Date: 20240506
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Docket: IMM-5626-21
Citation: 2024 FC 690
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St. John’s, Newfoundland and Labrador, May 6, 2024
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PRESENT: The Honourable Madam Justice Heneghan
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BETWEEN:
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KIN CHUEN
|
Applicant |
and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS AND JUDGMENT
[1] Mr. Kin Chuen (the “Applicant”
) seeks judicial review of the decision made by an officer (the “Officer”
) of the Consulate General of Canada and Immigration, Refugee and Citizenship Canada refusing his application for permanent residence on grounds of inadmissibility pursuant to paragraph 37(1)(b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”
).
[2] The Applicant is a citizen of China. He applied for permanent residence in February 2011. On April 5, 2019, the Officer sent him a “procedural fairness”
letter expressing credibility and inadmissibility concerns.
[3] The Applicant’s application was refused on June 22, 2021, on the basis that he is inadmissible to Canada for participation in the illegal cigarette trade and money laundering.
[4] The Applicant now argues that the decision was made in breach of his right to procedural fairness, specifically that the Officer relied on extrinsic documents that were not available to him and for which he was not given the opportunity to make submissions. He further submits that the Officer was required to inform him that his spouse’s conviction in Canada for an offence tied to the tobacco trade would be used against him.
[5] The Applicant also submits that the decision is unreasonable. He contends that the Officer either ignored or unreasonably discounted explanations he gave in response to concerns raised by the Officer.
[6] For his part, the Minister of Citizenship and Immigration (the “Respondent”
) argues that there was no breach of procedural fairness and that the decision meets the legal standard of reasonableness.
[7] Issues of procedural fairness are subject to review on the standard of correctness; see the decision in Canada (Citizenship and Immigration) v. Khosa, [2009] 1 S.C.R. 339 (S.C.C.).
[8] Following the decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, [2019] 4 S.C.R. 653 (S.C.C.), the merits of the decision are reviewable on the standard of reasonableness.
[9] In considering reasonableness, the Court is to ask if the decision under review “bears the hallmarks of reasonableness – justification, transparency and intelligibility – and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision”
; see Vavilov, supra, at paragraph 99.
[10] Upon considering the materials submitted and the submissions of the parties, I am satisfied that the decision in issue was made in breach of procedural fairness because the Applicant was not sufficiently informed of his case to meet.
[11] The procedural fairness letter put the Applicant on notice that the Officer was concerned by his ties to the tobacco trade. However, the letter lacked specificity. It did not provide him with the opportunity to respond to the allegation that his spouse’s conviction demonstrated his participation in organized crime.
[12] This finding is sufficient to dispose of this matter and it is not necessary for me to address the other arguments raised by the parties.
[13] In the result, the application for judicial review will be allowed, the decision will be set aside and the matter will be remitted for redetermination by another officer. There is no question for certification.
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