Federal Court Decisions

     IMM-3538-94

BETWEEN:

     LUONG MANH NGUYEN

     GROUP SOLIDARITE,

     Applicants,

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

     Respondent.

     REASONS FOR ORDER

REED J.

     The applicants seek the issuance of a show cause order requiring the respondent to appear in Court and explain why he should not be held to be in contempt of Court. An order pursuant to subrule 355(4) of the Federal Court Rules¹ is sought. The grounds on which contempt may be found are set out in subrule 355(1):

Anyone is guilty of contempt of court who disobeys any process or order of the Court or a judge thereof, or who acts in such a way as to interfere with the orderly administration of justice, or to impair the authority or dignity of the Court.

     The applicants do not allege disobedience of an order or process of the Court, or interference with the orderly administration of justice. They allege that the respondent has acted so as to impair the authority or dignity of the Court. It is necessary, first, to set out the relevant factual history.

Factual History

     In 1979 - 80, individuals who became known as the Vietnamese boat people were fleeing Vietnam. Many of them arrived in Hong Kong. On June 16, 1988, Hong Kong established a refugee determination process. Under that process, Vietnamese arrivals were either "screened in", determined to be refugees, or "screened out". In the former case, they were allowed to live freely in Hong Kong. In the latter, they were confined to camps (sometimes referred to as refugee camps, sometimes as closed camps, sometimes as detention centres). Those kept in the camps had the option of returning to Vietnam or remaining in the camps.

     On May 19, 1989, the applicant, Luong Manh Nguyen, left Vietnam by boat, with his wife and two children, and arrived in Hong Kong. They were subsequently screened out under the Hong Kong refugee determination process.

     On June 14, 1989, a Draft Declaration and the Comprehensive Plan of Action ("the Plan") was adopted by an International Conference on Indochinese Refugees, held under the auspices of the United Nations.² This Plan was developed in response to the great numbers of Vietnamese boat people that were fleeing Vietnam and arriving in various parts of south-east Asia. The Plan constituted a political commitment by the countries participating in it. Under the Plan a process was approved whereby individuals who were determined to be refugees by the country of first asylum would become eligible for third-country resettlement. The Plan states that those not screened in "should return to their country of origin in accordance with international practices reflecting the responsibilities of States towards their own citizens".³ Insofar as Hong Kong was concerned, although the Plan was put in place until June 14, 1989, it would operate retroactively to June 1988.⁴

     The Plan is not a treaty or convention. The Plan creates no obligations on the Government of Canada under either domestic law or international law. Canada was one of the countries supporting the Plan and became a member of the steering committee concerned with its implementation.

     At the time in question, Canadian domestic law relevant to Mr. Nguyen was found in the Indochinese Designated Class Regulations, SOR/78-931, as amended up to but not including SOR/90-626.⁵ Under those regulations, the entry into Canada of persons from certain listed countries was facilitated. Vietnam was one of the countries listed. In order to fall within the designated class, the individual had to have left the listed country after 1975 and not become permanently resettled elsewhere. It is not necessary to describe the provisions in detail except to say that Mr. Nguyen fell within that category and, therefore, he was eligible for sponsorship for admission to Canada. A sponsorship application was filed on his behalf by the Group Solidarité, on September 7, 1989.

     On August 31, 1990, the Indochinese Designated Class Regulations were changed to bring them into line with the terms of the Plan. This was accomplished by the Indochinese Designated Class (Transitional) Regulations, SOR/90-626. A description of the purpose of the new regulations is found in the Regulatory Impact Analysis Statement, which accompanied their publication.⁶ The new regulations provided that insofar as Hong Kong was concerned, individuals who arrived there before June 16, 1988, (the "long stayers") would continue to be treated as they had been previously under the Indochinese Designated Class Regulations. Those "screened in" by the Hong Kong refugee determination process after June 16, 1988 were to be similarly treated. Nothing was said about individuals who had arrived after June 16, 1988, but before June 14, 1989 or before Canadian domestic law was changed on August 30, 1990. Nothing was said about existing applications for permanent resident status that had not been processed.

     The respondent did not proceed with the processing of the sponsorship application of September 7, 1989. As a result of this inaction, an application was commenced in this Court seeking an order to compel the respondent to process the sponsorship application: Dai Nguyen, Groupe Solidarité, Luong Manh Nguyen v. Minister of Employment and Immigration, (T-3142-90). The respondent's response to that application included an affidavit in which it was stated that visa officers in Hong Kong did not have access to the people who were being kept in the camps. Mr. Cullum, the relevant affiant stated:

8. I am advised by an official employed with the visa section of the Office of the Commissioner for Canada in Hong Kong and do verily believe that the visa officers in Hong Kong do not have access to the Vietnamese boat people in detention centres who arrived after June 16, 1988 unless they have been screened in as refugees or are immediate family members of persons in Canada. When the Vietnamese boat people are screened in they are moved from detention centres to open refugee centres and as soon as a visa officer receives notification that an individual has been screened in, a person with a sponsorship on file with the visa office in Hong Kong is scheduled for an interview with the visa officer.

     This was not accurate, as appears from what occurred subsequently. However, on the basis of this evidence, Mr. Justice Cullen declined to grant the order sought. In his decision, dated February 1, 1991, he added, as an obiter statement, the following paragraph:

The heart-wrenching letters calling for help from Luong Manh Nguyen would or should move those who read them to bend every effort to find a way to help. Political prisoners in Chile were reached and gained safe haven in Canada. Similarly, a way was found to reach boat people adrift at sea and in Malaysian camps. I am satisfied that no order of mandamus is possible in the circumstances here but would express the hope that some effort will be made to prevent the return of this family to Vietnam or even to prevent possible suicide. We who are not on the scene cannot realize the extent of the overall problem but can appreciate the need for C.P.A. [Comprehensive Plan of Action]. However, despite the United Nations's aspirations for humanitarian treatment of asylum seekers, they and member countries must be alive to the fact that humanitarianism will only follow from careful attention to the plight of individuals - where the criteria applied may have the opposite effect to the one intended.

     In response to these comments, officials of the Department of Immigration in Ottawa obtained an assisted relative sponsorship application from Mr. Nguyen's brother, Mr. Dai Nguyen. This was sent to the Canadian visa officers in Hong Kong. A reply was received by telex from that office expressing unwillingness to proceed as Ottawa officials were requesting:

... 4. IN CONTEXT OF CPA AND SCREEN-OUT DECISION FOR LUONG DO NOT/NOT FEEL IT APPROPRIATE TO SOLICIT APPLICATION FROM LUONG NOR TO ENCOURAGE 1344 FROM DAI. IN ALL CASES WHERE THERE IS AN AR CONNECTION WE SEND CANADIAN SPONSOR A TELEX TO EXPLAIN WE CANNOT PROCESS CASE FOR RESETTLEMENT IN HKONG UNLESS PERSON IS SCREENED-IN BY HKONG GOVT. IF PERSON IS SCREENED-OUT THEY CAN RETURN TO VN AND SPONSORSHIP CAN BE SUBMITTED THROUGH BANGKOK OFFICE. WE HAVE MANY SPONSORSHIPS FROM GROUPS AND RELATIVES FOR PERSONS IN DETENTION CENTRES WHO ARRIVED AFTER JUNE 16/88. WE HAVE NOT/NOT APPROACHED HKONG GOVT FOR APPLICATIONS FROM SCREENED-OUT INDIVIDUALS FOR CONSIDERATION AS AR CASES. IF WE ASK FOR APPLICATION FOR ONE CASE, THEN FOR THE REST WHERE WOULD WE DRAW LINE? WE HAVE APPROX 1500 SUCH SPONSORSHIPS.

5. IT IS VERY IMPORTANT TO HAVE CASE DECISION, OBITER COMMENTS AND ALSO ANY OTHER BACKGROUND INFORMATION AVAILABLE, FOR OF COURSE WITHOUT THEM IT IS DIFFICULT TO PROCEED. FEEL THAT NEGATIVE REPERCUSSIONS OF PROCEEDING AS SUGGESTED IN REFMEMO ARE MAJOR.7

     On July 12, 1993, the Federal Court of Appeal overruled Mr. Justice Cullen's decision and ordered the respondent to process the September 7, 1989 sponsorship application.⁸

     An interview for the purpose of processing the September 7, 1993 sponsorship application was held with Mr. Nguyen in February 1994. Subsequent thereto, a decision letter, dated June 22, 1994, was sent to him stating that his application for permanent residence in Canada under the Indochinese Designated Class category was denied. The visa officer had determined that he would not be able to establish himself and his family successfully in Canada. The immigration official stated that she had also considered whether there were possible humanitarian and compassionate grounds to warrant a favourable decision and had reached a negative conclusion.

     On the following day, June 23, 1994, amendments to the Indochinese Designated Class (Transitional) Regulations were promulgated; see SOR/94-482. Those amendments revised the Regulations so that they would operate retroactively and preclude anyone else in the position of Mr. Nguyen from pursuing an application for permanent resident status. Mr. Nguyen was not excluded, however, because at the time he did not have a pending application but one on which a decision had been rendered. The Regulatory Impact Analysis Statement that accompanies the amendment to the regulations makes it quite clear that they were being promulgated to reverse the Federal Court of Appeal decision in Nguyen.

     In any event, the June 22, 1994 decision denying Mr. Nguyen's application for permanent resident status was in turn challenged by the applicants. That decision was challenged on several grounds. One of these was that Mr. Nguyen had not been given adequate notice of the interview of February 1994 before it took place. A second was that the visa officer, in making the decision that no humanitarian compassionate grounds existed, had taken into account irrelevant considerations. The visa officer found no humanitarian and compassionate grounds to exist because the applicant and his family were in the same position as everyone else in the closed camps.

     Mr. Justice Gibson, by decision dated October 6, 1995, quashed the decision of June 22, 1994, and ordered a reconsideration of the September 7, 1989 application. He agreed that the decision was flawed for the two reasons described above. With respect to the second of these he wrote:

... It was inappropriate and indeed, I conclude, wrong for the visa officer to compare the humanitarian and compassionate factors applicable in this case to those applicable in the cases of twenty-two thousand others in similar camps. To do so appears to imply a concern about a "floodgates effect" which was simply not relevant. Not all of those applying for landing in Canada from outside Canada are or were at the relevant time in refugee camps. Many are and were not. Similarly, not all those in refugee camps are or were seeking landing in Canada. Relatively few were at the relevant time. Indeed, I was advised this was the only interview that the visa officer conducted in a refugee camp during her tenure in Hong Kong. Further, shortly after the decision in this case was made, retroactively, the number of persons in situations equivalent to the principal applicant would could apply under the Indochinese Designated Class regulations, 1978, was further restricted. This principal applicant and his family members were entitled to have their humanitarian and compassionate circumstances considered on their own merits, not by contrast with those in an irrelevant, albeit in some respects, similarly situated class. ...

     Consequent on Mr. Justice Gibson's decision, another interview with Mr. Nguyen, for the purposes of the processing the September 7, 1989 application, was scheduled. The applicant's counsel, Mr. Matas, went to Hong Kong and met with his client before the interview was held but counsel was refused permission to be present at the interview itself. Some considerable time later, counsel says six months, a letter dated June 28, 1996, was sent to the applicant setting out the respondent's disposition of the September 7, 1989 application. That disposition was identical in result to that of June 22, 1994. The visa officer stated that he had not been satisfied that Mr. Nguyen would be able to establish himself and his family successfully in Canada. The letter was also stated that there were insufficient humanitarian and compassionate grounds to warrant special consideration of Mr. Nguyen's application.

     A letter dated May 15, 1996, concerning Mr. Nguyen, had been sent by the then Minister of Foreign Affairs, Mr. Axworthy, to the then respondent Minister, Madame Robillard. This led to a letter, in response, from the then respondent Minister to the Minister of Foreign Affairs. The letter is dated July 8, 1996. It states that Mr. Nguyen's application for permanent resident status was processed under the provisions of the Plan. The letter states that as he had arrived "in the region" after June 1988 he was not eligible for resettlement in a third country unless determined by the United Nations High Commission for Refugees ("UNHCR") to be a Convention refugee. The letter went on to describe the first and then the second Court order requiring the processing of Mr. Nguyen's application and the results arising therefrom.

     Counsel notes a number of errors in the letter. It refers to displaced Indochinese who "arrived in the region after June 1988". It is only with respect to Hong Kong that the June 1988 date is relevant. The relevant date varies with the date of the establishment of a local screening procedure in the particular country in question. The letter refers to a determination of refugee status by UNHCR. This is not correct. It is not the UNHCR that screens refugees but rather the first asylum country (albeit as I read the Plan, after June 14, 1989, subject to observation by UNHCR). The letter says that countries such as Canada agreed not to accept non-refugees unless they had first returned to their native country. Counsel argues that this is a misreading of the Plan but, in any event, even if this were true, Canada's domestic law at the relevant time, even if more generous than the measures envisaged under the plan, govern Mr. Nguyen's situation.

     Counsel's main objection to the contents of the letter, concerns the first statement referred to above, the statement that Mr. Nguyen's application was processed under the provision of the Plan. He states that if this statement is true, then, actions have occurred that constitute a contempt of Court.

Contempt Alleged

     Counsel's argument proceeds on two grounds. He argues that if the Minister's statement that Mr. Nguyen's application was processed under the provisions of the Plan refers to the first processing, that which led to the decision of June 22, 1994, then the immigration official who made that decision gave incorrect information to the Court when the decision was being reviewed by Mr. Justice Gibson. The immigration officer in question was asked, on cross-examination of her affidavit, filed for the purposes of that proceeding, whether the Plan played any role in the decision she had made. She responded that it had not.

     On the other hand, counsel argues that if the processing under the provisions of the Plan occurred in the context of the processing that led to the June 28, 1996 decision, then, this is contrary to Mr. Justice Gibson's direction as to what should be taken into account on the reconsideration of Mr. Nguyen's application. Mr. Justice Gibson's direction was that the applicant was to be assessed by reference to the particular merits of his case and not to the general situation of others in the camps (the floodgates argument). Counsel argues that to process Mr. Nguyen's application pursuant to the provisions of the Plan is a breach of the spirit, if not the letter, of Mr. Justice Gibson's order. He notes that the order must be read in the light of the reasons therefor, which issued on October 6, 1995.

Respondent's Position

     Counsel for the respondent argues that the Minister's letter of July 8, 1996, should not be read as counsel for the applicants would have me do. He argues that that letter was written in response to a letter from Mr. Axworthy to Mde Robillard on May 15, 1996, that is, before the June 28, 1996 decision was rendered. Secondly, he argues that the letter is clearly an historical narrative, written in chronological fashion. As such he argues that the reference to the processing of the application under the provisions of the Plan must be read as meaning that the sponsorship application was reviewed, or the processing of it was initially refused, pursuant to the terms of the Plan. He argues that there is no direct evidence that the Plan was used in doing either the first or the second assessment, that the visa officer's file, in neither case, indicates a determination in accordance with the Plan, and that Mr. Justice Gibson did not find that such had occurred with respect to the June 22, 1994 decision. It is argued that all the Court has before it, as firm evidence, is the conjecture of counsel that because the, then, respondent Minister wrote to the Minister of Foreign Affairs, as she did, making reference to the Plan that there was a lack of honesty in the evidence given for the purpose of the proceedings before Mr. Justice Gibson, or a breach of the spirit, if not the letter, of Mr. Justice Gibson's order. Counsel argues that conjecture is a presumption based on the possibility [or probability] that a particular thing could or may have occurred, without proof that it did occur. While an inference, is a reasonable deduction or conclusion that can be drawn from proven facts (a conclusion that can reasonably be drawn from facts established in evidence).⁹ It is argued that there is insufficient factual evidence in the present case to support an inference that contempt occurred and, therefore, there is insufficient factual evidence to support a prima facie case of contempt.

Conclusion and Reasons Therefor

     Counsel for the respondent's argument that the letter could not have been written in reference to the June 28, 1996 decision is not persuasive. The letter refers to the outcome of that decision, including the finding with respect to humanitarian and compassionate grounds. The argument that the letter presents a chronological historical narrative is, however, more compelling. That is indeed the form the letter takes. It refers to the processing of the application under the Plan and, then, states "nevertheless", a Court ordered processing of the application was required and occurred. The letter continues to describe the second Court ordered processing.

     I accept counsel for the applicants' position that the Minister speaks for her department and when she described what occurred, i.e., the actions taken by her officials, that that description must be given considerable weight. At the same time, I recognize that Ministers may be incorrectly advised, or that letters written for their signature by others may contain errors. As noted, the July 8, 1996 letter is rife with error. The structure of the letter appears to follow that of a chronological narrative. If the statement relied upon is accurate, it is ambiguous as to whether it applies to the first or the second processing of Mr. Nguyen's application. The applicants have added neither the immigration official who made the first decision nor those who made the second as parties against whom contempt should be found. This is relevant in the light of the decision in Bhatnager v. Canada (M.E.I.), [1990] 2 S.C.R. 217.

     I cannot conclude that the evidence establishes a prima facie case of contempt, which is the test required to be met for the issuance of a show cause order. I consider that test to require that the evidence brought forward by an applicant must be sufficient, with nothing more, to establish a finding of contempt. The burden of proof in a contempt proceeding is "beyond a reasonable doubt". The applicants' evidence in this application, standing on its own, does not in my mind establish a prima facie case of contempt. Accordingly, the motion for a show cause order will be dismissed.

Costs

     The respondent seeks costs on the ground that a successful party is entitled to its costs. The applicants resist such an order. They argue that they were not obliged to serve the respondent for the purposes of this application. They could have proceeded ex parte. It is argued that if an award of costs is made in circumstances such as the present case, that action would discourage parties who seek a show cause order from giving notice to a respondent. Such action, it is argued, would not promote good litigation practice. Counsel for the respondent argues that proceeding ex parte or giving notice should not be relevant to an award of costs because if applicants obtain an unwarranted show cause order, the respondent can always move to set that aside and obtain its costs.

     I do not find it appropriate to award the respondent its costs in this case. I do not base that conclusion on the giving or lack thereof of notice, although I think the giving of notice in these kinds of cases should be commended. The decision that no costs should be awarded is based on the fact that: (1) the applicants' motion for a show cause order was not a frivolous one; and (2) an ambiguous and clearly, in places, erroneous letter signed by the respondent was the basis for the motion. In such circumstances no costs of this motion will be awarded.

OTTAWA, Ontario.

November 13, 1996.

    

                             Judge

__________________

1.      R. 355(4):
         No one may be condemned for contempt of court committed out of the presence of the judge, unless he has been served with a show cause order ordering him to appear before the Court, on the day and at the hour fixed to hear proof of the acts with which he is charged and to urge any grounds of defence that he may have. The show cause order issued by the judge of his own motion or on application must be served personally, unless for valid reasons another mode of service is authorized. The application for the issuance of the show cause order may be presented without its being necessary to have it served.

2.      It is not clear from the material filed whether the "draft" that is in the record is identical to that finally adopted. I have assumed that it is because counsel for neither party indicated otherwise.

3.      Paragraph 12 of the Plan, Reply of the Applicants, Court Document 41, p. 37.

4.      Paragraph 10 of the Plan, Reply of the Applicants, Court Document 41, p. 36.

5.      Promulgated pursuant to the Immigration Act, R.S.C. 1985, c. I-2, s. 114.

6.      Canada Gazette, Part II, Volume 124, p. 4112.

7.      Abbreviations used in this telex, I understand to carry the following meanings: CPA - Comprehensive Plan of Action; AR - Assisted Relative; H Kong - Hong Kong; VN - Vietnam.

8.      [1994] 1 F.C. 232.

9.      Reference was made to the discussion of the difference between a conjecture and an inference found in B.A. MacFarlane, Drug Offences in Canada , 2d ed. (Aurora: Canada Law Books Inc., 1986) at 69.