Date: 20061107
Docket: IMM-7018-05
Citation: 2006 FC 1339
Ottawa, Ontario,
November 7, 2006
PRESENT: THE HONOURABLE MADAM JUSTICE HENEGHAN
BETWEEN:
VAN
MUOI VU
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Mr. Van
Muoi Vu (the “Applicant”) seeks judicial review of the decision made by a
Pre-Removal Risk Assessment Officer (the “PRRA Officer”), on August 5, 2005. In
that decision, the PRRA Officer found that the Applicant would not face risk,
as described in sections 96 and 97 of the Immigration and Refugee Protection
Act, S.C. 2001, c. 27, as amended (the “Act” or “IRPA”),
if returned to Vietnam.
[2]
The
Applicant is a citizen of Vietnam. He came to Canada in June 1992 under the Indochinese
Designated Class (Transitional) Regulations, SOR/90-627 but not as a
Convention refugee.
[3]
Between
1973 and 2002, the Applicant was charged with and convicted of criminal
offences, including drug trafficking. Subsequently, his permanent residency
status was revoked and he was ordered to be deported.
[4]
On November
15, 2004, the Applicant submitted a PRRA application pursuant to sections 112
and 113 of the Act. He attended an oral hearing before the PRRA Officer on
March 10, 2005. In his decision dated August 5, 2005, the PRRA Officer
determined that the Applicant does not face sufficient risk of persecution if
he were to return to Vietnam and advised that the removal
order against him was now enforceable. The decision and reasons for decision do
not discuss the children of the Applicant, who are Canadian citizens, nor their
interests.
[5]
The
principal argument advanced by the Applicant is that the PRRA Officer, having
raised the subject of humanitarian and compassionate grounds in the course of
the PRRA hearing held on March 10, 2005, was obliged to address such factors
before making his decision. He argues that consideration of humanitarian and
compassionate factors necessarily require consideration of the best interests
of the Applicant’s children, all of whom are Canadian citizens. In support of
these arguments, the Applicant relies upon his affidavit filed in this
proceeding where he deposed to the following statements:
9. Mr. Sheppard was well aware that I
had my wife and three children – all of whom are Canadian citizens who rely on
me for financial and emotional support as my counsel raised this as the first
issue we discussed with him.
10. The issue of humanitarian and
compassionate considerations in the context of the PPRA [sic] was raised
squarely by Mr. Sheppard as he alerted us to the fact that few counsel are
aware of the humanitarian and compassionate aspect of the Pre-Removal Risk
Assessment officer.
11. In fact – Mr. Sheppard specifically
cited Barb Jackman as one of the few if not first counsel who did insist that
humanitarian and compassionate facts be considered in the PRRA.
12. My understanding of the situation
was that Mr. Sheppard would consider humanitarian and compassionate factors.
The Applicant was not cross-examined upon his affidavit.
[6]
The
Respondent takes the position that the PRRA Officer was under no legal
obligation to address humanitarian and compassionate factors and, in this
regard, relies upon the decisions in Kim v. Canada (Minister of Citizenship
and Immigration) (2005), 272 F.T.R. 62 (F.C.); Banik v. Canada (Minister of
Citizenship and Immigration) (July 3, 2003), Doc. No. IMM-4861-03 (F.C.); Sherzady v. Canada (Minister of
Citizenship and Immigration) (2005), 273 F.T.R. 11 (F.C.); and Kanagaratnam v. Canada (Minister of Employment and
Immigration)
(1994), 83 F.T.R. 131 (Fed. T.D.), aff’d (1996), 194 N.R. 46 (Fed. C.A.).
[7]
The first
matter to be addressed is the applicable standard of review, according to a
pragmatic and functional analysis. The four factors to be considered in this analysis are the presence
or absence of a privative clause; the expertise of the
tribunal; the purpose of the legislation and of the particular provision in
issue; and the nature of the question.
[8]
The Act
does not contain a privative clause and an application for judicial review is
subject to leave being granted by the Court. Accordingly, the first factor is
neutral.
[9]
The decision-maker
in this case is a PRRA Officer who will be experienced in assessing PRRA
applications. Furthermore, in this case, a hearing was held and the PRRA Officer
was in the position of observing the Applicant and posing any questions, if
necessary.
[10]
The
purpose of the Act is to regulate the admission of non-citizens into Canada. The purpose of the
provisions governing the PRRA process, that is sections 96, 97 and 113, is to
assess whether a person will face risk of persecution or torture if returned to
his or her country of nationality.
[11]
The nature
of the question, in this case, is essentially fact-driven and requires
assessment of prevailing conditions in the country of nationality.
[12]
On
balance, I conclude that the appropriate standard of review is patent
unreasonableness. The Applicant’s arguments concerning the PRRA Officer’s
introduction of the subject of consideration of humanitarian and compassionate
grounds and his corresponding duty to address
those factors raise an issue of procedural fairness that is
subject to review on the standard of correctness.
[13]
In
addressing the merits of the PRRA Officer’s decision, I am satisfied that it
meets the standard of patent unreasonableness. According to the certified
Tribunal Record, the PRRA Officer reviewed a significant quantity of material
relating to the treatment of deserters by the government in Vietnam. The PRRA Officer was satisfied
that the Applicant would not be at risk in Vietnam if returned to that country some 24 years after he had fled from
his military service. There is no basis for judicial intervention in his
decision.
[14]
I agree
with the submissions of the Respondent that the Act imposes no obligations upon
a PRRA Officer to address humanitarian and compassionate factors in assessing a
PRRA application. The subject was recently addressed by Justice Barnes in Naidu
v. Canada (Minister of Citizenship and
Immigration),
[2006] F.C.J. No. 1392 (QL).
[15]
Did the
PRRA Officer breach the principles of procedural fairness by raising the
subject of humanitarian and compassionate grounds in the context of the
Applicant’s PRRA application and then failing to address such factors? The
Applicant relies on his uncontradicted affidavit evidence that such comments
were made to support his argument that, in the circumstances, the PRRA Officer
should have addressed such considerations.
[16]
I infer
that the Applicant’s submissions in relation to what was said by the PRRA
Officer relate to the doctrine of legitimate expectation, an aspect of
procedural fairness. In Bendahmane v. Canada (Minister of Employment and Immigration), [1989] 3 F.C. 16 (Fed. C.A.) at pages 31-32, Justice
Hugessen, writing for the majority, said the following concerning this
doctrine:
The applicable principle is sometimes
stated under the rubric of “reasonable expectation” or “legitimate
expectation”. It has a respectable history in administrative law and was most
forcefully stated by the Privy Council in the case of Attorney-General of
Hong Kong v. Ng Yuen Shiu. In that case, Ng was an illegal immigrant to
Hong Kong from Macau, one of several thousands.
The Government gave a public assurance that each illegal immigrant would be interviewed
and each case treated on its merits. Notwithstanding this, Ng, whose illegal
status was not in dispute, was ordered deported without being given the
opportunity to explain why discretion should be exercised in his favour on
humanitarian and other grounds. The Privy Council held that in so acting the
authorities had denied Ng’s reasonable expectations based upon the Government’s
own statements. … [citation omitted]
[17]
In my
opinion, the facts of the present case do not show that this doctrine is engaged.
The PRRA Officer was under no legal duty to consider humanitarian and
compassionate factors. The evidence of the Applicant falls short of
demonstrating that the PRRA Officer gave an undertaking to consider
humanitarian and compassionate factors including the best interests of the
Applicant’s children who are Canadian citizens.
[18]
In the
result, there is no basis for judicial intervention and this application for
judicial review is dismissed. There is no question for certification arising.
ORDER
The application for judicial review is dismissed. There is
no question for certification arising.
“E.
Heneghan”
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