Category: Administrative Law Cases

The court set aside a decision that a marriage was not genuine due to the failure of the officer to consider the documentary evidence.

The Court found no reviewable error in the conclusion by the Appeal Division that when there were credibility issues related to the genuineness of the relationship the failure of the applicant to testify could result in an adverse inference.

The Court held that the applicant was detained when he was held in a detention facility by CBSA and hence had a right to counsel. As a result of the breach of his right to counsel the exclusion order was set aside: 28 In the circumstances of the present matter, I adopt the conclusions of Justice MacKay in Dragosin at paragraph that the Applicant's right to counsel arose from the moment he was ordered to be detained which, in effect, was on July 8, 2006, when he was arrested by the CBSA Officer. This arrest triggered the duty to provide advice about, and to facilitate access to, legal counsel (Dragosin, above, at para. 16). Potential access to a telephone in the detention area, or merely asking the Applicant if he knew a particular lawyer that he wished to contact, was insufficient to discharge the obligation to facilitate access to legal counsel. The failure to do so in the circumstances of this matter was not consistent with the Applicant's section 10(b) Charter rights, and constituted a legal error (Dragosin, above, at paras. 16, 20).

The Court set aside a refusal to reopen. The applicant had obtained new evidence after the refusal that had undermined the previous decision: So it is in this case. The Panel had every reason to consider the original police report to be forged. Had it had information that it was not forged, Ms. Lopez Diaz may or may not have been found to be credible. It is not for this Court to say (Cardinal v. Kent Institution, [1985] 2 S.C.R. 643). If she had been found credible, then the Panel would have been obliged to consider state protection, and perhaps the internal flight alternative.[17] The Minister submits that the application to reopen is an abuse of process in that an application for leave and for judicial review of the Panel’s original decision was dismissed. Reference was made to my decision in Skandrovski v. Canada (Minister of Citizenship and Immigration), 2005 FC 341, 29 Admin. L.R. (4th) 70. However, reliance thereon is misplaced. I said it would not do to have the Board unwittingly and unknowingly in effect review a decision of this Court not to grant leave. That is not what happened in this case. The “new facts” which were put before the Panel on the application to reopen were not before the Court in the application for leave. As I said in para. 16 of Skandrovski: That is not to say that there is no room for an application to reopen a claim if leave were denied by this Court. New facts could come to light. […] That is exactly what happened in this case; new facts which were brought to the attention of the Board. The decision under review is wrong in law. These are issues of natural justice.

The Court granted a stay of proceeding holding that the conduct of the US and the violations of Khadr's rights resulted in an abuse of process.

The Court found the tribunal's reasons inadequate.

The Court set aside a decision refusing release holding that the member failed to consider the length of detention: [31] However, section 248 of the Regulations adds the length of detention as a consideration to be taken into account even if the person detained is considered to be a flight risk, as in this case. The length of the applicant's detention has to be considered against other factors besides his refusal to cooperate with Immigration Officials and to reveal his true identity. These other factors would include the immigration status of the applicant, the fact that this was the 38th detention review, the passage of time since his last criminal conviction, etc. I am of the view from a close reading of the member’s reasons that the 3-year detention of the applicant was not considered against these factors: Panahi-Dargahlloo, above, at para. 50. [32] Reaching a conclusion similar to that of my colleague Justice Mandamin in Panahi- Dargahlloo, above, at para. 51, I find that the member's failure to consider the length of the applicant’s detention in his assessment of whether or not to continue with detention was unreasonable and outside of the range of possible and acceptable outcomes

The Court found the delay in processing the application unreasonable and granted mandamus: 20 CIC's lack of diligence in the applicants' file is shocking and in direct contradiction with IRPA's objective, set out in its paragraph 3(1)(f), "to support, by means of consistent standards and prompt processing, the attainment of immigration goals established by the Government of Canada" (emphasis mine).21 In addition, as I held in Conille, above, the necessity to conduct security and background checks is no justification for administrative inaction. In the absence of any statutory limits on the length of an investigation, it can serve as a convenient excuse for indefinite delay, which the Court will not accept. In each case, the Court must ask itself whether the facts are such that the administrative delay is reasonable or not. Much of the delay in the case at bar appears to be due to CIC's neglect and is thus unreasonable.

The Court concluded that the officer had jurisdiction to reopen a negative decision on a skilled worker application but did not err in refusing to do so because the applicant had sufficient notice of the requirements and failed to comply with them.

The Court concluded that the date the application was received was the relevant date for the application of the eligibility rules not the day it was sent.