Federal Court Decisions

 

 

 

Date: 20070316

Docket: IMM-1964-06

Citation: 2007 FC 290

Ottawa, Ontario, March 16, 2007

PRESENT:     The Honourable Madam Justice Heneghan

 

BETWEEN:

TRAN NGUYEN LONG DANG

Applicant

and

 

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

 

 

REASONS FOR ORDER AND ORDER

 

I.  Introduction

 

[1]               Mr. Tran Nguyen Long Dang (the “Applicant”) seeks judicial review of the decision made on February 28, 2006 by Immigration Officer Lorie Jane Turner (the “Immigration Officer”) at the High Commission of Canada in Singapore. In that decision, the Immigration Officer determined that the Applicant was ineligible to come to Canada either as a member of the Federal Economic Class, pursuant to Part 6, Division 1 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the “Regulations”) or on humanitarian and compassionate (“H&C”) grounds, pursuant to subsection 25(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”).

 

II.  Background

 

[2]               The Applicant was born in Vietnam in 1981. Between 1990 and 1994, he lived in a refugee camp in Thailand with his mother. The identity of his biological father is unknown.

 

[3]               The Applicant currently resides in Vietnam. There is some uncertainty in the record regarding whether he lives with his grandmother or lives on his own, but according to the Computer Assisted Immigration Processing System (“CAIPS”) notes, the Applicant rents a room in his grandmother’s house along with the Applicant’s aunt, her husband and her children live in the grandmother’s house.

 

[4]               The Applicant has eight years of schooling. As well, he has received training as a motorcycle mechanic and has some experience working as a barber. At the time of his application, he was volunteering as a part-time security guard.

 

[5]               The Applicant’s mother married Tran Khiem Tu in June 2000. Under his sponsorship, the Applicant’s mother and stepbrother landed in Canada on May 2, 2002. The Applicant was ineligible under the former Immigration Regulations, 1978, SOR/78-172 to be sponsored because he was over the age of 19 years and not attending school on a full-time basis, at the time. The corresponding age limit in the current Regulations is 22 years of age.

 

[6]               In July 2003, the Applicant applied to come to Canada as a member of the Federal Economic Class, pursuant to Part 6, Division 1 of the Regulations. As well, he requested that his application be assessed on H&C grounds pursuant to subsection 25(1) of the Act.

 

[7]                By letter dated February 28, 2006, the Immigration Officer refused the Applicant’s application. She concluded that he did not qualify as a member of the Federal Economic Class and further, that there were insufficient H&C considerations present to justify a positive exercise of her discretion pursuant to subsection 25(1) of the Act. The relevant portion of her decision is set out as follows:

 

I am of the opinion that humanitarian and compassionate considerations do not justify granting you permanent residence of an exemption from any applicable criteria or obligation under the Act. I have formed this opinion because there is little evidence of you experiencing undue hardship in your country of citizenship, Vietnam. You are now 24 years of age. I note that you have access to vocational training – you have trained both as a motorcycle mechanic and as a barber in addition to taking secondary school courses. You have employment. You have housing. You reside with your grandmother and other extended family members. Your mother and her husband in Canada provide you with financial support. I can appreciate that you miss your mother and your step-brother, but this is insufficient in my view to exempt you from the usual selection criteria. You claim emotional hardship arising out of separation from your mother and step-brother but I do not find this hardship to be undue.

 

As a result, I am refusing your request for consideration under this provision of the Act.

 

III.  Issues

 

[8]               The Applicant does not challenge the Immigration Officer’s finding that he did not qualify to come to Canada as a member of the Federal Economic Class. Rather, this application for judicial review focuses upon the rejection of his application on H&C grounds.

 

[9]               This application raises two issues:

 

a.       What is the applicable standard of review?

b.      Did the Immigration Officer err in declining to exercise her discretion to grant the application on H&C grounds?

 

[10]           In the present case, the Applicant argues that the Immigration Officer erred by failing to recognize the extent of the importance that Parliament has ascribed to the achievement of family reunification in the context of assessing “hardship” in an H&C application. He further suggests that the Immigration Officer was required to be “alive and alert” to the family considerations that exist in his case, in light of the importance given to the objective of family reunification under the Act, as emphasised in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at para. 72.

 

[11]           The Applicant referred to certain guidelines that he says are relevant to his circumstances, including the “Last Remaining Family Member” contained in Policy IS 1.17. He submits that this Policy was explained in the decision in Sitaruf v. Canada (Minister of Citizenship and Immigration) (1995), 98 F.T.R. 301 and Regina v. Codina (1995), 95 C.C.C. (3d) 311 (Ont. C.A.).

 

[12]           He further submits that in 1999 the “Last Remaining Family Member” Policy was subsumed by the “de facto” family member policy contained in chapter 4 of Citizenship and Immigration Canada’s Overseas Processing Manual. While the Applicant acknowledges that the gidelines are not law, he suggests that they indicate the criteria that an officer should take into account in the type of circumstances that prevail here.

 

[13]           He argues that the objective of family reunification has been expressly included in legislation by Parliament. In this regard, he refers to subsection 3(c) of the former Immigration Act, R.S.C. 1985, c. I-2, as amended, which outlined one of this statute’s objectives as being the reunification of Canadian citizens and permanent residents with close relatives from abroad. He refers as well to subsection 3(d) of the Act which identifies family reunification as an objective of the current legislation.

 

[14]           The Applicant then argues that there is a legitimate expectation that H&C decisions made by immigration officers are decisions of the “heart” and, relying on the decision in Chirwa v. Canada (Minister of Citizenship and Immigration), [1970] I.A.B.D. No. 1, the Applicant argues that the Immigration Officer failed to demonstrate a humanitarian and compassionate approach to his application and further that she erred by failing to state the criteria upon which her H&C decision was made.

 

[15]           The Applicant further submits that in making an H&C decision, an immigration officer is required by the doctrine of legitimate expectation to analyse all of the information put forward by an applicant. He said that the decision in the present case is lacking in that the Immigration Officer failed to analyse, among other things, the framework of family reunification and the child-parent relationship in the context of the “tragedy of their background”, by taking into account all of the significant events that had occurred in the parting of the Applicant from his mother.

 

[16]           The Minister of Citizenship and Immigration (the “Respondent”) argues that the Immigration Officer considered all of the evidence before her and weighed the relevant factors. He submits that there are no grounds upon which this Court can intervene in the decision under review.

 

[17]           The Respondent further argues that the Applicant is not entitled to rely on the de facto family members’ policy because this policy is no longer in effect. In any event, the Respondent submits that the present decision is a straightforward H&C decision made pursuant to subsection 25(1) of the Act and that the relevant policy is section 8.3 of the Overseas Processing Manual (the “Manual”) concerning H&C applications. According to the Respondent, this Manual can be considered a useful guide as to what constitutes a reasonable interpretation of a statutory power but further states that the guidelines are not binding upon immigration officers. In this regard, the Respondent refers to Baker at paras. 16 and 17 and the decision of the Federal Court of Appeal in Legault v. Canada (Minister of Citizenship and Immigration) (2002), 212 D.L.R. (4^th) 139 (Fed. C.A.).

 

[18]           In paragraph 10 the Respondent says that section 8.3 of the Manual identifies de facto family members as those persons who do not meet the family class definition but who are nonetheless a de facto member of a nuclear family that is either in Canada or seeking to immigrate to Canada, where that de facto membership arises from a situation of dependence. Relevant considerations under section 8.3 of the Manual, according to the Respondent, include whether the dependency is bona fide, the level of dependency, the stability and length of the relationship, the impact of separation, financial and emotional needs of the Applicant, documentary evidence about the relationship, and any other factors that are considered relevant to the H&C decision.

[19]           The Respondent argues that in the present case, the CAIPS notes indicate that the Immigration Officer considered relevant factors, including the following:

•           The Applicant’s mother and step-brother live in Canada, having moved here without the Applicant;

•           The Applicant could not immigrate to Canada at the time of his application as a member of the Family Class because he was over the age of dependency;

•           The Applicant has some emotional dependency on, and misses, his mother and step-brother;

•           The Applicant receives financial assistance from his mother and his step-father;

•           The Applicant has no siblings in Vietnam.

•           The Applicant rents a room from his grandmother. The Respondent suggests that the apparent error regarding the Applicant’s living arrangements alluded to in the affidavit of the Applicant’s mother is of no consequence here since it does not change the evidence that was before the Officer, and since the Applicant is not claiming that his lawyer was incompetent or negligent. It says that this Court must consider the evidence that was before the Officer. If the Applicant feels that his situation has changed or that his case could be better presented, it says that he can file a new H&C application for permanent residence;

•           The Applicant’s mother and step-father are employed in Canada;

•           The Applicant is working part-time as a barber and volunteers in the evenings as a security guard;

•           The Applicant has received some schooling and has upgraded his employment skills; and

•           The Applicant’s aunt, uncle and their children also live at the house of the Applicant’s grandmother.

[20]           The Respondent argues that the Immigration Officer properly considered these factors and concluded that there was little evidence of undue hardship warranting exemption from the usual selection criteria.

IV.  Analysis

[21]           The Aplicant here challenges the manner in which the Immigration Officer failed to exercise the discretion conferred by subsection 25(1) of the Act. The general rule for immigration into Canada is set out in subsection 11(1) of the Regulations, as follows:

 

 

[22]           Subsection 25(1) of the Act authorizes the Minister to grant permanent resident status or an exemption from any applicable criteria or obligation under the Act on H&C grounds. Subsection 25(1) provides as follows:

 

[23]           Subsection 3(1)(d) of the Act provides that one of the statutory objectives is the reunification of families, as follows:

 

 

[24]           These legislative provisions provide a context in which the challenged decision was made. Two questions are to be addressed in deciding this application for judicial review. The first concerns the applicable standard of review and the second, whether the Immigration Officer committed a reviewable error.

[25]           In a recent decision in Liang v. Canada (Minister of Citizenship and Immigration), 2006 FC 967, Justice Dawson, in a similar matter, determined that the applicable standard of review was reasonableness simpliciter. She said the following at paragraph 7:

 

 In Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 the Supreme Court reviewed the decision of a delegate of the Minister of Citizenship and Immigration to reject an application for landing on the basis of humanitarian and compassionate grounds made under the previous immigration act (R.S.C. 1985, c. I-2). Having regard to the fact-specific nature of the inquiry, its role within the statutory scheme, the fact that the decision-maker is the Minister (or his delegate) and the considerable discretion conferred upon the Minister, the Court concluded that the appropriate standard of review was reasonableness simpliciter. That analysis is, in my view, equally applicable to the present legislative scheme.

 

[26]           In my opinion, the same standard of review should apply in this case, that is reasonableness simpliciter. At paragraph 8 in Liang, Justice Dawson described this standard of review as follows:

 

In Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., [1997] 1 S.C.R. 748 at paragraph 56, the Supreme Court held that an unreasonable decision is one that "in the main" is not supported by reasons that can stand up to a "somewhat probing examination". Thus, a court reviewing a decision on the reasonableness standard must ascertain whether the reasons given by the decision-maker support the decision. A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the decision-maker from the evidence to the conclusion. A decision may be reasonable "if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling". See: Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 at paragraph 55.

 

 

[27]           I agree with the submissions of the Respondent that the “Last Remaining Family Member” policy is not relevant to the within application, whereas section 8.3 of the Manual is relevant. In my opinion, the Immigration Officer properly considered the relevant factors set out in the Manual in assessing the Applicant’s H&C application for permanent residence. I am satisfied that no breach of procedural fairness was committed and that the Immigration Officer adequately set out the basis of her decision.

[28]           In these circumstances, and having regard to the record before me, there is no basis for judicial intervention.

 

[29]           Counsel for the Applicant submitted two questions for certification pursuant to subsection 74(d) of the Act. Counsel for the Respondent submitted a letter, objecting to certification of the proposed questions.

 

[30]           In my opinion, the within application turns upon the facts presented. There is no serious question of general importance arising and accordingly, no question will be certified.

 

[31]           This application for judicial review is dismissed, no question for certification arising.

 

ORDER

 

            This application for judicial review is dismissed, no question for certification arising.

 

 

“E. Heneghan”

 

FEDERAL COURT

                                                                

NAMES OF COUNSEL AND SOLICITORS OF RECORD

 

 

 

 

DOCKET:                                          IMM-1964-06

 

STYLE OF CAUSE:                          Tran Nguyen Long Dang and The Minister of Citizenship and Immigration

 

 

PLACE OF HEARING:                    Toronto, Ontario

 

DATE OF HEARING:                      March 1, 2007

 

REASONS FOR ORDER

AND ORDER:                                   HENEGHAN J.

 

DATED:                                             March 16, 2007

 

 

 

APPEARANCES:

 

Mr. Cecil Rotenberg, Q.C.	FOR THE APPLICANT
Ms. Rhonda Marquis	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

Cecil L. Rotenberg, Q.C.	FOR THE APPLICANT
John H. Sims, Q.C. Deputy Attorney General of Canada	FOR THE RESPONDENT