Date: 20031210
Docket: IMM-5944-02
Citation: 2003 FC 1426
Ottawa, Ontario, this 10th day of December, 2003
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
KHAC TAN HUYNH
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Khac Tan Huynh arrived in Canada in 1985. He was ordered to be deported in 1993 after committing serious criminal offences: Immigration Act, R.S.C. 1985, c. I-2, ss. 27(1)(d) (relevant enactments are set out in an Annex). He was convicted of two charges of uttering forged documents, as well as assault with a weapon, assault causing bodily harm and possession of a weapon. At the time, he admitted having a problem with alcohol, but said he was taking steps to curtail his consumption. He appealed the deportation order to the Appeal Division of the Immigration and Refugee Board. After looking at all of the circumstances surrounding Mr. Huynh's case, the Appeal Division concluded in 1997 that there was a realistic potential for Mr. Huynh's rehabilitation. Accordingly, it stayed his removal from Canada for five years, but imposed on him certain conditions, among them an obligation to "keep the peace and be of good behaviour."
[2] Thereafter, Mr. Huynh committed three further offences: possession of marijuana, impaired driving and driving with a blood-alcohol level exceeding .08. The Appeal Division conducted a second review of Mr. Huynh's case in 2002. It decided to lift the stay on Mr. Huynh's deportation order.
[3] Mr. Huynh argues that the Appeal Division made serious errors that justify its decision being overturned. I disagree. I find no basis for interfering with the Appeal Division's decision.
Issues
[4] Mr. Huynh made two arguments: First, he argued that the Appeal Division was under a duty to provide him with reasons for its decision to lift the stay on his deportation order. Second, he argued that the Appeal Division's conclusion was unreasonable.
(a) Reasons
[5] The Act requires the Appeal Division to provide reasons for a decision if requested within ten days: s. 69.4(5). Mr. Huynh made no such request. Still, he argues that Appeal Division should have provided a rationale for lifting the stay against him. He cited no legal authority indicating that the Appeal Division has a duty beyond what is set out in the Act. I agree that decision-makers often have a duty to give reasons in respect of matters affecting a person's interests. But imposing on the interested person a requirement to request reasons does not contradict that duty: Marine Atlantic Inc. v. Canadian Merchant Service Guild, [2000] F.C.J. No. 1217 (QL) (C.A.). If Mr. Huynh wished to have reasons, he simply had to ask for them.
(b) Unreasonableness
[6] Mr. Huynh also argued that, in the absence of reasons from the Appeal Division, this Court has a duty to determine whether the decision to lift the stay on the deportation order was reasonable: Perkins v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1759. I have reviewed the entire record before the Appeal Division and find no basis for interfering with its conclusion that the stay should be lifted. True, there was evidence in Mr. Huynh's favour: he has been gainfully employed, helps support his family and has made a life for himself in Canada. Still, the Appeal Division had before it evidence of Mr. Huynh's further convictions and his ongoing use of alcohol. It was entitled to conclude that Mr. Huynh had not respected the conditions governing the stay of his deportation order and that the stay should, therefore, be cancelled.
[7] I note that in the criminal law the requirement to "keep the peace and be of good behaviour" is a statutory condition in all probation orders: Criminal Code, R.S.C. 1985, c. C-46, s. 732.1(2)(a). To be of "good behaviour", one must abide by federal, provincial or municipal statutes and regulations: R. v. R.(D.) (1999), 138 C.C.C. (3d) 405 (Nfld. C.A.). I see no reason why the same approach should not apply in this context.
[8] Accordingly, I must dismiss this application for judicial review.
[9] Counsel for Mr. Huynh requested an opportunity to propose a question of general importance for me to certify. Any submissions in that regard should be submitted within five business days of this judgment. Counsel for the respondent will have three business days to respond.
JUDGMENT
THIS COURT'S DECISION IS that:
1. The application for judicial review is dismissed.
2. Counsel for the applicant has five (5) business days to submit a question of general importance for certification; and
2. Counsel for the respondent will have three (3) business days to respond to any such submissions.
"James W. O'Reilly"
Judge
| Annex Immigration Act, R.S.C. 1985, c. I-2
Reports on permanent residents
27. (1) An immigration officer or a peace officer shall forward a written report to the Deputy Minister setting out the details of any information in the possession of the immigration officer or peace officer indicating that a permanent resident is a person who
(d) has been convicted of an offence under any Act of Parliament, other than an offence designated as a contravention under the Contraventions Act for which a term of imprisonment of more than six months has been, or five years or more may be, imposed;
Written reasons 69.4 (5) The Appeal Division shall forthwith give written reasons for its disposition of any appeal made pursuant to section 70 or 71 where either of the parties to the appeal has so requested within ten days after having been notified of the disposition of the appeal.
Criminal Code, R.S.C., c. C-46
Compulsory conditions of probation order
732.1 (2) The court shall prescribe, as conditions of a probation order, that the offender do all of the following:
(a) keep the peace and be of good behaviour;
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Annexe Loi sur l'immigration, L.R.C. 1985, ch. I-2
Rapports défavorables: résidentspermanents
27. (1) L'agent d'immigration ou l'agent de la paix doit faire part au sous-ministre, dans un rapport écrit et circonstancié, de renseignements concernant un résident permanent et indiquant que celui-ci, selon le cas:
d) a été déclaré coupable d'une infraction prévue par une loi fédérale, autre qu'une infraction qualifiée de contravention en vertu de la Loi sur les contraventions :
(i) soit pour laquelle une peine d'emprisonnement de plus de six mois a été imposée,
(ii) soit qui peut être punissable d'un emprisonnement maximal égal ou supérieur à cinq ans;
Motifs 69.4 (5) La section d'appel n'est tenue de motiver par écrit sa décision sur un appel présenté en vertu des articles 70 ou 71 que si l'une des parties le demande dans les dix jours suivant sa notification, auquel cas la transmission des motifs se fait sans délai.
Code criminel, L.R.C., ch. C-46
Conditions obligatoires
732.1 (2) Le tribunal assortit l'ordonnance de probation des conditions suivantes, intimant au délinquant_:
a) de ne pas troubler l'ordre public et d'avoir une bonne conduite;
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FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5944-02
STYLE OF CAUSE: KHAC TAN HUYNH v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 19, 2003
REASONS FOR JUDGMENT
AND JUDGMENT BY: THE HONOURABLE MR. JUSTICE O'REILLY
DATED: December 10, 2003
APPEARANCES:
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FOR THE APPLICANT |
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FOR THE RESPONDENT |
SOLICITORS OF RECORD:
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Mr. Cecil L. Rotenberg and Mary Lam Barristers and Solicitors 1500 Don Mills Road, Suite 404 TORONTO, ON M3B 3K4 |
FOR THE APPLICANT |
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Deputy Attorney General Department of Justice TORONTO, ON |
FOR THE RESPONDENT |