Docket: IMM-21-17
Citation:
2017 FC 1064
Ottawa, Ontario, November 23, 2017
PRESENT: The
Honourable Mr. Justice Ahmed
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BETWEEN:
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DUY KHANH DO
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
This is an application pursuant to subsection
72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].
Mr. Duy Khan Do (the “Applicant”) had applied
from outside Canada for a permanent residence visa and an exemption to his
criminal inadmissibility on Humanitarian and Compassionate grounds under
subsection 25(1) of IRPA (the “H&C
Application”). An Immigration Officer of the High Commission of Canada
in Singapore (the “Officer”) rejected the
H&C Application in a decision made on November 18, 2016 (the “Decision”).
[2]
The Applicant and Respondent have both agreed
that this application should be returned for redetermination by a different officer.
[3]
Prior to leave being granted the Respondent
brought a motion requesting the judicial review be granted and the matter sent
for redetermination before a new decision-maker, with costs awarded against the
Applicant as he refused to discontinue the matter and consent to a
redetermination. This motion was dismissed on June 19, 2017 by Justice Heneghan
(2017 FC 608, unreported) with no order as to costs.
[4]
The Respondent chose not to file any materials
on leave, and the material filed in support of their motion did not particularize
any grounds for allowing it. In response to the finding of Justice Heneghan
that they failed to identify grounds for finding an error in the Officer’s Decision,
the Respondent now submits the Officer erred by: misinterpreting the research
studies cited; the Officer’s finding that the children would not suffer a
disadvantage by being raised by only their mother is not supported by the research
studies; the Officer did not conduct a fulsome analysis of the Best Interest of
the Children (“BIOC”); and, the Officer breached
the Applicant’s right to procedural fairness.
I.
Facts
[5]
Both the Applicant and his wife, Kim Yen Lieu,
are of Vietnamese descent and met in September 2010. They were married on
January 18, 2012, followed by both a traditional Vietnamese engagement ceremony
held February 12, 2012 and a wedding reception with many guests on March 31,
2012.
[6]
Two daughters were born to their marriage,
Madison born September 14, 2012 and Vivienne born March 5, 2015.
[7]
The Applicant came to Canada in 2005 under a
temporary resident visa to study and attended high school in Alberta, followed
by vocational training in meat cutting and CNC operation, eventually becoming
trained as a CNC technician. In addition to his wife and two daughters the
Applicant has a sister, aunt, uncle and cousins who reside in Alberta.
[8]
The Applicant was convicted on November 30, 2011
of trafficking in a controlled substance and possession of proceeds of crime under
$5,000, resulting in 22 months imprisonment. Due to these convictions the
Applicant was found inadmissible under paragraph 36(1)(a) of IRPA and an
inadmissibility report under subsection 44(1) of IRPA was made on
December 29, 2011. A deportation order was issued against him on February 1,
2012.
[9]
In 2012, the Applicant made a spousal
sponsorship application for permanent residency within Canada which was
refused. In July 2013, he submitted a spousal sponsorship application for
permanent residency from outside Canada seeking an exemption to his criminal
inadmissibility, based on H&C considerations, or that he be issued a Temporary
Residence Permit (“TRP”) to allow him to return
to Canada while waiting to apply for rehabilitation to remove his criminal
inadmissibility. This application was refused on November 18, 2016 and is now
before this Court for judicial review.
[10]
In refusing the Applicant’s permanent residency
application, the Officer relied on several grounds as follows: he was not
satisfied that the Applicant’s marriage is genuine; the Applicant provided
inconsistent statements; the Applicant appeared apathetic and without remorse
during the interview; there were “research studies”
questioning “the idea that ‘fatherless’ children are
necessarily at a disadvantage”; there was limited evidence of the
Applicant’s bond with his children; and the Applicant would not face hardship
in re-establishing himself in Vietnam.
II.
Issues
[11]
The Court views the issues as follows:
- Whether the
Officer erred in his findings of fact and in law when he refused the
Applicant’s application based on H&C grounds?
- Whether there
was a breach of procedural fairness?
- Whether the
Officer’s conduct meets the criteria of special reasons, giving rise to
costs being awarded against the Respondent?
III.
Analysis
A.
Standard of review
[12]
The standard of review when considering whether
to grant relief on H&C grounds is reasonableness (Ndlovu v Canada
(Immigration, Refugees and Citizenship), 2017 FC 878 at paras 8-9, [2017]
FCJ No 939 (QL)). (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47,
[2008] 1 S.C.R. 190) [Dunsmuir] provides the standard of
reasonableness is met when a decision was justified, transparent, intelligible
and within the range of possible acceptable outcomes defensible on the facts
and law. (Newfoundland and Labrador Nurses' Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 15, [2011]
2 SCR 708) further permits the Court, when necessary, to look beyond the
reasons under review and examine the record to assess the reasonableness of the
decision.
[13]
On issues of procedural fairness, such as the
reliance on extrinsic evidence without providing an applicant the ability to
respond, the standard of review is correctness (Begum v Canada (Citizenship
and Immigration), 2013 FC 824 at para 20, [2013] FCJ No 896 (QL)).
B.
Was there a breach of procedural fairness?
[14]
The Officer in rendering his Decision relied on
extrinsic evidence, the internet article from “sciencedaily.com”,
which is a summary of a study published in the Journal of Marriage and Family.
The journal article cited by the Officer states in part:
The family type that is best for children is
one that has responsible, committed, stable parenting. Two parents are, on
average, better than one, but one really good parent is better than two
not-so-good ones. The gender of parents only matters in ways that don't matter.
[15]
The second study cited by the Officer is a
journal article titled “Are both parents always better
than one? Parental conflict and young adult well-being.” It examines the
influence of arguing between married biological parent couples compared to
those of step-parent couples and single parents and “conclude[s]
that while children do better, on average, living with two biological married
parents, the advantages of two-parent families are not shared equally by all.”
[16]
The research, as outlined in these two articles,
concludes in general that two-parent households are better than a single-parent
household which contradicts the Officer’s conclusion that the Applicant’s
daughters are not disadvantaged by the removal of the Applicant from their
home. This is blatant misuse of the Officer’s own research in his assessment of
the BIOC. It is conspicuous that the Officer never turned his mind to the BIOC
in any detail. The Respondent argues that the Officer was simply wrong. I am
not persuaded by this argument. The Officer’s Decision and misuse of such
research goes beyond simply being wrong. The Officer reached a decision and
stuck to that decision irrespective of the evidence before him. The BIOC, as
argued by the Applicant, is not about disadvantage but is about what is in a
child’s best interests. As Justice Zinn put it in Sebbe v Canada
(Citizenship and Immigration), 2012 FC 813 at para 13, 10 Imm LR (4th) 321:
“Children are not separately represented in these
proceedings [H&C Applications] and the role of the officer is akin to that
of parens patria. This is particularly true when the child is a Canadian citizen
and his or her parents are not.”
[17]
It is trite law that reliance upon extrinsic
evidence deprives applicants of transparency in the decision-making process,
particularly when an Applicant is not informed of the intent to rely upon such
extrinsic evidence or given the opportunity to respond to this evidence. This
Officer failed to maintain transparency by allowing the unilaterally selected
articles to govern the Decision resulting in a breach of procedural fairness.
[18]
The Officer states, when addressing the analysis
of the BIOC and assessing the hardship threshold, “it
would not be detrimental for the children and they would not suffer undue
hardship if they are under the care of one parent.” The Officer’s
conclusion that it is in the children’s best interests to remove the Applicant
from their home is a contradiction of the research studies the Officer misuses
which have a general finding that children are best served by a two-parent
family. This contradiction renders the Officer’s Decision unintelligible and
unreasonable.
[19]
The Officer did not note or analyze any issues
of discord, stress or bad parenting in the family unit, which might justify a
departure from the articles general findings that the presence of two parents
is, on average, better than one. Thus, the Officer’s BIOC assessment, not only
lacked a fulsome analysis as admitted by the Respondent, but also failed to
provide justifiable reasons for his Decision.
[20]
The Officer also relied on the Applicant’s
criminal convictions, alleged apathy and lack of remorse, and further asserted that
the Applicant comes from a middle-income family in Vietnam enabling him to re-establish
easily in Vietnam. The Officer did not consider the facts mitigating the
criminal convictions, such as his youthfulness at the time of the offence, the
relatively small value of the substance, that this was his only offence and his
clean record since his conviction.
[21]
The Officer further stated the Applicant “worked illegally while he was a student and soon after his
arrival in Canada. This is another sign of his disregard for the immigration
law in Canada.” This is not a justifiable finding by the Officer as it
is a result of a breach of procedural fairness. The Officer never put this to
the Applicant during his interview or at any point of the process. I find it
troublesome that the Officer failed to put the question to the Applicant as to
whether he worked illegally in Canada, but rather chose to rely on evidence
that had not been brought to the Applicant’s attention. This is an obvious failure
to comply with the Officer’s duties as prescribed by the policy and procedures
that govern him. The Respondent agreed that the Officer committed a breach of
procedural fairness.
[22]
Based on the aforementioned, I find that the
Officer’s Decision failed to meet any of the criteria required pursuant to Dunsmuir.
All of the three elements of justifiability, transparency, and intelligibility
are missing from the Officer’s Decision and in reaching the Decision there were
breaches of procedural fairness.
C.
Costs
[23]
In dealing with the issue of costs, rule 22 of
the Federal Courts Citizenship, Immigration and Protection Rules,
SOR/93-22, provides that costs should not be awarded unless the Court finds “special reasons.” Jurisprudence makes it clear that
being wrong is not enough to warrant costs.
[24]
(Ndungu v Canada (Citizenship and
Immigration), 2011 FCA 208 at para 7, 423 NR 228) provides that an
award of costs is appropriate when a Minister wastes significant time by taking
inconsistent positions, an officer circumvents a court order, there is misleading
or abusive conduct of an officer, there exists unreasonable and unjustified
delay, or the Minister opposes an obviously meritorious judicial review
application.
[25]
The Applicant argued costs should be awarded as
the Officer’s conduct amounted to being unfair, improper and a breach of
procedural fairness, in his use of research studies, which the Applicant states
amounts to bad faith. The Respondent conceded the Officer erred but submits
that the errors do not amount to bad faith, abuse or oppression. The Respondent
also argued they have taken such measures as are within their control to remedy
the Officer’s errors.
[26]
After considering the submissions of both
counsel and the evidence before me, with great reluctance, I am unable to award
costs against the Respondent. However, had it not been for the Respondent
seeking to have the judicial review allowed prior to leave being granted, I
would have found it necessary to award costs against the Respondent. The
conduct of this Officer in his many breaches of procedural fairness, in relying
upon and even misusing extrinsic evidence that had no relevance to this case,
and his failure to reasonably apply the principles of the BIOC constitutes special
reasons under the law. I am not persuaded by the Respondent’s argument that the
Officer was simply wrong.
[27]
In fact, I find the Officer’s conduct displays a
reckless disregard for procedural fairness. The Officer went out of his way to
find faults with this application rather than relying on the evidence before
him. Further, he ignored the conclusion of his own research in handing this
case.
IV.
Certification
[28]
Counsel for both parties was asked if there were
questions requiring certification, they each stated that there were no
questions arising for certification and I concur.
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