Docket: IMM-262-16
Citation:
2016 FC 824
[ENGLISH
TRANSLATION]
Ottawa, Ontario, July 19, 2016
PRESENT: The Honourable Mr. Justice Shore
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BETWEEN:
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TUYEN PHAM
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Applicant
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and
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THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application for judicial review under
subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA], of a decision by the Minister's delegate to
defer an Inadmissibility Report [Report] prepared in accordance with
subsection 44(1) of the IRPA to the Immigration Division [ID] of the
Immigration and Refugee Board, under subsection 44(2) of the IRPA.
II.
Facts
[2]
The applicant, Tuyen Pham (37 years
old), is a stateless person. He has been a permanent resident of Canada
since 1991. He fled Vietnam with his parents at age 3, and has since
never returned. He is the father of three minor children who are Canadian
citizens.
[3]
The applicant has a considerable criminal
history. In May 2001, the applicant was found guilty of possession of a
listed substance (cocaine) for the purpose of trafficking, contrary to
subsection 5(2) of the Controlled Drugs and Substances Act,
SC 1996, c 19 [CDSA]. A deportation order was issued against the
applicant in September 2002. In a decision dated July 8, 2003,
the Immigration Appeal Division ordered a five-year stay of the removal order
for humanitarian and compassionate considerations.
[4]
On May 21, 2013, the applicant was found
guilty of possession of listed substances (marihuana) for the purposes of
trafficking, contrary to subsection 5(2) of the CDSA. On October 2,
2013, the applicant was sentenced to 12 months' imprisonment. On
January 13, 2014, a Report was prepared regarding the applicant, in
accordance with subsection 44(1) of the IRPA because the officer who wrote
the Report was of the opinion that the applicant was inadmissible on grounds of
serious criminality under paragraph 36(1)(a) of the IRPA. After
interviewing the applicant on January 14, 2014, the officer found that the
Report was well founded. On May 6, 2014, the applicant was
invited to make submissions, which were sent on June 23, 2014.
[5]
On September 17, 2015, the officer gave his
supervisor a summary of the facts and recommended that the case be referred to
the ID. The Assistant Director of the Canada Border Services Agency
Investigations and Removals Unit (Montréal) [Minister's delegate] decided to
refer the case to the ID for it to determine whether the applicant was
inadmissible in accordance with paragraph 36(1)(a) of the IRPA.
[6]
That decision is the subject of this judicial
review.
III.
Issues in dispute
[7]
The following issues in dispute are the subject
of this judicial review:
1.
Did the Minister's delegate err in his
assessment of the factors to take into consideration when determining whether
the case should be referred to the ID?
2.
Did the Minister's delegate err in his analysis
of the best interests of the children?
IV.
Positions of the Parties
[8]
The applicant argues that the Minister's
delegate erred by failing to weigh all of the relevant factors set out in the Enforcement
Manual – Chapter ENF 6: Review of reports under A44(1) [Manual].
In particular, the applicant argued that as a long-term permanent resident, the
Minister's delegate apparently should have paid special attention to his file
before it was referred to the ID. In this case, the Minister's delegate
allegedly erred by merely listing the factors to consider without assessing
them. Furthermore, the applicant argues that, the Minister's delegate failed to
take into account the best interests of the children in his reasons. In so
doing, the decision made by the Minister's delegate is unreasonable.
[9]
The respondent, however, argues that the
Minister's delegate considered all of the factors set out in the Manual in a reasonable
manner, even though it was not his duty to take them all into consideration in
light of his discretionary power (Spencer v. Canada (Citizenship and
Immigration), 2006 FC 990, at paragraph 15; Hernandez v.
Canada (Minister of Citizenship and Immigration), 2005 FC 429).
As regards the best interests of the children, the respondent claims that the
Minister's delegate was not required to be “alert,
alive and sensitive” to the best interests of the children directly
affected because it was not an application under subsection 25(1) of the
IRPA, as was the case in Kanthasamy v. Canada (Citizenship and Immigration),
[2015] 3 SCR 909, 2015 SCC 61 [Kanthasamy]. The
respondent also argues that in a follow-up done in accordance with
subsection 44(2) of the IRPA, the best interests of a child alone are not
a paramount consideration.
V.
Analysis
[10]
The applicant primarily maintains that the
decision-maker erred in exercising his discretion, by not considering all of
the relevant factors, and in his assessment of humanitarian and compassionate
considerations. These types of questions must be reviewed by this Court on the
standard of reasonableness (Balan v. Canada (Public Safety and Emergency
Preparedness), 2015 FC 691, at paragraph 19 [Balan]).
[11]
The key points of the applicant's claims are
that the Minister's delegate erred in exercising his discretion, by not
considering all of the factors set out in the Manual in his analysis, and by
failing to conduct a thorough analysis of the best interests of the child as
set out in Kanthasamy.
[12]
The scope of the discretionary power available
to the Minister's delegate to determine whether the case must be referred to
the ID is an issue that has not yet been resolved (Canada (Public Safety and
Emergency Preparedness) v. Tran, 2015 FCA 237, at
paragraph 12; Cha v. Canada (Minister of Citizenship and Immigration),
[2007] 1 FCR 409, 2006 FCA 126, at paragraph 41 [Cha];
Richter v. Canada (Citizenship and Immigration), 2008 FC 806,
at paragraph 14 [Richter], confirmed by Richter v. Canada (Public
Safety and Emergency Preparedness), 2009 FCA 73). Case law
acknowledges that the scope of the discretion available to the Minister's
delegate varies depending on the alleged reasons and whether the person
concerned is a permanent resident or a foreign national (Cha, above, at
paragraph 22; Richter, above, at paragraph 14). However, the
Minister's delegate's discretion is likely limited to subsection 44(2) of
the IRPA, given the detailed wording in section 36 of the IRPA (Balan,
above, at paragraph 25), even for permanent residents deemed inadmissible
on grounds of serious criminality in accordance with paragraph 36(1)(a)
of the IRPA (Balan, above, at paragraph 26).
[13]
In this case, it was not necessary to rule on
that question because the decision made by the Minister's delegate is
reasonable, regardless of the scope of his discretion.
[14]
In the handling of his file, the applicant could
reasonably expect that his application would be dealt with in accordance with
the process set out in the Manual (see Agraira v. Canada (Public Safety and
Emergency Preparedness), [2013] 2 SCR 559, 2013 SCC 36;
Canada (Citizenship and Immigration) v. Jayamaha Mudalige Don,
2014 FCA 4, at paragraph 52). In this regard, section 19.2
of the Manual – 19.2 A44(1) reports concerning permanent residents
of Canada, sets out a non-exhaustive list of factors that may be considered
in both criminal and non-criminal cases. That same section of the Manual also
states that the seriousness of the offence is an important consideration.
Section 19.3 of the Manual states that in the case of long-term permanent
residents, a decision to refer a case must be made at the manager or director
level in the region concerned. In this case, this process was followed, since
an assistant director agreed with the officer's recommendations in the record
to refer the case to the ID for investigation.
[15]
In this case, the applicant is mainly relying on
Faci v. Canada (Public Safety and Emergency Preparedness),
2011 FC 693 [Faci] to argue that the Minister's delegate erred
in not taking into consideration all of the factors set out in the Manual.
However, although there was a discrepancy regarding the scope of the Minister's
delegate's discretion, the decision relied on by the applicant to argue that
the Minister erred by not considering all of the factors set out in the Manual
specifically stated the opposite of what the applicant maintains:
[63] The jurisprudence of this Court
makes clear that, when deciding whether to recommend an admissibility hearing, the
Minister’s Delegate has the discretion, not the obligation, to consider the
factors set out in ENF 6. See Lee, above, at paragraph 44;
and Hernandez v. Canada (Minister of Citizenship and Immigration),
2005 FC 429, at paragraphs 22-23. The Minister’s Delegate in this
case reasonably concluded that country conditions need not be considered at
this stage of the process because a risk assessment would have to be done
before the Applicant could be removed. [My emphasis.]
(Faci, above, at paragraph 63)
[16]
In this case, the Minister's delegate's reasons
are sufficiently detailed to enable the Court to rule on the reasonableness of
its findings. In so doing, although the Minister's delegate did not analyze
each factor, his decision was reasonable because his reasons show that he took
them into consideration.
[17]
Second, as regards the applicant's arguments on
humanitarian and compassionate considerations, the Court dismisses them.
[18]
In deciding whether the case must be referred to
the ID, the Minister's delegate did not conduct an in-depth review of the
humanitarian and compassionate considerations. Therefore, although the
Minister's delegate is allowed a residual discretion to take into account
humanitarian and compassionate considerations (Balan, above, at
paragraph 27; Richter, above), the decision made by the Minister's
delegate under subsection 44(2) of the IRPA is not a full in-depth review
of the humanitarian and compassionate considerations (Faci, above, at
paragraph 25). Insofar as the Minister's delegate had this residual discretion,
he considered these reasons in a reasonable manner.
VI.
Conclusion
[19]
The Court finds that the decision made by the
Minister's delegate under subsection 44(2) is reasonable. Consequently,
the application for judicial review is dismissed.
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