Date: 19980514
Docket: IMM-2892-97
BETWEEN:
MING DONG JIANG
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
(Delivered orally from the Bench on April 21, 1998, as edited)
MCKEOWN J.
[1] The applicant, a citizen of China, seeks judicial review of a decision dated October 30, 1996, of the Minister of Citizenship and Immigration (the "Minister") that the applicant was not eligible for inclusion in the Deferred Removal Orders Class ("DROC").
[2] The issue is whether, on the facts of this case, the applicant hindered or delayed the execution of a removal order dated July 24, 1992. It is clear that if the applicant did not hinder or delay, then the Minister's decision that the applicant is not a member of the DROC is based on an erroneous finding of fact made in a perverse or capricious manner.
[3] On December 6, 1995, the Removals Officer, Mr. Jordan, sent a letter to the applicant requesting that he confirm his travel arrangements for leaving Canada on or before January 8, 1996. The applicant replied by letter dated January 2, 1996, as follows:
| I am sorry that up to now I am not able to do anything with respect to the removal order which was issued to me on July 24, 1992. |
No further demands for information were made by the Minister, and no further information was provided by the applicant.
[4] A decision of October 30, 1996 (communicated to the applicant and his counsel in June and July 1997) stated:
| This lack of cooperation delayed your removal thereby allowing you to enter the eligibility period for DROC which for you was 08 July 1996. |
[5] However, the said decision letter of October 30, 1996, also reviewed a letter that had been sent to the Minister by the applicant's counsel on October 25, 1996, which stated the reasons why the applicant had been unable to make travel arrangements. In essence, the applicant was told by the Embassy for China that it would take three months to process his application and that he needed a seaman's book that was with Canada Immigration. However, the Minister's delegate, in the decision letter, decided to minimize this information and said that it should have been provided in January 1996 and not after July 1996.
[6] It is important to look at the wording of the Immigration Regulations. Paragraph 2(1)(f) of the Immigration Regulations (SOR/94-681) reads as follows:
| Members of the deferred removal order class means an immigrant: |
| ... |
| (f) where the immigrant is subject to an exclusion order or a deportation order, has not hindered or delayed its execution, including failing to present himself or herself for a pre-removal interview or for removal in accordance with removal arrangements made by an immigration officer. |
[7] The intent of Parliament is shown in the regulatory impact analysis statement published the DROC regulation amendments, which reads as follows:
| Persons who have evaded removal by failing to report for removal when directed to do so by immigration authorities or who have gone 3underground3, changing identities, avoiding contact with Immigration, moving frequently without notifying immigration authorities or engaging in other forms of subterfuge do not meet the requirements for membership in the class. |
[8] As Cullen J. stated in Mitov v. Canada (Minister of Citizenship and Immigration) (1996), 107 F.T.R. 228 at 230: "Undoubtedly this provision is sound."
[9] While the regulatory impact analysis statement is not binding on me, I adopt the reasoning contained therein and note that it requires active involvement by the applicant in hindering or delaying removal. This applicant kept in touch with the Immigration authorities, he always notified the authorities of any change of address, and he did not engage in subterfuge in any way. Accordingly, I am unable to conclude that this applicant was hindering or delaying the execution of the removal order on the unique facts of this case.
[10] The application for judicial review is allowed. The decision dated October 30, 1996, is set aside. The matter is returned to the Minister for redetermination in a manner not inconsistent with these Reasons.
William P. McKeown
JUDGE
OTTAWA, Ontario
May 14, 1998.