Date: 20110506
Docket: IMM-5691-10
Citation: 2011 FC 523
Ottawa, Ontario, May 6, 2011
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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PASEUTH PATHOUMVIENG
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Defendant
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REASONS FOR JUDGMENT AND
JUDGMENT
I.
Overview
[1]
Mr. Paseuth Pathoumvieng seeks to become a
permanent resident of Canada.
He requested an exemption, on humanitarian and compassionate grounds, from the
usual requirement that applicants apply from outside Canada. He has been in Canada since 2005.
[2]
An immigration officer assessed Mr.
Pathoumvieng’s application and denied it, finding that Mr. Pathoumvieng would
not suffer unusual, undeserved or disproportionate hardship if he had to return
to his country of origin, Laos,
to make his application. Mr. Pathoumvieng argues that the officer made a
serious error that resulted in a denial of procedural fairness. In his notes to
file, the officer had erroneously observed that Mr. Pathoumvieng might have
been working without a work permit given that he had been doing volunteer work
as a janitor at his church. Mr. Pathoumvieng correctly points out that
volunteer activities are not considered to be “work” as defined in the Immigration
and Refugee Protection Regulations, SOR/2002-227, s 2. No permit is needed
to perform volunteer work.
[3]
Mr. Pathoumvieng argues that he should have been
given an opportunity to address the officer’s concern. He submits that, without
that opportunity, he was denied procedural fairness. He asks me to overturn the
decision and order a reassessment by a different officer.
[4]
I can find no basis, however, for overturning
the officer’s decision. The officer’s reference to Mr. Pathoumvieng’s volunteer
work as a janitor was merely a parenthetical observation in the officer’s
notes. It did not figure in the actual decision except as a positive factor
going to the degree to which Mr. Pathoumvieng had established himself in Canada. Therefore, I can find no breach of
procedural fairness and must dismiss this application for judicial review.
[5]
The sole issue is whether the officer’s
reference to Mr. Pathoumvieng’s volunteer work as a janitor resulted in a
breach of procedural fairness.
II.
Did the officer breach the rules of
procedural fairness?
[6]
Under the heading “In Consideration - Factors”,
the officer stated the following in his notes:
The applicant
states that he does volunteer work at his brother’s church. The reference
letter from his brother who is pastor of the church states the applicant
volunteers doing janitor work (this may be considered as working without
authorization – applicant does not have a work permit).
[7]
Later, under the heading “Decision and Reasons –
Establishment”, the officer stated:
The applicant
states that he is volunteering as a janitor at his brother’s church and that he
has assisted in fund raising for a local hospital . . . The applicant has
likely established his place within the family unit and at his brother’s house
and church.
[8]
It appears to me that the officer ultimately
considered Mr. Pathoumvieng’s volunteer work as a positive factor showing the
degree to which he had become integrated into his family and community in Canada. While the officer dismissed Mr.
Pathoumvieng’s application because of an absence of significant hardship, the
possibility that Mr. Pathoumvieng had been working without a permit did not
form part of the officer’s reasoning.
[9]
Mr. Pathoumvieng maintains that the
circumstances of his case are similar to those in Skripnikov v Canada (Minister
of Citizenship and Immigration), 2007 FC 369 and Rukmangathan v Canada
(Minister of Citizenship and Immigration), 2004 FC 284. In those cases, the
Court overturned decisions by immigration officers who had made adverse factual
findings without giving the applicant a chance to address the officer’s
concerns.
[10]
In Skripnikov, the applicants were a
husband and wife who claimed to be grieving the death of their son and
presented an application on humanitarian and compassionate grounds. The officer
was not satisfied that the applicants were the child’s biological parents.
Justice Sean Harrington found that the officer’s failure to share his concern
with the applicants was a breach of procedural fairness.
[11]
In Rukmangathan, the applicant applied
for permanent residence as a skilled worker in the area of computer
programming. The officer who assessed the application concluded that the
applicant’s grades in certain courses were low, and believed that two of his
educational credentials were unsatisfactory. Justice Richard Mosley found that
the officer should have made the applicant aware of his concerns because they could
easily have been cleared up. Because it was impossible to know whether the
applicant would have succeeded in the absence of those concerns, Justice Mosley
ordered a reassessment of the application by a different officer.
[12]
In my view, in the cases cited by Mr.
Pathoumvieng, the officers’ concerns related to areas that were central to the applications
in issue. That is not the situation here. The officer’s remark relating to the
possibility that Mr. Pathoumvieng might have been working without a permit was
at the periphery of the application. It was not even an actual finding of fact.
It was not mentioned at all in the officer’s reasons. Therefore, the outcome
would not, in my view, have been any different if the officer had provided Mr.
Pathoumvieng with a chance to address any concern that the officer might have
had on that point. I can find no breach of procedural fairness.
III. Conclusion and Disposition
[13]
I can find no basis for Mr. Pathoumvieng’s
assertion that the officer treated him unfairly. Therefore, I must dismiss this
application for judicial review. Neither party proposed a question of general
importance for me to certify, and none is stated.
JUDGMENT
THIS COURT’S JUDGMENT
is that
1.
The
application for judicial review is dismissed.
2.
No
question of general importance is stated.
“James
W. O’Reilly”
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