PASEUTH PATHOUMVIENG Applicant v. THE MINISTER OF CITIZENSHIP AND, 2011 FC 523
Opinion
Federal Court Cour fédérale Date: 20110506 Docket: IMM-5691-10 Citation: 2011 FC 523 Ottawa, Ontario , May 6, 2011 PRESENT: The Honourable Mr. Justice O'Reilly BETWEEN: PASEUTH PATHOUMVIENG Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Defendant 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.
Pathoumviengs 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 officers 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 officers decision. The officers reference to Mr. Pathoumviengs volunteer work as a janitor was merely a parenthetical observation in the officers 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 officers reference to Mr.
Pathoumviengs 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 brothers 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 brothers 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 brothers house and church. [ 8 ] It appears to me that the officer ultimately considered Mr. Pathoumviengs 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. Pathoumviengs 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 officers 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 officers 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 childs biological parents. Justice Sean Harrington found that the officers 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 applicants 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 officers 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 officers 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. Pathoumviengs 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 COURTS JUDGMENT is that 1. The application for judicial review is dismissed. 2. No question of general importance is stated. James W.
OReilly Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-5691-10 STYLE OF CAUSE: PASEUTH PATHOUMVIENG v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Toronto , Ontario DATE OF HEARING: April 21, 2011 REASONS FOR JUDGMENT AND JUDGMENT: OREILLY J. DATED: May 6, 2011 APPEARANCES :
Paul Vandervennen FOR THE APPLICANT Jane Stewart FOR THE RESPONDENT SOLICITORS OF RECORD : Vandervennen Lehrer Barristers & Solicitors Toronto, Ontario FOR THE APPLICANT Myles J. Kirvan Deputy Attorney General of Canada FOR THE RESPONDENT
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