the IAD's jurisdiction regarding subsection 52(2). Mr. Justice MacGuigan found that:

[W]ith respect to its nonconsideration of the country of destination, we believe the Board properly followed its earlier decision in Marki v. The Minister of Employment and Immigration, no. V81-6127, decided May 27, 1985, at 5 viz., that the board's jurisdiction is only over whether a person should be removed from Canada, not as to the country of removal:

"* * * The board is seized with an appeal from a deportation order. It has to rule on the validity of this order. Should the appeal fail, the issue of to where the appellant may be deported is a separate one; one over which the Board had no jurisdiction."

In fact, until the issue of deportation is settled, the Minister cannot make a decision as to the country of removal. Hence the statement at one point in the proceedings by the Minister's representative as to the Minister's disposition to deport the appellant to Vietnam cannot be taken as a formal expression of the Minister's decision since he is not yet empowered to make that decision . (at 195)

Clearly, the board's jurisdiction is solely over removal, nothing further.

     In its reasons, the board stated:

While the hardship of the removal from Canada is one of the circumstances to consider when the Appeal Division is making the determination of whether or not to exercise its equitable jurisdiction, the Federal Court of Canada has held in Hoang that it is premature for the Appeal Division to take into account the conditions of the person's country of origin, as the determination of to which country the deported person will be sent rests with the Minister of Immigration. (decision, page 8)

     The applicant's case hinges on whether Hoang applies to his circumstances. While Hoang concerned a convention refugee, it is a general statement interpreting this subsection. Counsel for the applicant strenuously argued that Hoang is not applicable in this situation because the applicant is not a convention refugee. There is no rational basis for distinguishing Hoang on this ground. Nor for the fact that in Hoang the board did not know where the applicant would be deported to, and that in the case at bar the board did know that he would be deported to Cambodia because of the operation of the statutory presumption. With respect to the presumption, it is clear that the applicant had no right to re-enter Vietnam. But no determination has yet been made regarding the country to which applicant will be deported. The deportation order runs as follows:

ON THE BASIS OF THE EVIDENCE ADDUCED AT THE INQUIRY HELD UNDER THE PROVISIONS OF THE IMMIGRATION ACT, I HAVE DECIDED THAT YOU ARE A PERSON DESCRIBED IN:

Subparagraph 27(1)(e)

I HEREBY ORDER THAT YOU BE DEPORTED PURSUANT TO SUBSECTION 32(2) OF THE ACT. (decision, page 1)

Clearly no determination is made. For the board to go beyond this and made related country considerations would have been a premature act by the board.

     This is why the decision of the Federal Court of Appeal in Hoang applies in this case. There is uncertainty where the applicant would be returned to, and this fits squarely into the same circumstances which were before the IAD in Hoang. This said, it is this Court's view that the appellate Court's reasons are of a universal application with respect to subsection 52(2) in any event.

     The applicant's counsel argued that the Federal Court of Appeal, in Canepa v. Canada (Minister of Employment and Immigration), [1992] 3 F.C. 270; 145 N.R. 121, overruled Hoang by inference. In Canepa, Mr. Justice MacGuigan stated that when the IAD looks at "all the circumstances of the case" pursuant to paragraph 70(1)(b), it must look at all of the extenuating circumstances in favour of the deportee. Hoang was mentioned and approved, but only with respect to section 7 of the Charter. Mr. Justice MacGuigan did not comment on the specific application of Hoang at issue here. In the absence of judicial comment to the contrary, Hoang is still law insofar as subsection 52(2) is concerned. It deals with the specific powers of the board's jurisdiction dealing with a specific removal provision, and gives clear direction as to how the board should proceed. In the case at bar, an assessment of country conditions by the board would have been premature.

     The fact that the applicant did not come to Canada as a refugee, so found, dilutes the notion of his being possibly in danger.

     The board properly applied Hoang. It cannot be said that they exceeded their jurisdiction when they looked at the applicant's connection to Vietnam. Nor did they err when they did not look at specific country conditions. To address the applicant's submission that the board should have considered the results of deportation to Cambodia, the board's reasons answer this:

Counsel for Mr. Chieu submitted that the Chieu family may be distinguished from others in that they have no real country, as they fled Cambodia for Vietnam in 1975, where they lived a self-described "refugee" life. Further, while there may be some elderly and distant relatives in Cambodia, there are no relatives in Vietnam. Further, the Chieu family has no assets in either Cambodia or Vietnam. (decision, page 7)

     The board considering all the circumstances of the case, within the boundaries prescribed by the Federal Court of Appeal in Hoang, did look at what the effect of deportation would have on the applicant. In doing so, they exercised their jurisdiction, in the Court's view unnecessarily, in favour of the applicant.

     For the foregoing reasons, this application for judicial review is dismissed. On the question of certification, the Court will abide by counsel's recommendation, if unanimous, that a decision regarding certification will not be issued until two weeks after parties have received copies of these reasons.

     The time, which was agreed to be accorded, has elapsed. The respondent's counsel, having seen the draft reasons issued late in November, reports contentment that no question be certified. The applicant's counsel made an elaborate submission containing four questions to be certified. They do not conform with the statutory text from which the IAD derives its jurisdiction.

     As noted earlier above herein, "The applicant's case hinges on whether Hoang applies to his circumstances." It concerned a Convention refugee, and the applicant's counsel strenuously argued that such factor made Hoang inapplicable here. This Court thinks otherwise, but this Court is not infallible. Therefore the Court certifies the applicant's counsel's principal question re-worded in statutory terms, thus:

Can the Appeal Division of the IRB, in the exercise of its jurisdiction to have "regard to all the circumstances of the case", under the Immigration Act's paragraph 70(1)(b), consider the country (and its conditions) to which the non-refugee appellant would, on the balance of probabilities, be removed when assessing whether "the person should not be removed from Canada"; or not, in accordance with the decision of Mr. Justice MacGuigan in a refugee case, Hoang v. Minister of Employment and Immigration, (1990) 120 N.R. 193 at 195; 13 Imm.L.R. (2d) 35 (F.C/A) quoted above herein?

    

Judge

Ottawa, Ontario

December 18, 1996