Duong v. Canada (Minister of Citizenship and Immigration), docket IMM-874-98

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docket IMM-874-98

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Text of decision

Date: 19981211

Docket: IMM-874-98

BETWEEN:

TU VAN DUONG

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER

[Delivered from the Bench at Toronto, Ontario

on Wednesday, December 2, 1998, as edited]

ROTHSTEIN J.:

[1] This is a judicial review of a decision of the Immigration Appeal Division dismissing the appeal of the applicant under paragraph 70(1)(b) of the Immigration Act, R.S.C. 1985, c. I-2. The respondent questions the jurisdiction of the Appeal Division to decide the appeal in this case. In view of my decision to dismiss the judicial review on its merits, it is not necessary to decide that issue.

[2] The applicant submits that the Appeal Division fettered its discretion by placing undue emphasis on his misrepresentation in obtaining his visa and in obtaining landing at a port of entry in Canada. The applicant also says that the Appeal Division misconstrued and ignored evidence. The Appeal Division did place emphasis on the applicant's misrepresentations. However, it did not do so exclusively. It did deal with balancing factors relating to how well the applicant had done since he has come to Canada, the relationship he had with his family in Canada, and the question of hardship should he be required to return to Vietnam. Those considerations were relevant in this case. The panel did not make express reference to a psychological report prepared on behalf of the applicant. However, the panel refers to a number of matters that are also referred to in the psychological report. I am not persuaded that it ignored the psychological assessment.

[3] There was a question as to whether mortgage payments for the house in which the applicant's mother was living could be made in his absence. There was some evidence that the mortgage payments could not be made. However, the Appeal Division was of the view that there were other resources to deal with this obligation in the applicant's absence. There are siblings who do work part-time and the mother works part-time. This determination by the panel was not made without regard to the evidence or by reason of ignoring evidence.

[4] The Appeal Division decision was discretionary. I cannot see any error that would justify the Court interfering with it. The judicial review must be dismissed.

Marshall Rothstein

J U D G E

OTTAWA, ONTARIO

DECEMBER 11, 1998

FEDERAL COURT OF CANADA

Names of Counsel and Solicitors of Record

COURT NO: IMM-874-98

STYLE OF CAUSE: TU VAN DUONG

and -

THE MINISTER OF CITIZENSHIP AND

IMMIGRATION

DATE OF HEARING: WEDNESDAY, DECEMBER 2, 1998

PLACE OF HEARING: TORONTO, ONTARIO

REASONS FOR ORDER BY: ROTHSTEIN, J.

DATED: FRIDAY, DECEMBER 11, 1998

APPEARANCES: Mr. Lorne Waldman

For the Applicant

Ms. Urszula Kaczmarczyk

For the Respondent

SOLICITORS OF RECORD: Jackman, Waldman & Associates

Barristers & Solicitors

281 Eglinton Avenue East

Toronto, Ontario

M4P 1L3

For the Applicant

Morris Rosenberg

Deputy Attorney General

of Canada