Date: 20041119
Docket: IMM-4024-04
Citation: 2004 FC 1629
BETWEEN:
THI LAN HUONG NGUYEN
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
HARRINGTON J.
[1] A few years ago, Ms. Nguyen's life was in shambles. She was, and still is, in Canada illegally. She was, and still is, subject to a deportation order. She fell in love with a drunk and a drug addict. Both ran up criminal records. She was witness to a murder. Her first two children were taken away from her by the Province of British Columbia and have been adopted. Now, and one can only hope forever, she has seen the light. She and her man married. He is now clean and employed. They had two more children who, although taken away at birth, have now been returned to them. She is a homemaker. Her children benefit from considerable community support.
[2] She has tried, without success, to regularize her situation in Canada. She came from Vietnam on a student visa. Although she did not claim refugee status, she applied for protection here by way of a pre-removal risk assessment ("PRRA") pursuant to section 112 of the Immigration and Refugee Protection Act, 2001 S.C. c. 27. She was turned down.
[3] She asked the Minister to examine the circumstances of her case and to allow her to stay on humanitarian and compassionate grounds. Again she was turned down. This is a judicial review of that decision.
[4] I granted the application for judicial review from the Bench yesterday. These are the reasons I said I would issue.
[5] Several grounds were advanced in support of her application. I need only focus on one. Section 25 of the Act deals with humanitarian and compassionate considerations. It requires the Minister to take into account the best interests of children directly affected. Although the Minister's officer was clearly in good faith, her conclusion is so unreasonable that I can only conclude that she was not, to use those now famous words in Baker v. Minister of Citizenship and Immigration, [1999] 2 S.C.R. 817, "alert, alive and sensitive" to the children's best interests.
[6] This family obviously needs a lot of help, and is responding to the services available to them in Vancouver. Apart from the ever-watchful eye of the child welfare authorities (in this case Big Brother is a good thing), the children, who are still very young, benefit from the loving, stable relationship of their parents, as well as community support through their church, participation in a "Building Blocks" program which provides support to Vietnamese parents, and a "Mother Goose" program for mothers and their children.
[7] The burden was on Ms. Nguyen to bring forth facts which would support her application (Hawthorne v. Canada (Minister of Citizenship and Immigration), [2003] 2 F.C. 555; Owusu v. Canada (Minister of Citizenship and Immigration), [2004] 2 F.C.R. 635; 2004 FCA 38. Counsel for the Minister rightly pointed out that the Officer can hardly be blamed for not considering points which were not argued before her, but only before this Court. However, there was ample evidence before her with respect to the children, the precarious life they have led, as well as their current good times.
[8] The Officer pointed out that Ms. Nguyen brought the situation upon herself. That is true, but I am afraid she treated the children as part of a template without taking their unique circumstances into consideration.
[9] As to the "best interests of the child" I can do no better than to quote from Hawthorne, supra. Décary J.A. said:
[4] The "best interests of the child" are determined by considering the benefit to the child of the parent's non-removal from Canada as well as the hardship the child would suffer from either her parent's removal from Canada or her own voluntary departure should she wish to accompany her parent abroad. Such benefits and hardship are two sides of the same coin, the coin being the best interests of the child.
[10] In this case, the children are too young to have any mind of their own as to whether they wish to accompany their mother to Vietnam or remain with their single father who, being separated from his wife, might jump back into a gin bottle. If they accompanied Ms. Nguyen the Officer was satisfied that her family members would be of assistance in re-settling and that the children, being too young to have formed ties with any country, would easily fit into life in Vietnam. Furthermore, the father, who is a Canadian citizen, could possibly join them.
[11] There was absolutely no consideration given to what community support would be available to a deportee and her children in Vietnam. As the poet said, "no man is an island, entire of itself". Julia is three and Jordan is two. They are less "entire" than other children. They are especially vulnerable. They are Canadians, and British Columbians. They need the support of their parents who, in turn, need the support of local government and the local community. To continue along the lines of John Donne, Thi Lan Huong Nguyen's deportation would not only diminish them but would diminish us all.
[12] The matter is to be referred back to another officer for redetermination.
(Sgd.) "Sean Harrington"
Judge
Vancouver, BC
November 19, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4024-04
STYLE OF CAUSE: THI LAN HUONG NGUYEN v. THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: November 18, 2004
REASONS FOR ORDER: HARRINGTON J.
DATED: November 19, 2004
APPEARANCES:
Mr. Andrew Z. Wlodyka FOR APPLICANT
Ms. Brenda Carbonell FOR RESPONDENT
SOLICITORS OF RECORD:
Lowe & Company FOR APPLICANT
Vancouver, BC
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Ottawa, ON
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