Date: 20031120
Docket: IMM-5149-02
Citation: 2003 FC 1371
Toronto, Ontario, November 20th, 2003
Present: The Honourable Mr. Justice von Finckenstein
BETWEEN:
TRUONG DU DINH
Applicant
and
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
(Delivered orally from the bench and subsequently written and edited
for clarification and precision)
[1] This is a case of a case of a Vietnamese student who worked at a restaurant, while in Canada on a student visa.
[2] At an admissibility hearing, the Board found that the applicant had unlawfully worked in Canada and was, therefore, inadmissible pursuant to section 30(1) of the Immigration and Refugee Protection Act, R.S.C. 2001 c. 27 (Act). The applicant was issued with the exclusion order which is the subject of these proceedings.
[3] The applicant raises two issues in this judicial review. First, did the Board err in its interpretation of "work" as set out in the Act? Second, did the officer err by failing to take into account humanitarian and compassionate factors and the best interests of the child when making its inadmissibility finding?
[4] With regards to the first issue, the term "work" is defined in section 2 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (Regulations) as:
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...an activity for which wages are paid or commission is earned, or that is in direct competition with the activities of Canadian citizens or permanent residents in the Canadian labour market.
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Activité qui donne lieu au paiement d'un salaire ou d'une commission, ou qui est en concurrence directe avec les activités des citoyens canadiens ou des résidents permanents sur le marché du travail au Canada.
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[5] I am not prepared to draw a distinction between full-time work for which a regular wage is earned and part-time work which is completed for some other form of compensation as requested by the applicant.
[6] Section 2 of the Regulations provides a comprehensive definition of work which clearly includes most activities for which compensation is provided. In this case, the applicant worked in a restaurant for which he received a regular amount of money each month. This activity clearly falls within the definition of work which is set out in the Act.
[7] With regards to the second issue, section 45 of the Act authorises the Board to make a removal order once it finds that an applicant is inadmissible to Canada. The Board has no authority to take into account humanitarian and compassionate considerations when determining whether the applicant is inadmissible or not. These types of issues should be raised in a humanitarian and compassionate application or at a PRRA hearing.
ORDER
THIS COURT ORDERS that the application is dismissed.
"K. von Finckenstein"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5149-02
STYLE OF CAUSE: TRUONG DU DINH
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: NOVEMBER 18, 2003
REASONS FOR ORDER
AND ORDER BY: von FINCKENSTEIN J.
DATED: NOVEMBER 20, 2003
APPEARANCES BY:
Mr. Stanley C. Ehrlich FOR THE APPLICANT
Mr. Gordon Lee FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Stanley C. Ehrlich
Barrister & Solicitor
Thornhill, Ontario FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENT
FEDERAL COURT
TRIAL DIVISION
Date: 20031120
Docket: IMM-5149-02
BETWEEN:
TRUONG DU DINH
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
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