Date: 20010315
Docket: IMM-2768-00
Neutral citation: 2001 FCT 192
BETWEEN:
TU VAN DUONG
Applicant
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
Introduction
[1] Mr. Tu Van Duong (the "Applicant") seeks judicial review of the decision of P. Russell, an Immigration Officer (the "Officer"). In her decision dated May 11, 2000, the Officer decided not to recommend a positive decision under the humanitarian and compassionate grounds set out in section 114(2) of the Immigration Act, R.S. 1985, c. I-2 (the "Act").
Facts
[2] The Applicant is a citizen of Vietnam. He arrived in Canada in 1989 as a member of the family class, claiming to be unmarried. This was not true, since the Applicant had married in Vietnam in 1984 and a child was born of that marriage in 1985.
[3] These facts came to the attention of Canada Immigration authorities and a deportation order was issued against the Applicant. The Applicant unsuccessfully appealed this order to the Immigration Appeal Division. An application to seek leave and judicial review of that decision was dismissed on December 2, 1998.
[4] On December 3, 1998, the Applicant made his application pursuant to section 114(2) of the Act. This type of application, known colloquially as an "H & C" application, invokes the discretionary decision-making authority of an Immigration Officer.
[5] On November 16, 1999 the Applicant attended an interview with the Immigration Officer. The Officer made notes at the interview, recording her inquiries to the Applicant and his answers. The Officer noted that the Applicant had resided in Canada for ten years, that he was employed and had bought a house with his sister. She also acknowledged that the Applicant had made no attempt to leave Canada and that his mother and five siblings reside here. The Officer recorded that divorce proceedings had been initiated in Vietnam but were not finalized.
[6] Finally, she expressed her opinion that the Applicant would not suffer undeserved or disproportionate harm if his application was refused. She also recorded her conclusion and determined that:
... there are insufficient H & C grounds to warrant a favourable decision for processing of this claim within Canada.
[7] In January 2000, the Applicant submitted, through counsel, a letter from the Embassy of Vietnam advising that no passport could be issued to the Applicant because he did not have the necessary supporting documents. In April 2000, counsel submitted a further letter to the Officer, forwarding a copy of the Applicant's divorce decree.
[8] On May 11, 2000, the Officer signed the letter advising the Applicant that his H & C application had been refused. The letter did not refer to the correspondence and attachments which had been submitted to the Officer following the interview on November 16, 1999.
Submissions
[9] The Applicant raises two issues:
1. Did the Officer ignore or misconstrue relevant evidence?
2. Did the Officer fail to apply to guidelines governing H & C applications?
[10] The Applicant submits that the Officer ignored relevant evidence, specifically the information submitted after his interview concerning his inability to obtain a passport from the Vietnam authorities and the dissolution of his marriage in Vietnam. The Applicant also argued that the Officer failed to apply and follow the H & C guidelines, particularly those relating to establishment in Canada.
[11] Finally, the Applicant submits that the applicable standard of review to the decision is reasonableness, pursuant to the decision of the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.
[12] The Respondent disputes these arguments and for her part, says that the issue for consideration here is whether the Officer properly exercised her discretion upon consideration of the evidence before her. The Respondent says further that there is no evidence to show that she did not consider or apply the relevant guidelines.
Analysis
[13] The appropriate standard of review is reasonableness, as described by Justice L'Heureux-Dubé in Baker, supra at paragraph 62:
__These factors must be balanced to arrive at the appropriate standard of review. __I conclude that considerable deference should be accorded to immigration officers exercising the powers conferred by the legislation, given the fact-specific nature of the inquiry, its role within the statutory scheme as an exception, the fact that the decision-maker is the Minister, and the considerable discretion evidenced by the statutory language. _Yet the absence of a privative clause, the explicit contemplation of judicial review by the Federal Court -- Trial Division and the Federal Court of Appeal in certain circumstances, and the individual rather [page 858] than polycentric nature of the decision, also suggest that the standard should not be as deferential as "patent unreasonableness".__I conclude, weighing all these factors, that the appropriate standard of review is reasonableness simpliciter.
[14] In my opinion, the Officer's decision was not reasonable, having regard to the evidence before her about the Applicant's establishment in Canada, including the facts concerning residence here of family members, his history of gainful employment, his purchase of a home and the lack of familial relationships in Vietnam following a long absence and divorce from his wife.
[15] I accept the submissions by the Applicant that the Officer was unduly influenced by the undisputed fact that upon his entry to Canada in 1989, the Applicant misrepresented his status, claiming to be unmarried when that was not the case. The reasoning of Heald, J.A. in Lau v. Minister of Employment and Immigration, [1984] 1 F.C. 434 at p. 438 is apposite to the present case:
... the Adjudicator has given undue weight to the circumstances of a breach of provisions of the Immigration Act, 1976. If Parliament had intended that circumstance to be the dominating and determining circumstance, then there would have been no point in conferring the subsection 32(6) discretion on the Adjudicator. By so conferring a discretion, Parliament must have intended the Adjudicator to look at all the circumstances and implied in that discretionary power is the power to grant departure notices where all the circumstances warrant it, notwithstanding that breaches of the Immigration Act, 1976 have occurred. Accordingly, I have concluded that the Adjudicator misconceived the parameters of the discretion conferred upon him pursuant to subsection 32(6) of the Act, which misconception represents an error in law reversible by the Court under section 28 of the Federal Court Act.
[16] In the present case, the Applicant made misrepresentations when he initially entered Canada. He now seeks the exercise of discretion pursuant to section 114(2) of the Act.
[17] In my opinion, the record shows that the Officer gave undue weight by these misrepresentations. This affected the due exercise of her discretion which was to consider all the relevant circumstances relating to this Applicant, including evidence of his establishment in Canada.
[18] This ground alone is sufficient to allow the application for judicial review. It is not necessary for me to comment on the other arguments raised by the Applicant.
ORDER
[19] The application for judicial review is allowed. The matter is remitted to the Minister for redetermination by a different Officer. No question was proposed for certification.
"E. Heneghan"
J.F.C.C.
Toronto, Ontario
March 15, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-2768-00
STYLE OF CAUSE: TU VAN DUONG
Applicant
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
DATE OF HEARING: TUESDAY, MARCH 13, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: HENEGHAN J.
DATED: THURSDAY, MARCH 15, 2001
APPEARANCES BY: Ms. Barbara Jackman
For the Applicant
Ms. Marissa Bielski
For the Respondent
SOLICITORS OF RECORD: Jackman, Waldman & Associates
Barristers & Solicitors
281 Eglinton Ave. East
Toronto, Ontario
M4P 1L3
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20010315
Docket: IMM-2768-00
Between:
TU VAN DUONG
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER