Date: 20100601
Docket: IMM-5042-09
Citation: 2010 FC 569
Ottawa, Ontario, June 1, 2010
PRESENT: The Honourable
Mr. Justice Pinard
BETWEEN:
Kok Hung
WONG
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This is an application for judicial review of a decision,
dated July 21, 2009, of a pre-removal risk assessment officer (the officer) under
subsection 72(1) of the Immigration and Refugee Protection Act, S.C.
(2001), c. 27 (the Act), by Kok Hung Wong (the applicant). The officer rejected
the applicant’s application for permission to apply for permanent resident
status from within Canada on
humanitarian and compassionate grounds (‘‘H&C application’’).
[2]
The
applicant is a citizen of Malaysia. He entered Canada as a visitor
in 1998. In 2000, he claimed refugee protection. This claim was rejected in
2001, on the ground that the applicant was not credible. Following the
rejection of an H&C application and of an application for a pre-removal
risk assessment, he left Canada on January 22, 2002.
[3]
He
returned to Canada on April 30
of that year and immediately claimed refugee protection. This new claim for
refugee protection was rejected in June 2003, once again on the ground that the
applicant was not credible. An application for leave and judicial review of
that decision was also dismissed. On March 31, 2008, the applicant submitted an
H&C application, the refusal of which is the subject of his current
application for judicial review.
[4]
That
H&C application was based on his establishment in Canada and on the
risk he claims he would face if he were to return to Malaysia because of
his homosexuality.
[5]
After
the officer rendered a negative decision with regard to his H&C application,
and following the rejection of an application for a pre-removal risk assessment
that had been submitted at the same time, the applicant met with an immigration
officer who gave him until November 30, 2009, to leave Canada.
[6]
On
October 13, 2009, a notice to appear at a meeting with immigration authorities
on October 20 was personally given to the applicant. The applicant
did not attend this meeting. Several telephone calls went unanswered.
[7]
On
November 6, 2009, a warrant for the applicant’s arrest was issued. At the time
of the hearing before me, the applicant had yet to appear and the warrant was
still outstanding.
[8]
The
respondent submits that the applicant, having excluded himself from the
Canadian immigration system, does not have clean hands and that the Court
should refuse to help him and dismiss his application outright without
considering its merits.
[9]
Counsel
for the applicant responded that, in a judicial review, the situation should be
assessed at the time the application was submitted and that events that
occurred after the decision under review ought not be taken into account. On
the date of the decision as well as the date on which the current application
for judicial review was submitted, the applicant’s hands were clean.
[10] I agree with
the respondent. The Court, in a similar case, dismissed the application for
judicial review in E.L.D. v. The Minister of Citizenship and Immigration,
2005 FC 1475. Recalling the old adage ‘‘he who has committed Iniquity ... shall
not have Equity’’ (Jones v. Lenthal (1669) 1 Ch. Ca. 154),
Justice Max M. Teitelbaum opined, at paragraph 56, that ‘‘[s]ince the applicant
is adamantly seeking judicial review, her conduct is relevant and must be
beyond reproach’’. When a person who is applying for judicial review of an
administrative decision does not have clean hands, ‘‘this in itself warrants
the dismissal of the application for judicial review’’. There is nothing in
Justice Teitelbaum’s reasons that would lead one to believe that the applicant
in that case had gone into hiding before the decision for which she was seeking
judicial review was rendered.
[11] In fact, the
applicant’s conduct must be assessed in light of the clean hands
doctrine at the moment when the application for judicial review is before the
Court. The application of the doctrine flows from the Court’s discretionary
power, and not from that of an administrative decision-maker. In Canadian
Pacific Ltd v. Matsqui Indian Band, [1995] 1 S.C.R. 3, at paragraph 30,
Chief Justice Lamer explained that when a person submits an application for
judicial review, it
does not mean, however, that they have a
right to require the court to undertake judicial review. There is a
long-standing general principle that the relief which a court may grant by way
of judicial review is, in essence, discretionary. This principle flows from the
fact that the prerogative writs are extraordinary remedies. The extraordinary
and discretionary nature of the prerogative writs has been subsumed within the
provisions for judicial review set out in s. 18.1 of the Federal Court Act.
. . .
[12] The Court’s
decision regarding whether or not to undertake judicial review, and any
decision made as a result of having undertaken judicial review, are therefore
distinct. It would be absurd if, when exercising its discretionary power and deciding
whether or not to undertake judicial review, a court could not consider all
of the relevant facts, including, as in this case, the applicant’s conduct
between the date of the administrative decision and that of the judicial
review. However, having decided to undertake judicial review, the Court must
confine itself to the facts on which the administrative decision was made –
except in cases where either the decision-maker’s jurisdiction or the fairness of
the administrative procedure is called into question.
[13] Therefore, I
find that the applicant does not have clean hands and, consequently, his
application must be dismissed.
[14] For all of
the foregoing reasons, the application for judicial review is dismissed.
[15] The applicant
proposes the following question for certification:
[translation]
When an application for leave is duly
authorized by a Federal Court judge with regard to a specific decision, and no
new facts are raised between the granting of leave and the judicial review, in
light of the mandatory provisions of section 74 of the IRPA and the provisions
of the Federal Courts Act, does the Federal Court judge hearing the case
have the authority to refuse to hear the case by claiming the existence
of the clean hands doctrine applicable in common law?
If so, would the situation remain the
same if the setting aside of the decision under review rendered null and void
the allegations against the applicant that would justify the application of the
clean hands doctrine and would the applicant then have the right to
challenge the allegations made against him before the judgment is delivered?
[16] In my view,
this is not a serious question of general importance or one that would be
determinative of the appeal. The requested certification is therefore refused.
In so doing, I am adopting the line of reasoning expressed by counsel for the
respondent in her letter to the Court, dated May 13, 2010, in response to the
proposed question for certification submitted by the applicant’s counsel. This
line of reasoning is correctly based on the following Federal Court of Appeal
decisions: Varela v. Canada (M.C.I.) (2009), 391 N.R. 366; Liyanagamage
v. Canada (M.C.I.) (1994), 176
N.R. 4; Thanabalasingham v. Canada (M.C.I.) (2006), 345 N.R. 388, and Deng
Estate v. The Minister of Public Safety and Emergency Preparedness, 2009
FCA 59.
[17] The question
proposed by the applicant is therefore not certified.
JUDGMENT
The
application for judicial review of the decision, dated July 21, 2009, of a
pre-removal risk assessment officer rejecting the application for permission to
apply for permanent resident status from within Canada on humanitarian and compassionate grounds is dismissed.
‘‘Yvon
Pinard’’
Certified
true translation
Sebastian
Desbarats, Translator
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