Pham v. Canada (Minister of Citizenship and Immigration), docket IMM-2095-96

     IMM-2095-96

Between:

     LONG VAN PHAM,

     Applicant,

     - and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

     Respondent,

     REASONS FOR ORDER

Campbell, J.

     Let the attached transcript of my Reasons for Order delivered orally from the bench at Vancouver, British Columbia on February 25, 1998 now edited, be filed to comply with section 51 of the Federal Court Act.

                         (Sgd.) "Douglas Campbell"                                      Judge

Vancouver, British Columbia

March 5, 1998

     FEDERAL COURT OF CANADA

     TRIAL DIVISION

     (Before the Honourable Mr. Justice Campbell)

     VANCOUVER, B.C.

     February 25, 1998

IMM-2095-96

BETWEEN:

     LONG VAN PHAM,

     APPLICANT;

AND:

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

     RESPONDENT.

MR. P. RANKIN,              Appearing for the Applicant;

MS. L. EASSEN,      Appearing for the Respondent.

---

REASONS FOR ORDER

CAMPBELL, J. (Orally):

These are my brief reasons for setting this order aside.

On page 4 of the Tribunal Record, which is the reviewing officer's comments and recommendation, in the bottom paragraph there is a direct reference to the fact that extraneous considerations ought not to be included in the material that goes to the Minister's delegate. The extraneous considerations are contained in newspaper articles, which created some public concern, about Mr. Pham's daughter trafficking in heroin. This paragraph specifically states that this information is not to be before the decision maker.

I think I can safely read into the concern expressed that, not only the newspaper articles should be kept from the decision maker, but also references to the facts cited in the articles. There is no magic in the point that inflammatory material should not be before the decision maker because it would be unfair to put it there. It happens that, even though the articles were taken out, by looking at page 43 of the record and following, I know that the exact information that was intended not to go before the decision maker did go before the decision maker, it being contained in a representation made by Ms. Stewart,lawyer on behalf of Mr. Pham.

The standard that was set, being that is would be unfair to include the information, was not followed. Consequently, it is unfair for this decision to have been made with that material in the hands of the decision maker. The order is set aside accordingly.

All that is being requested is that this matter be referred back to a different Minister's delegate for reconsideration. And I will so order, but on these directions:

(1) the Minister's delegate on the reconsideration have no prior knowledge of this case;

(2) new submissions be provided by counsel for Mr. Pham to replace those which are the impugned submissions, being at pages 24 and 42 of the present Tribunal Record.

And it goes without saying, (3) no reference about the daughter's conduct be made anywhere in the material placed before the Minister's delegate who reconsiders this case.

     FEDERAL COURT TRIAL DIVISION

     NAMES OF COUNSEL AND SOLICITORS OF RECORD

HEARING DATED:          February 25, 1998

COURT NO.:              IMM-2095-96

STYLE OF CAUSE:          Long Van Pham

                     v.

                     MCI

PLACE OF HEARING:          Vancouver, BC

REASONS FOR ORDER OF CAMPBELL, J.

dated March 5, 1998

APPEARANCES:

     Mr. Phil Rankin          for Applicant

     Ms. Larissa Easson          for Respondent

SOLICITORS OF RECORD:

     Rankin & Bond          for Applicant

     Vancouver, BC

     George Thomson          for Respondent

     Deputy Attorney General

     of Canada