Docket: IMM-22-17
Citation:
2017 FC 1065
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 for judicial review by
Duy Khanh Do (“the Applicant”) pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 (“IRPA”). The Applicant applied from out of
country 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”).
The Applicant also applied for a Temporary Residence Permit (“TRP”) during this process and was told at his
interview he would instead need to apply for the TRP separately once the
decision was issued. This was confirmed in the written reasons for the H&C
Application decision. The refusal to consider the TRP application forms the
basis for this proceeding.
[2]
The Applicant and Respondent have both agreed
this application should be returned for redetermination by a different Officer.
[3]
In the case of the TRP no express decision was
provided, only the H&C Application Decision, dated November 18, 2016, in
which the Immigration Officer (“the Officer”)
confirms the Applicant was told, during his interview, to apply separately
after a final decision on the H&C Application had been made.
[4]
Prior to leave being granted the Respondent
brought a motion requesting the judicial review be granted and this matter be
sent back 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 609, unreported) with no order as to costs. Justice Heneghan dismissed
the Respondent’s motion because the Respondent had not stated how the Officer
erred in his decision.
I.
Facts
[5]
The factual background of this case is the same
as in 2017 FC 1064. For this reason and for the sake of brevity, the facts will
not be repeated in this judgement. I shall only highlight the facts relevant to
the TRP issue.
[6]
In July 2013, the Applicant submitted a spousal
sponsorship application for permanent residency from outside Canada requesting
that, based on H&C grounds, he be granted an exemption to his criminal
inadmissibility or that he be issued a TRP to allow him to return to Canada in
the interim while waiting to apply for rehabilitation to remove his inadmissibility.
[7]
As part of the July 2013 H&C and TRP
Applications, there was numerous correspondence between the Applicant’s counsel
and the Singapore visa office, for which the main contact was Thomas Richter,
the Deputy Program Manager (“Mr. Richter”).
[8]
In this correspondence Mr. Richter explains they
will need to interview the Applicant as part of these applications and they
must do so in person after the Applicant has been deported to Vietnam. Mr.
Richter also stated in October 2014 that “[s]hould Mr.
Do wish to apply for a TRP he may do so, but any decision would be made only
once an interview has been conducted.”
[9]
Subsequent to this, counsel for the Applicant,
in September 2015, confirmed a TRP had been requested and further elaborated on
why a TRP should be granted.
[10]
The Applicant was then interviewed by the
Officer in Vietnam on May 30, 2016 and it appears from the Decision he was told
at this time he would need to apply for a TRP separately and only after the
H&C determination is made.
II.
Issues
[11]
There are two issues in this matter:
- Whether the
Officer erred in refusing to consider the TRP and stating the Applicant
needed to apply separately for the TRP after the H&C determination?
- Whether costs
should be awarded against the Respondent for the Officer’s conduct?
A.
Standard of Review – Correctness
[12]
The Applicant states the standard of review is
correctness for determining whether there was a failure to consider a TRP when
one was requested, as this is an error of law where no deference is owed. The
Applicant relies on both Shah v Canada (Citizenship and Immigration),
2011 FC 1269, 3 Imm LR (4th) 269 [Shah]; Dhandal v Canada
(Citizenship and Immigration), 2009 FC 865, 82 Imm LR (3d) 214 [Dhandal].
[13]
The correctness standard of review was applied
in Shah as a failure to consider a TRP request had been characterised in
past jurisprudence as either “an error in law or an
error in due process” (at para 36). The Respondent made no submissions
as to the standard of review. Given the jurisprudence as cited I shall adopt
the correctness standard of review.
III.
Analysis
[14]
In accordance with Dhandal at paragraph
15, “[a] new application is not necessary if the
applicant is found to be inadmissible for permanent residence. A simple letter
is sufficient to trigger the request for [a TRP] based upon the existing
application”. The Applicant argues such a request had clearly been made,
received, and not considered, even though Mr. Richter stated that if the
Applicant applied for a TRP, a decision would be made, however only after the
interview occurred.
[15]
Shah at paragraph
77 confirms that if a TRP is requested an officer must indicate the request is
considered even if there was no basis for its issuance, and a failure to
consider a TRP when requested is an error. To remedy this error the Applicant
requests the matter be redetermined before “a different
Officer to assess the TRP in good faith, with regard to the evidence before him
or her and on an expedited basis.”
[16]
The Respondent consents the Officer erred in
failing to consider the TRP and particularises this error by stating the
Officer was not permitted to refuse consideration of the TRP unless the Officer
had found they had discretion to not consider the TRP under subsection 24(7) of
IRPA. “The Respondent agrees with the Applicant
that [this] Court should remit the TRP request to a new officer for
reconsideration.” The Respondent also agreed that this redetermination
should be dealt with as soon as possible.
[17]
Given the Applicant clearly requested a TRP, and
it was not considered when the Officer stated the Applicant needed to apply
separately, the Officer erred based on the existing jurisprudence and the
matter should be sent for redetermination by a new officer just as both parties
have requested. Based on the jurisprudence, and correspondence cited, it is
obvious this was not only an error but amounted to disregard for the evidence
before him and requires the matter be sent for redetermination.
B.
Should Costs be Awarded Against the Respondent
for the Conduct of the Officer
[18]
As discussed in my other judgment in relation to
the Applicant’s H&C Application 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.”
[19]
The Applicant requested costs in this matter
stating bad faith is not required and what occurred was “unfair and improper conduct” which meets the special
reasons threshold for costs in immigration matters. Further, the Applicant
argued the Officer’s failure to consider the TRP was contrary to jurisprudence
already raised with the Respondent’s representatives prior to the Decision and
was contrary to statements made by Mr. Richter.
[20]
The Respondent was proactive in attempting to
remedy the situation by offering a redetermination to the Applicant and, when
this offer was refused, attempted on motion to have the judicial review
allowed. These efforts show an award of costs against the Respondent seems
inappropriate unless this Court finds the conduct of the Officer and the
circumstances of the Applicant rise to such a high level that they completely
outweigh the Respondent’s attempts to remedy the situation.
[21]
The Respondent submits that although the Officer
erred in failing to consider the TRP this did not amount to a circumstance
where special reasons exists, such as bad faith, abuse or oppression, and the
onus is on the Applicant to demonstrate special reasons exist with the conduct
cited by the Applicant not rising to this level.
[22]
Although the Officer failed to meet the minimum
standards required in the discharge of his duties, after considering all the
evidence before me and both counsels’ arguments, I am not persuaded that the
Applicant has met the threshold required to show that special reasons exist to
warrant awarding costs against the Respondent.
IV.
Certification
[23]
Counsel for both parties were 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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