Date: 20071220
Docket: IMM-5924-06
Citation: 2007 FC 1343
Ottawa, Ontario, December 20, 2007
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
NGOC UYEN NHI NGO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1] Ngoc Uyen Nhi
Ngo is a citizen of Vietnam who applied for permanent residence in Canada.
While her application was treated as an application in the skilled worker
class, Ms. Ngo requested humanitarian and compassionate consideration because
she was the last member of her nuclear family remaining in Vietnam.
[2] Ms.
Ngo's application was refused because she did not meet all of the criteria of
the skilled worker class and because, in the officer's words, "I am
satisfied that she is not experiencing any undue hardship in Vietnam. She has
no impediments to working and is supporting herself. Separation from the rest
of the family is not unusual and she has relatives in Vietnam.”
[3] The
Minister agrees that this application for judicial review should be allowed
because the officer who rejected Ms. Ngo's application did not assess her as a de
facto family member as set out in the Ministerial guidelines contained in
section 8.3 of chapter 4 of the Overseas Processing Manual (OP 4). As well, it
is not clear from the record that the officer considered certain written
submissions made on Ms. Ngo's behalf.
[4] The
parties could not, however, agree on the terms upon which the matter is to be
sent back for reconsideration or on whether special circumstances justify an
award of costs. These reasons deal with these two issues.
[5] I
preface these reasons by observing that this is the second time that the Court
has set aside a negative decision regarding Ms. Ngo’s application for permanent
residence. What is troubling, and causes dismay, is that the first negative
decision was set aside because it was "not responsive to the emotional and
financial dependency argument submitted on behalf of" Ms. Ngo. This is
the very error committed by the officer in the decision now under review.
[6] It
is because the visa post has made the same fundamental error twice that I will
be remitting this matter back with a number of directions intended to assist
the new decision-maker. To be clear, the decision is to be made by a qualified
visa officer and not by the Court. But, to be equally clear, the reasons for
the next decision should demonstrate that the officer is aware of, and has
considered, all of the relevant circumstances. The reasons should also demonstrate
how the officer applied the relevant legislative and regulatory provisions, and
the ministerial guidelines to the circumstances of this case.
[7] Turning
to the directions to be given to the new decision-maker, they are made pursuant
to paragraph 18.1(3)(b) of the Federal Courts Act, R.S.C. 1985,
c. F-7. Subsection 18.1(3) of the Federal Courts Act is set out in the
schedule to these reasons.
[8] The
following directions were discussed with, and agreed upon by, both counsel at
the hearing.
[9] First,
the matter is to be remitted for redetermination by an officer who has had no
prior involvement in the previous decisions.
[10] Second,
any interview required of Ms. Ngo should be conducted by the officer who will
decide the humanitarian and compassionate aspect of the application.
[11] Third,
the officer's decision shall be made with express regard to paragraph 3(1)(d)
of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, and
section 8.3 of OP 4.
[12] Fourth,
the reasons for the decision shall explicitly set out the officer's reasons for
finding that there are, or are not, sufficient humanitarian and compassionate
factors to warrant an exemption from the requirements of the skilled worker
class.
[13] Fifth,
if the officer considers it to be a relevant fact that Ms. Ngo's family
immigrated to Canada without her, the reasons for the decision must demonstrate
that the officer expressly considered all of the facts surrounding the
departure of Ms. Ngo's family.
[14] Finally,
the decision is to be made within 30 days of the date of the Court's judgment.
[15] A
comment, in the unique circumstances of this case, is warranted with respect to
the first direction. Concern was expressed during the hearing by Ms. Ngo's
counsel as to whether the visa post in question had sufficient staff to allow a
fresh decision-maker to be found. I accept, without hesitation, counsel for
the Minister’s assurance that a qualified and fair officer will be found to
make the decision. On reflection, however, I think it would be wise for such
officer to be specifically told that he or she is to have no regard to the fact
that Ms. Ngo's application has been refused previously. The officer should be advised
that the reason that this is not a relevant consideration is that those prior
refusals were based upon a failure to properly consider the relevant legislation
and ministerial guidelines.
[16] I
think this instruction is prudent in the present case because of an unfortunate
entry in the Computer Assisted Immigration Processing System notes, where the
officer who made the first decision expressed not only her disappointment with
the Court's order that set aside her initial decision, but also her
dissatisfaction with the Court’s reasons. The new decision-maker would
normally be expected to have access to that note. Hence, the salutary nature
(at least in my view) of the advice above. Accordingly, the first direction,
as it appears in the judgment that follows, will be revised to address my
concern.
[17] Turning
to the issue of costs, Ms. Ngo seeks costs on a solicitor-client basis in light
of the failure of the officer to follow the prior direction of this Court. The
Minister responds that no special circumstances warrant an award of costs, let
alone an award of solicitor-client costs. The Minister also notes that she
made a timely offer to settle this matter and that Ms. Ngo's counsel has
advanced arguments that have already been rejected on two prior occasions by
this Court. In the Minister’s view, the actions of Ms. Ngo have unnecessarily
delayed the redetermination of this matter.
[18] Three
facts are relevant to the issue of costs. First, the second officer ignored
the Court's order and made a second decision without proper consideration of
the emotional and dependency factors outlined in section 8.3 of OP 4. Second, Ms.
Ngo was required to bring an application for judicial review of that decision.
Third, the Minister opposed the granting of leave in Ms. Ngo’s application.
[19] In
my view, those facts constitute special reasons that warrant an award of costs.
[20] That
said, once leave was granted and the certified tribunal record was delivered,
the Minister promptly attempted to settle this application. At that point in
time, I am satisfied that no special reasons existed that would justify any
further award of costs.
[21] Orally,
counsel for the Minister suggested that costs in the amount of $750.00 would be
reasonable. Ms. Ngo's counsel argued that if solicitor-client costs were not
available, an award of $3,000.00 would be appropriate.
[22] An
award of costs in the all-inclusive amount of $1,000.00 is, in my view,
appropriate having regard to all of the circumstances.
[23] The
application for judicial review is therefore allowed as set out more particularly
in the judgment that follows. As everything but the quantum of costs was
agreed upon by the parties, there is no question to certify.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. The application for judicial review is allowed, and the
decision of the Immigration Program Manager dated October 2, 2006, is hereby
set aside.
2. The matter is remitted
for redetermination on the following terms:
a. The application is to be decided by an officer who has had no
prior involvement in the making of the previous decisions. Such officer is to
be specifically told that he or she is to have no regard to the fact that Ms.
Ngo's application has previously been refused. This is because those refusals
were based upon a failure to properly consider the relevant legislation and
ministerial guidelines.
b. Any interview of Ms. Ngo that is required shall be conducted
by the officer who will decide the humanitarian and compassionate aspect of her
application.
c. The officer's decision shall be made with express regard to
paragraph 3(1)(d) of the Immigration and Refugee Protection Act
and section 8.3 of OP 4.
d. The reasons for the decision shall explicitly set out the
officer's reasons for finding that there are, or are not, sufficient
humanitarian and compassionate factors so as to warrant an exemption from the
requirements of the skilled worker class.
e. If the officer considers it to be a relevant fact that Ms.
Ngo's family immigrated to Canada without her, the reasons for the decision
must demonstrate that the officer expressly considered all of the factors
surrounding the departure of Ms. Ngo's family.
f. The
decision is to be made within 30 days of the date of this judgment.
3. The Minister shall pay
costs to Ms. Ngo fixed in the all-inclusive sum of $1,000.00.
“Eleanor R. Dawson”
APPENDIX
Subsection 18.1(3) of the Federal
Courts Act, R.S.C. 1985, c. F-7 reads as follows:
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18.1(3) On an application for judicial review, the Federal Court may
(a) order a
federal board, commission or other tribunal to do any act or thing it has
unlawfully failed or refused to do or has unreasonably delayed in doing; or
(b) declare
invalid or unlawful, or quash, set aside or set aside and refer back for
determination in accordance with such directions as it considers to be
appropriate, prohibit or restrain, a decision, order, act or proceeding of a
federal board, commission or other tribunal.
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18.1(3) Sur présentation d'une demande de contrôle
judiciaire, la Cour fédérale peut :
a)
ordonner à l’office fédéral en cause d’accomplir tout acte qu’il a
illégalement omis ou refusé d’accomplir ou dont il a retardé l’exécution de
manière déraisonnable;
b)
déclarer nul ou illégal, ou annuler, ou infirmer et renvoyer pour jugement
conformément aux instructions qu’elle estime appropriées, ou prohiber ou
encore restreindre toute décision, ordonnance, procédure ou tout autre acte
de l’office fédéral.
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