Date: 20000526
Docket: IMM-2578-99
BETWEEN:
VAN ANH NGUYEN
Applicant
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON, J.:
[1] These reasons arise out of an application for judicial review of a decision of a
Senior Immigration Officer wherein he determined that the applicant was a person against whom a removal order had been made, but not executed, and for that reason, by virtue of subsection 44 (1) of the Immigration Act1 (the "Act") he was not entitled to access to the refugee determination system in Canada. The decision of the Senior Immigration Officer is dated the 29th of April, 1999.
[2] Subsection 44(1) of the Act reads as follows:
44. (1) Any person who is in Canada, other than a person against whom a removal order has been made but not executed, unless an appeal from that order has been allowed, and who claims to be a Convention refugee may seek a determination of the claim by notifying an immigration officer.
44. (1) Toute personne se trouvant au Canada peut revendiquer le statut de réfugié au sens de la Convention en avisant en ce sens un agent d'immigration, à condition de ne pas être frappée d'une mesure de renvoi qui n'a pas été exécutée, à moins que la mesure n'ait été annulée en appel.
[3] The applicant is a 35 year old citizen of Vietnam. He arrived in Canada in June of 1990, as a dependant of his mother, whose admission to Canada was sponsored by an older sister of the applicant. Three days prior to leaving Vietnam for Canada, the applicant married, thus rendering him ineligible to come to Canada as a dependant of his mother. He did not disclose his marriage, either to a visa officer or to an immigration officer at the time he entered Canada.
[4] The applicant's marriage only came to the attention of the respondent when he sought to sponsor his wife for immigration to Canada. As a result of the new information, the respondent conducted an inquiry which resulted in the issuance of a deportation order against the Applicant in March of 1994.
[5] The applicant appealed the decision to issue the deportation order against him to the Appeal Division of the Immigration and Refugee Board. The Appeal Division dismissed his appeal. On judicial review, the decision of the Appeal Division was set aside and the matter was referred back to the Appeal Division for rehearing and redetermination.
[6] In the autumn of 1997, the applicant withdrew his appeal to the Appeal Division and sought permission from the respondent to return briefly to Vietnam to visit with his wife who was seriously ill. The applicant did return to Vietnam but, I am satisfied on the material that is before the Court, without the permission of the respondent. Nonetheless, following his visit with his wife, the applicant was able to re-enter Canada without difficulty.
[7] Steps were initiated to remove the applicant from Canada. The applicant filed a Convention Refugee claim in late April of 1999 and the filing of that claim led to the decision here under review.
[8] I am satisfied that the facts underlying this application for judicial review are on all fours with those before the Court in Raza vs. Canada (Minister of Citizenship and Immigration)2 where Mr. Justice Muldoon wrote at paragraph 42:
| Accordingly, Mr. Justice Heald's determination that a voluntary departure amounts to execution of a removal order must be read in light of the provisions as they stood then. Now, the Act makes it clear that consent is required. As the applicant did not seek the Minister's consent, it cannot be said that the SIO erred in holding that the Applicant had not executed his removal order by voluntarily leaving Canada. Accordingly, it appears that this application for judicial review should be dismissed. |
[9] Precisely the same could be said here except that, while the applicant in this matter may have sought the respondent's consent, he simply never followed through to secure that consent with the result that the Senior Immigration Officer, in making the decision here under review, made no reviewable error.
[10] For the foregoing reasons, this application for judicial review will be dismissed.
[11] Counsel for the applicant recommended certification of a question as follows:
| Where a person who is under a removal order leaves Canada voluntarily and is lawfully admitted to another country, is the removal order deemed to have been executed? |
[12] I am satisfied that the question proposed is a serious question of general
importance and, with a significant modification to refer to the consent of the respondent, would be determinative on an appeal of my decision herein. The question proposed, suitably modified, will be certified.
"Frederick E. Gibson"
J.F.C.C.
Calgary, Alberta
May 26, 2000
FEDERAL COURT OF APPEAL
Date: 20000526
Docket: IMM-2578-99
BETWEEN:
VAN ANH NGUYEN
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2578-99
STYLE OF CAUSE: VAN ANH NGUYEN v. THE
MINISTER OF CITIZENSHIP & IMMIGRATION
| PLACE OF HEARING: Calgary, Alberta |
DATE OF HEARING: March 20, 2000
REASONS FOR ORDER OF GIBSON, J.
DATED: May 26, 2000
APPEARANCES:
Mr. Charles R. Darwent FOR APPLICANT
Ms. Tracy King FOR RESPONDENT
SOLICITORS OF RECORD:
Darwent Law Office FOR APPLICANT
Calgary, Alberta
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario
__________________
1 R.S.C. (1985), c. I-2.
2 [1999] 2 F.C. 185 (F.C.T.D.).
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