Date: 20000309
Docket: IMM-6109-98
BETWEEN:
GUO PING WU
HU YUNG DENG
KEVIN WU (minor)
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.:
Introduction
[1] These reasons arise out of an application for judicial review of a decision of an Immigration Officer (the "Immigration Officer") in which the Immigration Officer rejected the application of Guo Ping Wu (the "male applicant") and Hu Yung Deng (the "female applicant") for landing from within Canada on humanitarian or compassionate grounds (the "H & C application"). The decision of the Immigration Officer is dated the 9th of November, 1998.
Background
[2] The male applicant and the female applicant (collectively, the "adult applicants") are citizens of the People"s Republic of China. The male applicant arrived in Canada on the 6th of May, 1990 while the female applicant arrived on the 14th of April, 1991. The adult applicants are married. Kevin Wu is their 6-year-old son, born in Canada.
[3] Both of the adult applicants claimed Convention refugee status on the basis of their political opinion. Their claims were rejected on the 7th of January, 1992. They were considered for landing as members of the Deferred Removal Orders Class and were approved in principle as members of that class on the 21st of June, 1995.
[4] In mid-May of 1998, the approval in principle for the adult applicants as members of the DROC class was revoked because the male applicant had been convicted of selling cigarettes on which no taxes had been paid. The adult applicants were advised that removal orders outstanding against them would be executed and that their Canadian-born son could be sent with them to the People"s Republic of China if they so chose.
[5] The applicants applied for a stay of their deportation. By order dated the 21st of May, 1998, Mr. Justice Muldoon of this Court granted a stay in the following terms:
| ... |
| (2) The Minister, her officers and employees are forbidden from removing or attempting to remove the applicants from Canada until the applicants can obtain: |
| (a) a humanitarian and compassionate (H & C) review and decision, including a risk assessment of their prospective removal to the Peoples" Republic of China, and if such decision be unfavourable to them; |
| (b) a considered and disposed application (which they would be obliged to institute) for leave and judicial review of that unfavourable H & C decision; and |
| (3) It is a condition of the continuation in force of this stay of removal for its prescribed term that the applicants shall, not later than close of business on June 26, 1998, make application and tender the requisite fee for their aforesaid h. & c. review.1 |
[6] Mr. Justice Muldoon apparently gave oral reasons for his order and confirmed those oral reasons by written reasons dated the 17th of December, 1998. The written reasons read in part as follows:
| ... |
| [4] The oral reasons made reference first to a serious issue to be determined. It resides in maladministration, which in turn sounds in fairness, or not, and overrides all other issues in weight and importance. The applicants need a humanitarian and compassionate review which must include what, to the applicants, will be their first risk assessment. Such assessment is needed in view of the effluxion of time, and the birth of their son. |
| [5] Irreparable harm would be to leave their son, seemingly forever, behind in Canada where he is a natural-born citizen. Anyone who is a parent or grand-parent needs no convincing that such amounts to irreparable harm. Furthermore, the other choice, to take Kevin with them to live in China appears almost certain to do him irreparable harm. Also, if and when the applicants return to China they face the prospect of persecution - and no one can gainsay that, without a risk assessment, since there will be little or no chance for them of returning to Canada or of even leaving China. An H & C review ought to be humanitarian and compassionate, much broader, in fact than a cold assessment of risk. |
| [6] Regarding balance of convenience, everyone knows that the M.C.I. is obliged to execute removal orders, but a stay here will do no more than inconvenience the Minister, whereas without it the applicants and their Canadian son will be gone forever.2 |
[7] The male applicant claims he fears persecution if he is required to return to the People"s Republic of China by reason of his pro-democracy activism in the Tiananmen Square protests in 1989, his subsequent re-education in China, his flight from China to Canada and his annual participation since his arrival here in Tiananmen Square memorial demonstrations.
[8] The female applicant claims to fear a risk of forced sterilization by reason of her flight to Canada, her relationship with the male applicant and the birth of her child here in Canada.
[9] Both adult applicants fear that their son, if they were required to return to the People"s Republic of China and were to take him with them, would not be eligible for citizenship in the People"s Republic of China and would be barred access to schools and to medical coverage.
The Humanitarian and Compassionate Decision
[10] While the notice provided to the applicants of the rejection of their request for landing from within Canada provided no reasons for the rejection, the "Officer"s Recommendation/Decision and Rationale", later made available to the applicants, is worth quoting here in full3 :
| After careful consideration of the evidence presented, information provided by both Guo Wu and Hui Deng, as well as a review of the recent risk assessment done, I am of the opinion that insufficient grounds exist to warrant inland processing. |
| Mr. Wu stated that he felt he would be put in jail if returned to China for having participated in yearly mass in Canada; the risk officer noted, from the evidence she reviewed, the Chinese Government does not appear interested in events surrounding Tianamen [sic] Square. |
| As well, the couple expressed fear of facing punishment upon their return for leaving the country illegally, yet news reports indicate that Chinese authorities do accept people returning to China who have left the country illegally. |
| Hui Deng also expressed fear of returning to China for fear of forced sterilization since she already has one child; yet the risk officer referred to the recent D.O.S. report (Department of State"s Country Report on Human [Rights] Practices) which provided that the Government prohibits the use of forced [sic] to compel persons to submit to abortion or sterilization. |
| The couple referred to the hardship suffered by their son, who has known no other life other than Canada and would face hardship for not [sic] having no schooling and no health coverage; however, the risk officer could find no compelling, persuasive evidence to support this statement. |
| As well, while the child was born in Canada, he is now only five years old, and I submit fully capable of adapting to life in China without any real hardship. |
| The couple failed to satisfy me that severe hardship would occur if forced to return to China. |
| While they have been gainfully employed in Canada for the last four years, they were in receipt of money from the Ministry of Community and Social Services for their first two years in Canada. |
| While they have upgraded their English skills since their arrival in Canada, they are by no means fluent and required the use of an interpreter during the interview. |
| Overall, the hardship the couple have expressed upon their return to China has been closely looked at and I am of the opinion that insufficient grounds exist to warrant approval of their applications for permanent residence.4 |
[11] The notes clearly predate the Baker decision (supra) in the Supreme Court of Canada. The reference to a lack of "compelling, persuasive evidence" to support the adult applicants" concern that, if their child were to go to the People"s Republic of China, he would be deprived of schooling and health coverage hardly reflects the standard of being "alert, alive and sensitive" to children"s best interests that Madame Justice L"Heureux-Dubé indicates in paragraph 75 of that decision is appropriate on humanitarian and compassionate applications.
[12] It is further to be noted that, in the foregoing text, the Immigration Officer relies heavily, without further comment or analysis, on the "recent risk assessment". Counsel for the applicants submitted that the risk assessment, which appears in the Tribunal Record that is before the Court, was treated by the Immigration Officer as akin to an expert opinion. I agree with that characterization. On its face, it discloses that the officer who prepared it consulted documentary sources not provided by the applicants in support of their H & C application and which neither the applicants nor their counsel could reasonably have been expected to identify as documentation that they should have submitted or at least commented on in their submissions.
Analysis
[13] In Haghighi v. Canada (Minister of Citizenship and Immigration)5, I dealt with a remarkably similar fact situation, but for the fact that no Canadian-born child was there affected. In that case, a citizen of Iran had been denied the opportunity for landing from within Canada on humanitarian and compassionate grounds. As here, the decision maker relied heavily on a risk assessment prepared by another officer in the respondent"s ministry. In turn, the officer preparing the risk assessment had relied on documentary sources of information not provided by the applicant. As here, the applicant was given no opportunity to respond to the risk assessment before his application for landing from within Canada was denied. In paragraph 15 of my reasons, I wrote:
| ... it seems to me, the question has become whether the immigration officer, in failing to share a document such as the PCDO"s recommendation and its rationale [the risk assessment], and thereafter relying on it, has denied the person or persons whose interests are affected, here the applicant, "... a meaningful opportunity to present [his] case fully and fairly" or has denied the applicant "... a meaningful opportunity to present the various types of evidence relevant to [his] case and have it fully and fairly considered". |
On the basis of Baker, supra, I concluded that such a denial had taken place. I reach the same conclusion here. On this ground alone, this application for judicial review will be allowed.
[14] I will comment very briefly on two other aspects of this matter.
[15] The applicant Kevin Wu is a Canadian citizen and is at no risk of deportation. The rejection of his parents" H & C application affects him only indirectly, albeit that the indirect effects could be very dramatic. I am satisfied that he has no standing on this application.6 My order allowing this application for judicial review will strike Kevin Wu as a party applicant.
[16] In the further memorandum of argument filed on behalf of the applicants herein on the 3rd of February, 2000, the applicants seek extensive directions to the respondent if the decision here under review is referred back for redetermination, as it will be. At the hearing before me, the request for special directions was withdrawn.
Conclusion
[17] For the foregoing reasons, this application for judicial review will be allowed, the decision under review will be set aside, and the adult applicants" application for landing from within Canada will be referred back to the respondent for redetermination taking into account these reasons and, in particular, the reasons of the Supreme Court of Canada in Baker, supra .
[18] Kevin Wu will be struck as a party applicant.
Certification of a question
[19] In Haghighi, supra, I certified the following question:
| Does an Immigration Officer assessing an application for landing from within Canada on humanitarian or compassionate grounds pursuant to subsection 114(2) of the Immigration Act breach the duty of fairness owed to an applicant where he or she relies on a document prepared at the request of the Officer, such as a Post-Claim Determination Officer"s recommendation and rationale, where such document is not disclosed to the applicant and the applicant is given no opportunity to respond to it? |
Based on certification of the foregoing question, as noted above, my decision in Haghighi has been appealed. I have determined this matter on the same basis on which Haghighi was determined. Counsel appearing before me were in agreement that it would be appropriate to certify in this matter the same question that was certified in Haghighi. The foregoing question will be certified.
J.F.C.C.
Ottawa, Ontario
March 9, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-6109-98 |
| STYLE OF CAUSE: GUO PING WU |
HU YUNG DENG
KEVIN WU (minor)
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
| DATE OF HEARING: WEDNESDAY, MARCH 1, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: GIBSON J. |
| DATED: THURSDAY, MARCH 2, 2000 |
| APPEARANCES: Mr. Raoul Boulakia |
| For the Applicant |
| Mr. Stephen Gold |
| For the Respondent |
| SOLICITORS OF RECORD: Raoul Boulakia |
Barrister and Solicitor
45 St. Nicholas St.
Toronto, Ontario
M4Y 1W6
| For the Applicant |
Morris Rosenberg
Deputy Attorney General of Canada
| For the Respondent |
FEDERAL COURT OF CANADA
Date: 20000302
Docket: IMM-6109-98
Between:
| GUO PING WU |
HU YUNG DENG
KEVIN WU (minor)
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
__________________
1 Tribunal Record, pp. 186-187.
3 See Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 S.C.R. 817 where, at paragraph 44 on page 848, Madame Justice L"Heureux-Dubé noted that notes such as these: "... should be taken, by inference, to be the reasons for decision."
4 Applicant"s Application Record, page 302.
5 [1999] F.C.J. No. 1367 (F.C.T.D.) (Q.L.). Notice of appeal filed September 22, 1999, Court File No. A-587-99.
6 See Langner v. Ministre de l"emploi et de l"immigration, et al (1995), 184 N.R. 230 (F.C.A.) and, by analogy, Carson v. Canada (Minister of Citizenship and Immigration) (1995), 95 F.T.R. 137.