Toan Cong Vu (Appellant)
v.
Minister of Manpower and Immigration
(Respondent)
Court of Appeal, Thurlow J., Sheppard and
Bastin D.JJ.—Vancouver, B.C., May 2 and 4,
1973.
Immigration—Deserter from South Viet Nam navy
ordered deported—Affirmed by Immigration' Appeal Board—
Refusal to consider "compassionate or humanitarian" con-
siderations—Immigration Appeal Board Act, s. 15(1)(b)(ii).
The Immigration Appeal Board dismissed an appeal from
a deportation order against a deserter from the South Viet
Nam navy, and refused to exercise its discretion to stay or
quash the order under section 15(1)(b)(ii) of the Immigration
Appeal Board Act on compassionate or humanitarian con
siderations, expressing the view that it was not up to the
Board to shield the applicant from his country's laws.
Held, the matter should be referred back to the Board for
re-hearing and re-determination.
APPEAL from Immigration Appeal Board.
COUNSEL:
Stuart Rush and D. Mossop for appellant.
D. Boon for respondent.
SOLICITORS:
Boulton and Rush, Vancouver, for
appellant.
Deputy Attorney General of Canada for
respondent.
THURLOW J.—This is an appeal by leave
under section 23 of the Immigration Appeal
Board Act from a judgment by which the Immi
gration Appeal Board dismissed an appeal from
an order for deportation made against the appel
lant on May 17th, 1971 and directed that the
deportation order be executed as soon as practi
cable. In the appeal no question was raised as to
the validity of the deportation order; what was
challenged was the determination of the Board
not to grant the appellant relief from it under
section 15(1)(b)(ii) of the Immigration Appeal
Board Act.
That section reads as follows:
15. (1) Where the Board dismisses an appeal against an
order of deportation or makes an order of deportation
pursuant to paragraph 14(c), it shall direct that the order be
executed as soon as practicable, except that the Board may,
(b) in the case of a person who was not a permanent
resident at the time of the making of the order of deporta
tion, having regard to
(ii) the existence of compassionate or humanitarian
considerations that in the opinion of the Board warrant
the granting of special relief,
direct that the execution of the order of deportation be
stayed, or quash the order or quash the order and direct the
grant or entry or landing to the person against whom the
order was made.
Before the Immigration Appeal Board the
appellant also asked relief under section
15(1)(b)(î) but on the appeal to this Court no
point was raised as to the failure of the Board to
grant relief under that particular provision.
The appellant is a citizen of South Viet Nam
who at the time of the making of the deportation
order was 22 years old. In 1969 he had enlisted
in the navy of South Viet Nam for a ten year
period of service to avoid being drafted into the
army of that State. In 1970 he was sent to a
naval station in the United States to study elec
tronics but after several months he left the
station and on January 12th, 1971 entered
Canada as a visitor with permission to remain in
Canada until the 12th of the following month.
At that time he had in his possession a South
Vietnamese passport which had expired in
November 1970 and which had been valid for
the United States of America via the Philippines
and a military non-immigrant visa issued by the
Embassy of the United States at Saigon, valid
until October 20, 1971.
On February 8, 1971, he applied at Vancou-
ver for permanent residence in Canada but on
February 15th a report under section 23 of the
Immigration Act was made alleging that he was
not in possession of a valid passport or of a
valid and subsisting immigrant visa as required
by sections 27 and 28 respectively of the Immi
gration Regulations. A special inquiry followed
and resulted in the deportation order in question
the basis for which was his ineligibility for
admission for permanent residence because he
did not have the required passport and visa.
On his appeal to the Board a certificate of an
attorney-at-law in Saigon was presented which
indicated that by deserting his naval service the
appellant had become liable under the law of
South Viet Nam to imprisonment at hard labour
for from 5 to 20 years, to be sent to the front
line in a penitentiary unit while serving the
sentence and to be stripped of all rights or
advantages including rights to pay and to pen
sion if disabled.
In their reasons for judgment the majority of
the Board, after setting out the facts posed for
itself the question:
In this matter, can the Court exercise the special jurisdic
tion it holds under section 15 of the Immigration Appeal
Board Act?
It then referred to section 15(1)(b)(î) and con
cluded that neither the appellant's desertion
from the navy nor the punishment that might be
imposed therefor could be regarded as political
activity and that if the appellant suffered unusu
al hardship on his return to Viet Nam it would
be the same hardship as that suffered by his
brother and compatriots engaged in the defence
of that country, and also by deserters. What
followed from these conclusions was not stated.
The opinion then proceeded.
Subparagraph (ii) of Section 15(1) mentions the existence
of compassionate or humanitarian considerations that may
warrant the granting of special relief. Should the Court have
compassion on the appellant and deem it inhuman to subject
him to the laws of his own country? Where the appellant
now stands, does he come under the jurisdiction of Canadi-
an courts or the courts of his own country? Because he
deserted from the South Vietnamese Navy, is it up to the
Board to judge his act? Because he is liable to punishment,
is it up to the Board to shield him from the penalties to
which he may be exposed? Even if it feels compassion for
the appellant, this Court cannot, in the circumstances,
assume the right to accept him when he is not admissible to
Canada as an immigrant.
It will be observed that what the majority of
the Board has done in this part of its reasons is
to pose a series of questions without answering
any of them. The relevance of answers to these
questions is, moreover, not apparent and since
the subject-matter of the questions is not con
fined to the existence, by present day Canadian
standards, of compassionate or humanitarian
considerations or to whether such considera
tions warrant the granting of special relief the
judgment is open to the objection that it has
been based on irrelevant considerations.
Nor has any finding been made as to whether
or not compassionate or humanitarian consider
ations existed in the appellant's situation. Had
the majority made a finding, on that question, as
it was, in my opinion, bound to do, it would then
have become its duty to consider and determine
whether such compassionate or humanitarian
considerations as did exist warranted the grant
ing of special relief. To fall short of addressing
its attention to and determining these two ques
tions was, in my opinion, to fail to exercise the
Board's jurisdiction under the statute and to my
mind the last sentence of the quoted paragraph,
if it does not amount to a complete denial of the
Board's jurisdiction, at least shows that the
majority had reached no conclusion on whether
or not compassionate or humanitarian consider
ations did exist in the situation or what they
might be.
It was open to the Board on the evidence to
find that compassionate and humanitarian con
siderations existed in the appellant's situation
and if so to decide whether they were such as to
warrant special relief and the failure of the
majority to make a finding as to whether such
considerations existed and what they were and
thereupon to consider and determine whether
they warranted special relief in my opinion
amounted to a failure to exercise the Board's
jurisdiction.
I would allow the appeal and refer the matter
back to the Board for re-hearing and re-determi
nation of the appellant's appeal.
* * *
SHEPPARD D.J.-I concur.
* * *
BASTIN D.J.-I concur.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.