Date: 20000529
Docket: IMM-4838-98
BETWEEN:
HOAI THANH PHAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON, J.:
[1] These reasons arise out of an application for judicial review of a decision of a visa officer at the Canadian Embassy in Bonn, Germany wherein the visa officer rejected the applicant"s application for permanent residence in Canada as a Convention refugee seeking resettlement and advised the applicant that:
| It also appears that you would not meet the requirements for any other immigration category at this time. |
[2] The letter conveying the visa officer"s decision to the applicant is dated the 31st of March, 1998.
[3] The applicant is a 37 year old citizen of Vietnam who, at the time of the decision here under review, was resident with his wife and one child in Germany. He originally left Vietnam in 1980, with the sponsorship of the Vietnamese government, to pursue a training course in Czechoslovakia. He successfully completed the training course and undertook employment in Czechoslovakia.
[4] In 1991, the applicant returned to Vietnam on a holiday. He took with him to Vietnam a quantity of pro-democracy leaflets. He engaged in political discussions in Vietnam with those he considered to be his friends and shared the pro-democracy leaflets with them. Apparently, one of the persons whom the applicant engaged in discussion informed on him to Vietnamese officials. The applicant was arrested and detained for some two weeks. He was interrogated and beaten. The leaflets were apparently not recovered by the Vietnamese authorities. He was eventually provisionally released. Rather than face trial in respect of alleged "propaganda activities...against the guidelines of the party and the government", he took advantage of pre-arranged air travel and returned to the Czech Republic.
[5] The applicant feared that Czech authorities would return him to the hands of Vietnamese authorities. In the result, together with his wife, he left the Czech Republic and entered Germany, illegally, crossing the border on foot.
[6] The applicant was denied Convention refugee status in Germany. While awaiting an appeal of that decision, he submitted his application for permanent residence in Canada as a Convention refugee seeking resettlement as well as an application for admission to Canada in the independent category. His efforts to come to Canada were supported by sponsorship from the Mennonite Church in Calgary.
[7] In the letter conveying to the applicant the decision here under review, the visa officer wrote:
| After carefully and sympathetically assessing all factors relative to your application [for permanent residence in Canada as a Convention refugee seeking resettlement], I have determined that you do not meet [the] definition [of Convention refugee in the Immigration Act] because you were not able to provide evidence that you would have reason to fear persecution,...if you were to return to your country of nationality. The information you provided was not consistent with objectively verified information regarding conditions in Vietnam for its returning residents. A senior immigration officer has concurred in this decision. |
| ...It also appears that you would not meet the requirements for any other immigration category at this time. |
[8] The applicant did not file his own affidavit in support of this application for judicial review. Similarly, the respondent filed no affidavit. In the result, the Court was left to determine the application for judicial review essentially on the basis of the tribunal record1.
[9] The CAIPS notes in relation to the applicant"s applications appear at pages 1 to 4 of the tribunal record and are followed at pages 5 and 6 by the rejection letter quoted in part earlier in these reasons. The notes would appear to indicate that the applicant"s application for permanent residence in Canada in the independent category was received on the 23rd of August, 1996 although that application, which also appears in the tribunal record, would appear to be dated the 1st of October, 1996. The application for permanent residence in Canada in the independent category would appear to have gone completely unassessed. By contrast, the application for permanent residence in Canada as a Convention refugee seeking resettlement was assessed following an interview, apparently conducted on the 4th of February, 1998. The assessment is in part in the following terms:
| There are real problems with subject"s account [of the basis of his claim]. To be chosen by the government to study abroad has always been highly sought after among students from all over the world but particularly in developing countries. To be chosen from a country such as Vietnam to go study in then communist Eastern Europe would mean that you were very privileged and highly trusted. His [the applicant"s] account of his arrest is also questionable. The fact that he had been abroad would be of interest to the police yet they did not insist on seeing his passport nor did they attempt to prevent his travel by ensuring they had the passport prior to his release. If as he said controls were lax at the airport, it is hard to believe that the Vietnamese would then go to the trouble of coordinating with the Czechs for his return. It is doubtful that he was that important to them. |
| More generally, in recent years there has been an opening up in Vietnam and former refugees from the Communist regime who went to places such as the U.S. have been returning to Vietnam to visit and do business, which is a reflection of a growing confidence in Vietnam"s respect for human rights. There is a wide spread programme by the UNHCR of returning refugees in camps to Vietnam and though they often go by force (and thus publicly displaying their reluctance to return to Communist Vietnam), there do not seem to be any problems for them on return. This has been monitored by the international community and now even Germany has an accord with Vietnam for return of nationals and the safeguarding of their rights on return. More specifically, the subject"s claim is not sound for the specific reasons specified above. He was allowed to leave on his own passport. There was no attempt to restrict his movement after his alleged confinement. The subject is not eligible as a Convention refugee. |
[10] The CAIPS notes indicate that the foregoing analysis was concurred in by another officer, presumably the senior immigration officer referred to in the quotation above from the letter of refusal.
[11] Whatever the merits of the applicant"s claim to status as a Convention refugee seeking resettlement in Canada, I am satisfied that the decision letter, when read together with the CAIPS notes as quoted above, reflects reviewable error.
[12] I am prepared to accept that the applicant could reasonably have been regarded as "...very privileged and highly trusted..." at the time he was selected for a sponsored training and employment opportunity in Eastern Europe. But that was in 1980 when conditions in Eastern Europe were very different. Thereafter and before the applicant returned to Vietnam in 1991, political conditions in Eastern Europe changed dramatically. The applicant could not help but have been exposed to those changes and it is unreasonable to surmise that he would be influenced by them in a manner that would adversely impact his view of the regime in Vietnam.
[13] It was apparently not disputed that the applicant carried pro-democracy literature with him when he returned to Vietnam. It was apparently not disputed that he was arrested when he was in Vietnam. No reference is made in the CAIPS notes to the fact that he was charged with an offence that carried with it a term of imprisonment of 12 years on conviction. The ease with which the applicant apparently fled to Vietnam while still facing charge and on only provisional release from detention was reasonably open to question by the visa officer, but not without putting that concern in context.
[14] For the visa officer to equate the return of this applicant to Vietnam with that of others from "...places such as the U.S...." and from refugee camps, was to ignore the special circumstances in which this applicant first left Vietnam as a privileged and "highly trusted" individual, experienced the dramatic political changes in Eastern Europe, and later fled Vietnam while under charge and on provisional release.
[15] Further, to indicate on the face of the decision letter that the information provided by the applicant "...was not consistent with objectively verified information regarding conditions in Vietnam for its returning residents..." without identifying the sources of that "objectively verified information" and providing the applicant an opportunity to respond to that information against his particular circumstances, constituted a denial of natural justice or fairness. There is no place on the face of the tribunal record to which the Court was directed that would indicate that an opportunity to review that material and to respond to it was provided.
[16] The failure to assess the applicant"s application for permanent residence in Canada in the independent category, notwithstanding the obligation imposed by subsection 8 (1) of the Immigration Regulations , 19782, without explanation on the face of the tribunal record and without explanation provided in an affidavit of the visa officer constitutes an error of law appearing on the face of the record before the Court. The remarkably cursory dismissal of that application on the face of the decision letter, as quoted earlier in these reasons, in no sense relieves the respondent of the responsibility imposed by subsection 8 (1) of the Regulations. It may be that a rational explanation for the failure to consider the applicant"s application for permanent residence in Canada in the independent category existed at the time of the decision under review but any such explanation is nowhere evident on the face of the record before the Court.
[17] For the foregoing reasons, this application for judicial review will be allowed and the applicant"s applications for permanent residence in Canada as a Convention refugee seeking resettlement and as an independent applicant will be referred back to the respondent for reassessment and redetermination by a different officer or officers.
[18] Neither counsel recommended certification of a question on the basis of the Court"s decision herein. No question will be certified.
_____________________________
J.F.C.C.
Ottawa, Ontario
May 29, 2000
__________________
1 See Moldenenau v. Canada (Minister of Citizenship and Immigration), (1999), 235 N.R. 192 (F.C.A.) where Mr. Justice Décary wrote at paragraph 15: "...There is, in our view, much wisdom in the practice suggested by the court in Wang v. Minister of Employment and Immigration ... and adopted by the judges of the Trial Division to require the evidence of the intended immigration himself in matters related to visa officers" decisions "unless the error said to vitiate the decision appears on the face of the record". [citation omitted]
2 S.O.R./78-172. Subsection 8 (1) of the Regulations reads as follows:
| 8. (1) Subject to section 11.1, for the purpose of determining whether an immigrant and the immigrant's dependants, other than a member of the family class, a Convention refugee seeking resettlement or an immigrant who intends to reside in the Province of Quebec, will be able to become successfully established in Canada, a visa officer shall assess that immigrant or, at the option of the immigrant, the spouse of that immigrant(a) in the case of an immigrant, other than an immigrant described in paragraph (b) or (c), on the basis of each of the factors listed in column I of Schedule I;(b) in the case of an immigrant who intends to be a self-employed person in Canada, on the basis of each of the factors listed in Column I of Schedule I, other than the factor set out in item 5 thereof;(c) in the case of an entrepreneur, an investor or a provincial nominee, on the basis of each of the factors listed in Column I of Schedule I, other than the factors set out in items 4 and 5 thereof;... |
8. (1) Sous réserve de l'article 11.1, afin de déterminer si un immigrant et les personnes à sa charge, à l'exception d'un parent, d'un réfugié au sens de la Convention cherchant à se réinstaller et d'un immigrant qui entend résider au Québec, pourront réussir leur installation au Canada, l'agent des visas apprécie l'immigrant ou, au choix de ce dernier, son conjoint :a) dans le cas d'un immigrant qui n'est pas visé aux alinéas b) ou c), suivant chacun des facteurs énumérés dans la colonne I de l'annexe I;b) dans le cas d'un immigrant qui compte devenir un travailleur autonome au Canada, suivant chacun des facteurs énumérés dans la colonne I de l'annexe I, autre que le facteur visé à l'article 5 de cette annexe;c) dans le cas d'un entrepreneur, d'un investisseur ou d'un candidat d'une province, suivant chacun des facteurs énumérés dans la colonne I de l'annexe I, sauf ceux visés aux articles 4 et 5 de cette annexe;
... |
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