Date: 20051208
Docket: IMM-1769-05
Citation: 2005 FC 1671
Ottawa, Ontario, the 8th day of December 2005
Present: The Honourable Chief Justice Lutfy
BETWEEN:
WEN CHIN CHIU, YU CHUAN WANG,
YA LING CHIU & SHIAO LING CHIU
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] In March 2001, the applicants landed in Canada as permanent residents on the basis of Wen Chin Chiu's admission as an entrepreneur immigrant. The other applicants in this application for judicial review are Mr. Chiu's spouse and their two younger daughters.
[2] Mr. Chiu first invested in an educational institution in British Columbia. Because of business difficulties, the school operations began to unravel in 2002 and eventually ceased in early 2003.
[3] Shortly thereafter, the respondent's officials began their investigation concerning the terms and the conditions which Mr. Chiu was to have met under the applicable immigration legislation and regulations. In October 2003, as a result of this inquiry, removal orders were issued against the applicants.
[4] In late 2003, Mr. Chiu began to establish a business in the renovation of houses.
[5] The applicants filed an appeal from the removal orders before the Immigration Appeal Division (the "IAD") on the basis of humanitarian and compassionate considerations. This proceeding is the application for judicial review of the decision by the IAD to dismiss the applicants' appeal.
[6] Mr. Chiu's eldest daughter, Shan Ling Chiu, arrived in Canada in 1999 on a student visa. The IAD allowed her appeal of the removal order on the basis of humanitarian and compassionate considerations. As a result, she is not a party to this proceeding.
[7] The applicants' first submission is that the IAD was not "alert, alive and sensitive" to the interests of the two younger Chiu daughters by refusing to receive the testimony of their mother, the applicant Yu Chuan Wang. Counsel for the applicants in this Court preferred that she be referred to as Mrs. Chiu.
[8] The record does not support the applicants' representations on this issue. In the hearing information sheet, the applicants disclosed that the witnesses at the hearing would be the two parents and their eldest daughter, Shan Ling Chiu.
[9] The IAD hearing took place in Vancouver in July 2004. The eldest daughter was to return to her studies at the University of Western Ontario the following September. To accommodate this daughter's commitments in central Canada, the then counsel for the applicants properly suggested that her testimony be received prior to her mother's in the event the hearing could not be completed that day:
. . . I hope we can finish this hearing today, but in the event that we have to get into a resumption, I might have to reverse the order of the witnesses but the daughter, . . . , studies in Ontario and I was afraid that if the resumption is going to be after September, then we might want to bring her up first.
The panel member agreed to this arrangement.
[10] Towards the end of the hearing, after Mr. Chiu and his eldest daughter had testified, there was the following exchange between the panel member and counsel for the applicants concerning the advisability of having Mrs. Chiu testify:
PRESIDING MEMBER: . . . Again I'm cognizant of the time, Now, [counsel], are you still intending to call the other appellant, Ms. Wang? Well, I guess my question is: What was going to be the nature of her evidence? Was it -- that would be my question.
[COUNSEL]: In the nature of the daughter's. Just basically, you know, ever since they've been in Canada now, what do they like about Canada, how -- what would happen to the family if they were sent back to Taiwan basically.
PRESIDING MEMBER: I think, in the circumstances, I don't think I'll need to hear from that witness, but I think that it's kind of a late hour in order to make submissions and I guess my question -- that would be -- that was all your evidence, right?
[COUNSEL]: That will be all.
[Emphasis added.]
After this exchange, the panel received oral submissions from the Minister's counsel. Some ten days later, the applicants' counsel filed written submissions without mentioning the issue of Mrs. Chiu's testimony.
[11] The applicants' IAD counsel acquiesced in the panel's suggestion that Mrs. Chiu need not testify. There is nothing in the record to suggest that counsel would not have been accommodated had he insisted on having Mrs. Chiu testify. Even after some time for reflection, he did not raise this issue in his written submissions.
[12] Also, Mr. Chiu spoke directly to the hardship that would be caused to his younger two daughters upon their return to Taiwan. Similarly, the eldest daughter expressed her concern for her siblings if they were to return to their country of citizenship. There was evidence before the IAD upon which the humanitarian and compassionate considerations with respect to the younger daughters could be considered. In these circumstances, I am satisfied that there was no breach of natural justice or procedural fairness by the panel as a result of Mrs. Chiu not testifying.
[13] The applicants' IAD counsel did not disclose any intention, either prior to or during the appeal hearing, to have the two younger daughters, now aged respectively 20 and 16, testify.
[14] In my view, the findings made by the IAD in dismissing the appeals of the four applicants were not patently unreasonable (see Khosa v. Minister of Citizenship and Immigration, 2005 FC 1218 at paragraphs 24 to 31). On my analysis of the record, there was no reviewable error made by the panel in determining that immigration officials had afforded "ample time" to Mr. Chiu to fulfill the terms and conditions prior to the initiation of the removal proceedings. Mr. Chiu acknowledged that he had no prior business experience in either education or the renovation of houses.
[15] The applicants also urge that the IAD decision be set aside because of the panel's alleged failure to provide reasons for its refusal to grant stays to the two younger Chiu daughters under subsection 68(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "Act").
[16] Under section 66 of the Act, the IAD may allow the appeal, dismiss the appeal or stay the removal order:
66. After considering the appeal of a decision, the Immigration Appeal Division shall
(a) allow the appeal in accordance with section 67;
(b) stay the removal order in accordance with section 68; or
(c) dismiss the appeal in accordance with section 69.
66. Il est statué sur l'appel comme il suit :
a) il y fait droit conformément à l'article 67;
b) il est sursis à la mesure de renvoi conformément à l'article 68;
c) il est rejeté conformément à l'article 69.
[17] Paragraph 67(1)(c) of the Act authorizes the IAD to allow an appeal if it is satisfied that:
. . . taking into account the best interests of a child directly affected by the decision, sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case.
. . . il y a - compte tenu de l'intérêt supérieur de l'enfant directement touché - des motifs d'ordre humanitaire justifiant, vu les autres circonstances de l'affaire, la prise de mesures spéciales.
Subsection 68(1) of the Act authorizes the IAD to stay a removal order on the same basis.
[18] The applicants' argument is that the IAD, having decided to dismiss the appeals under paragraph 67(1)(c) of the Act, failed to conduct the required analysis under subsection 68(1) as to whether a stay should be granted to the two younger daughters for humanitarian and compassionate considerations.
[19] The applicants do not challenge the adequacy of the IAD's reasons for dismissing the appeals under paragraph 67(1)(c):
[25] I have specifically considered the hardship of removal to the minor appellants and their best interests. . . . I find it is in the best interests of the minor children that they remain a family unit with their parents . . .
[. . .]
[26] . . . I do not consider the circumstances of this case to be appropriate to warrant the granting of a stay of the execution of the removal orders because of [Mr. Chiu's] continued failure to comply with terms and conditions after landing in Canada.
[Emphasis added.]
[20] Early in its decision, the IAD noted the relevant factors to be considered in the exercise of its discretion, including the best interests of the children directly affected by the outcome. Reviewing the above-cited extracts of the decision against this background, I am satisfied that the IAD considered the best interests of the two younger Chiu daughters in a context of whether to grant them a stay. Its conclusion that the two daughters should "remain a family unit with their parents" would be inconsistent with any finding that they should be granted a stay upon the deportation of their parents.
[21] In my view, the decision made by the IAD is not patently unreasonable and I am not persuaded that it should be set aside for the inadequacy of the reasons.
[22] Counsel for the applicants, properly in my view, withdrew the constitutional challenge during his oral submissions before this Court. The proposed attack against the legislative provisions upon which the removal orders were based could not succeed in view of the position taken by the applicants before the IAD that the legal validity of the removal orders was not in issue. The applicants filed their notice of constitutional question some three weeks prior to the date of the hearing. While I understand the inconvenience caused to counsel for the respondent by having to prepare supplementary materials on short notice, I do not think that this is a situation which warrants an order concerning costs.
[23] Accordingly, this application for judicial review will be dismissed. Neither party suggested the certification of a serious question.
ORDER
This application for judicial review is dismissed.
"Allan Lutfy"
CHIEF JUSTICE
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1769-05
STYLE OF CAUSE: WEN CHIN CHIU, YU CHUAN WANG, YA LING CHIU & SHIAO LING CHIU v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: November 7, 2005
REASONS FOR ORDER
AND ORDER OF: CHIEF JUSTICE LUTFY
APPEARANCES:
Mr. Lawrence Wong FOR THE APPLICANTS
Ms. Banafsheh Sokhansanj FOR THE RESPONDENT
SOLICITORS OF RECORD:
Wong Pederson Law Offices FOR THE APPLICANTS
Vancouver, British Columbia
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada