Date: 20020614
Docket: IMM-2656-01
Neutral Citation: 2002 FCT 681
BETWEEN:
QUANG DANG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review of the decision of a visa officer, dated April 12, 2001, refusing the Applicant's application for permanent residence in Canada as a Convention refugee seeking resettlement.
[2] The Applicant was born in Cambodia and has resided in Vietnam since his family fled the Khmer Rouge regime. In 1994, the Applicant's sister was sponsored by her husband and moved to Canada. In 1998, the Applicant's sister sponsored their parents to come to Canada. The Applicant is the only remaining family member in Vietnam.
[3] In 1998, the Applicant was sponsored by the Mennonite Central Committee as a Convention Refugee Seeking Resettlement. The Applicant also requested that humanitarian and compassionate (H & C) factors be considered. It is agreed that a request such as this results in one decision which incorporates two aspects: the Convention Refugee Seeking Resettlement aspect and the H & C aspect. As a result, it is agreed that within the present application for judicial review each aspect can be considered independently.
[4] The Visa Officer determined that the Applicant did not meet the definition of a Convention Refugee Seeking Resettlement because he did not have a well-founded subjective fear of persecution.
[5] The Visa Officer referred the H & C request to a Senior Immigration Officer. The H & C request was refused and a refusal letter was sent to the Applicant.
[6] At the hearing of the present case, counsel for the Applicant fairly agreed that the Visa Officer's conclusion that the Applicant does not hold a subjective fear can not be refuted on the evidence on the record. As a result, counsel for the Applicant also fairly agreed that no reviewable error exists in the Convention Refugee Seeking Resettlement aspect of the decision under review.
[7] However, I find counsel for the Applicant's argument with respect to the H & C aspect of the decision to be compelling.
[8] With respect to the H & C aspect of the decision, the Applicant submits that no reasons were given for rejecting the request. I find merit in this argument because nowhere in the record is there any meaningful discussion of H & C factors. The CAIPS notes address the Convention Refugee Seeking Resettlement aspect of the Applicant's claim and were prepared by the Visa Officer who made this determination. There is no meaningful discussion of H & C considerations within the CAIPS notes prepared by the Visa Officer. There is simply a referral to the Senior Immigration Officer to make a decision on H & C grounds.
[9] The decision of the Senior Immigration Officer reads as follows:
Applicant does not meet the definition of a Convention refugee and although he is sponsored by a group there are no grounds to approve his application. I am not satisfied there are humanitarian and compassionate grounds that would warrant approval of his application on these grounds. (Tribunal Record, p.5).
[10] I agree with the Applicant that not only are there no reasons for the H & C decision within the statement of the Senior Immigration Officer, but there is no discussion whatever in the Visa Officer's CAIPS notes which can be considered to be reasons for the decision. The Supreme Court of Canada's discussion in Baker v. M.C.I., [1999] 2 S.C.R. 817 at paragraph 63, of the appropriate standard of review of H & C decisions, highlights the importance of the provision of reasons:
I will next examine whether the decision in this case, and the immigration officer's interpretation of the scope of the discretion conferred upon him, were unreasonable in the sense contemplated in the judgment of Iacobucci J. in Southam, supra, at para. 56:
An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. The defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical process by which conclusions are sought to be drawn from it.
[11] In the present case, as there are no reasons to examine, I find the H & C aspect of the decision is made in reviewable error.
O R D E R
Accordingly, I set aside the decision herein, and by agreement of counsel for the Applicant and Respondent, refer the matter back for redetermination on the H & C aspect of the application only. Also as agreed, both the Applicant and Respondent are at liberty to file fresh evidence and submissions on the redetermination.
"Douglas R. Campbell"
JUDGE
Calgary, Alberta
June 14, 2002
FEDERAL COURT OF CANADA
Date: 20020614
Docket: IMM-2656-01
BETWEEN:
QUANG DANG
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2656-01
STYLE OF CAUSE: QUANG DANG v. THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: CALGARY, Alberta
DATE OF HEARING: June 14, 2002
REASONS FOR ORDER AND ORDER : CAMPBELL, J.
DATED: June 14, 2002
APPEARANCES:
Mr. Peter Wong FOR APPLICANT
Ms. Tracy King FOR RESPONDENT
SOLICITORS OF RECORD:
Caron & Partners LLP FOR APPLICANT
Calgary, Alberta
Morris A. Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada