Date: 20090602
Docket: IMM-5383-08
Citation: 2009
FC 566
Ottawa, Ontario,
June 2, 2009
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
HUONG THU HA
VI HAO LAM
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
This
judicial review arises from the attempts, unsuccessful so far, by Huong Thu Ha
to sponsor her husband, Vi Hao Lam, for a permanent resident visa as a member
of the family class. While in Canada, Mr. Lam was convicted of an
indictable offence, an opinion was issued against him that he was a danger to
the public, and he was eventually deported. However, he was later granted a
pardon.
[2]
Thereafter,
in March 2006, a Visa Officer determined he was inadmissible because he had
been deported and under s. 52 of the Immigration and Refugee Protection Act
was not entitled to return “…unless authorized by an officer or in other
prescribed circumstances.” In his notes, the Officer referred to the pardon but
indicated he was not prepared to grant authorization because Mr. Lam had not
applied for it and because he was not satisfied that he was no longer a danger
to the public.
[3]
An appeal
was launched to the Immigration Appeal Division of the Immigration and Refugee
Board. By decision rendered in September 2008 the appeal was dismissed for lack
of jurisdiction. The Panel agreed with the Minister that, pursuant to s. 64(1)
of IRPA and s. 326(2) of the Immigration and Refugee Protection Regulations,
it had no jurisdiction. Section 64(1) of IRPA provides that no appeal may
be made to the Immigration Appeal Division “…if the foreign national or
permanent resident has been found to be inadmissible on grounds of security,
violating human or international rights, serious criminality or organized
criminality.” Mr. Lam was captured by the transitional provisions from the
former Immigration Act to IRPA and, for the purposes of this case, was,
when deported, a person inadmissible on the grounds of serious criminality.
[4]
This is a
judicial review of the decision of the Immigration Appeal Division refusing to
hear the appeal on the grounds of lack of jurisdiction.
[5]
The thrust
of the applicants’ argument is that the IAD had jurisdiction. It erred in law
by not concluding that the effect of the pardon was to render the danger
opinion nugatory.
[6]
However,
once the IAD turned down their appeal they obtained an extension of time and
leave to have the Visa Officer’s decision judicially reviewed directly by this
Court. In docket IMM-2696-08 Mr. Justice Barnes granted the application this
February, as follows:
I am satisfied that there was a breach of
fairness by the decision-maker in this case which requires this matter to be
redetermined by a different decision-maker. The problem is that the Applicant
requested an Authorization to Return to Canada (ARC) and acknowledged that an
administrative fee was payable. This request for an ARC was then refused on
the basis that the administrative requirements for the application were
deficient. No notification of those outstanding administrative requirements
was given to the Applicant as required by the Respondent’s Operational Manual
(O.P. 1). For this reason the decision was reached unfairly and must be set
aside.
[7]
That is
not all. In June 2008, counsel applied to the Minister for a reconsideration of
the Danger Opinion, in the light of subsequent events. No decision has yet been
rendered on that request.
[8]
I can appreciate
that the applicants are uncertain as to which remedy is open to them and I do not
consider this application vexatious since the Minister only raised the IAD’s
lack of jurisdiction at the last moment. That said, and even taking into
account that one of the purposes of the Act is to reunite families, in the
circumstances this application for judicial review is nonetheless to be
dismissed on the grounds of mootness. Although there is still a live
controversy between the parties, I shall not exercise my discretion to
nevertheless hear this application which, undoubtedly, raises important issues
with respect to the effect of a pardon after a deportation order has been
executed.
[9]
The
decision which was appealed to the IAD was quashed by Mr. Justice Barnes. He
dealt with the required authorization to return and it would be inappropriate
to speculate as to what the new Visa Officer’s decision might be. Furthermore,
the Minister may or may not quash the Danger Opinion. That is not before me.
[10]
In the
circumstances, I should not opine on the jurisdiction of the IAD. I could not
direct it to hear the appeal, as the decision under appeal to it has been set
aside.
ORDER
THIS COURT ORDERS that:
1.
This
application for judicial review is dismissed.
2.
There is
no serious question of general importance to certify.
“Sean Harrington”
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