Date: 20000306
Docket: IMM-5182-99
BETWEEN:
DUC CUONG DAN,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
MR. JOHN A. HARGRAVE,
PROTHONOTARY
[1] Mr. Dan is a Canadian citizen. His case involving family reunification, namely reunification with a Vietnamese wife and Canadian child, both in Vietnam, denied by an immigration officer, has taken a difficult turn. Mr. Dan"s bid for leave for judicial review has also been denied.
[2] Mr. Dan, who acts for himself, now wishes reconsideration of the denial order of 11 February 2000. However, he has missed the ten day limitation under Rule 397, in part because the Court took six of the ten day time limit for a reconsideration application to get the Order into the mail. That being said, Mr. Dan must, in this instance, bring himself within one of the grounds for review in Rule 397. The Crown, quite properly, notes that neither Mr. Dan"s continuing intention to apply for reconsideration nor prejudice to the Respondent are at issue. This leaves it to Mr. Dan to show that he comes within the test set out in Rule 397(1)(b), that some matter which should have been dealt with has been overlooked or accidentally omitted.
[3] In examining this aspect, that of an overlooked or accidentally omitted matter, I must keep in mind that a reconsideration is not an opportunity to introduce new evidence or to reargue the case, here on humanitarian and compassionate grounds. Rather there must be special circumstances by which to obtain reconsideration: see for example Vinogradov v. M.E.I. (1994), 77 F.T.R. 296 (F.C.T.D.). Otherwise an applicant must learn to live with the consequences of his or her omissions.
[4] Here there is a special circumstance. It is based on the principle that counsel "... must bring all relevant authorities to the attention of the court, whether or not they assist the party for whom he appears.": Halsbury, 4th Edition, revised, at page 324. Further, "... in civil cases a barrister must ensure that the court is informed of all relevant decisions of which he is aware, whether the effect is favourable or unfavourable towards the contention for which the barrister argues;..." (ibid page 377). Indeed, it is the obligation of the Court to call to the attention of counsel any authority which has been overlooked: see for example Glebe Sugar Refining Co. v. Trustees of Port and Harbours of Greenock [1921] 2 A.C. 66 (H.L.) at 71 and 78.
[5] At the conclusion of argument I asked whether anyone had considered the interests of the Canadian child of Mr. Dan and his wife, Thuy-Binh Luong. There is no reference to the child, Khanh Tu Dan, in the Board"s decision, other than minimal factual acknowledgement that Mr. Dan intended that the child would accompany her mother to Canada, that counsel for Mr. Dan had noted that "... living conditions in Vietnam are terrible and that there is concern for the welfare of the child who is a Canadian citizen." and that, according to the immigration officer who had turned down the application, Mr. Dan wished to bring his daughter to Canada "for a better life".
[6] In the absence of any consideration of the interests and welfare of the child by the Immigration and Refugee Board and indeed, in the total absence of any consideration, apparently by anyone, of Khanh Tu"s interests, I therefore referred counsel to Baker v. The Queen [1999] 2 S.C.R. 817. The issue in Baker was the position and interests of Canadian dependent children in the context of humanitarian and compassionate considerations. There is a relevant passage in Baker at page 864:
| The certified question asks whether the best interests of the children must be a primary consideration when assessing an applicant under s. 114(2) and the Regulations. The principles discussed above indicate that, for the exercise of the discretion to fall within the standard of reasonableness, the decision-maker should consider children"s best interests as an important factor, give them substantial weight, and be alert, alive and sensitive to them. That is not to say that children"s best interest must always outweigh other considerations, or that there will not be other reasons for denying an H & C claim even when children"s interests are given this consideration. However, where the interests of children are minimized, in a manner inconsistent with Canada"s humanitarian and compassionate tradition and the Minister"s guidelines, the decision will be unreasonable. |
That the interests of the Canadian child, Khanh Tu Dan, have been minimalized ought to have been presented by the parties for consideration. Mr. Dan is a lay litigant, who seems to have done a thorough job given his limitations, which limitations include a lack of familiarity with immigration practice, procedure and law. His oversight was unfortunate. However counsel for the Respondent ought to have touched upon the Baker case.
[7] Leaving aside that Mr. Dan received short notice of the denial of his application for leave for judicial review, the interests of the Canadian child, Khanh Tu Dan, having been overlooked, Mr. Dan may seek reconsideration of the 11 February 2000 Order.
(Sgd.) "John A. Hargrave"
Prothonotary
March 6, 2000
Vancouver, British Columbia
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
| COURT FILE NO.: IMM-5182-99 |
| STYLE OF CAUSE: DUC CUONG DAN |
v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: VANCOUVER, BC
DATE OF HEARING: March 6, 2000
REASONS FOR ORDER OF MR. JOHN A. HARGRAVE, PROTHONOTARY
APPEARANCES:
| Mr. Duc Cuong Dan for himself |
| Ms. Kim Shane for the Respondent |
SOLICITORS OF RECORD:
Morris Rosenberg
Deputy Attorney General
| of Canada for the Respondent |
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