Date: 20080523
Docket: IMM-2161-08
Citation: 2008 FC 660
BETWEEN:
UGOCHUKWU
COLLINS
Applicant
and
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY
PREPAREDNESS
Respondent
REASONS FOR
ORDER
HARRINGTON J.
[1]
These
are the Reasons why I granted a stay of Mr. Ugochukwu’s removal to Nigeria, scheduled
for this evening.
[2]
Mr.
Ugochukwu filed a refugee claim which was refused in 2004, as was his
application for leave and for judicial review. The decision on his Pre-Removal
Risk Assessment issued in April 2006 was also negative.
[3]
He
applied for permanent status within Canada as a member of the
family class, but was rejected because at the material time his wife was on
social assistance and ineligible to sponsor him. A subsequent straight H& C
application was also refused.
[4]
When
he was called in on May 5 for an interview to arrange his removal, he attended
with his wife and children, and pointed out to the officer that a fresh spouse
or common-law partner in Canada class application had been filed. He
swears that he provided supporting documentation, and the officer who
interviewed him that day has not filed an affidavit in rebuttal.
[5]
He
was considered a flight risk and detained. His counsel then wrote to the
enforcement officer to formally ask for a deferral on the same basis. The
request was refused; hence the application for leave and for judicial review
and the motion for a stay.
[6]
The
reasons for the decision were given by another officer and are found in notes
to file which comprise a single page. These notes are dated May 12. The
principal reason for the refusal was “there is no administrative deferral to
applicants who are inadmissible for serious criminality under (A36)”, which is
a reference to s. 36 of the Immigration and Refugee Protection Act.
However the officer completely misread the file, as the requisite report to the
Minister under s. 44 of the Act had been withdrawn for insufficient evidence.
[7]
The
notes continue “furthermore” and recite Mr. Ugochukwu’s history in Canada, including
the negative PRRA and state “there is no evidence in Foss or on file that
spouse has filed another sponsorship application, regardless, the simple filing
of an H&C application, does not provide a stay, and therefore not a
justifiable reason for deferral.”
[8]
It
is conceded that it takes some time for records to be updated, and there is
nothing to contradict the applicant’s affidavit that he provided an
“application to sponsor an undertaking” to the first officer, copy of which was
filed in the court record.
[9]
Counsel
for the Minister concedes the error with respect to serious criminality but
points out that under Citizenship and Immigration Canada’s Internal Processing Document
8 “Spouse or Common-law Partner in Canada Class” (IP8), the administrative
deferral policy set out therein does not apply to someone who received a
negative PRRA before filing the spousal application. That is quite true.
[10]
However,
as I read it, the rationale for the decision was primarily that Mr. Ugochukwu
was inadmissible due to criminality and that there was no evidence that his
spouse had filed an application. The first point was wrong, and the second
point that the documentation had been provided to another officer a week
earlier has not been contradicted.
[11]
Thus
we have to ask ourselves how the officer would have exercised his discretion
had he had his facts right. IP8 provides that there is no administrative
deferral with respect to an application filed after a negative PRRA, but on the
other hand does not purport to fetter the officer’s discretion, such as it may
be under s. 48 of the Act.
[12]
We
know from Cardinal v. Kent Institution, [1985] 2 S.C.R. 643, 24 D.L.R.
(4th) 44 that the right to a fair hearing must be regarded as an
independent, unqualified right, and it is not for the Court to deny that right
on the basis of speculation as to what the result might have been had
discretion not been exercised on wrong principles (Maple Lodge Farms Ltd. v.
Canada, [1982] 2 S.C.R. 2, 137 D.L.R. (3d) 558.). In this vein, the
Minister has now brought forth information with respect to Mr. Ugochukwu’s
sojourn in Italy, which had
not been disclosed to Canadian Immigration officers. That information was not
in the record before the decision maker and so cannot be considered.
[13]
As
noted by the Court of Appeal in North v. West Region Child and Family
Services Inc 2007 FCA 96, 362 N.R. 83 basing itself on R v. Sheppard,
2002 SCC 26, [2002]1 S.C.R. 869, the obligation to give reasons is a
requirement of procedural fairness. In this case the reasons were wrong, and it
is neither for the Minister nor the Court to speculate as to how the officer
would have exercised his discretion had he had his facts right.
[14]
The
public policy with respect to the Spouse or Common-law Partner in Canada class
is a commitment “to preventing the hardship resulting from the separation of
spouses and common-law partners together in Canada where
possible.” Thus it alleviates some of the hardship inherent in a separation. The
fact that Mr. Ugochukwu is caught up in the fine print does not automatically mean
that an officer properly informed as to the facts might not have granted a
deferral.
[15]
Given
the background in this case, the requirement that justice not only be done but must
be seen to be done, as well as the tri-partite test for a stay as set out in
such cases as Toth
v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302, 6 Imm. L.R. (2d)
123 (F.C.A.) a stay is in order. A refusal to defer cannot be based on reasons
which are manifestly and palpably wrong.
“Sean Harrington”
Toronto,
Ontario
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS
OF RECORD
DOCKET: IMM-2161-08
STYLE
OF CAUSE: UGOCHUKWU COLLINS v. THE
MINISTER OF
PUBLIC SAFETY AND EMERGENCY
PREPAREDNESS
PLACE OF HEARING: TORONTO, ONTARIO
DATES OF HEARING: MAY 22-23, 2008
REASONS FOR ORDER: HARRINGTON
J.
DATED: MAY 23, 2008
APPEARANCES:
CHRISTIAN CHIJINDU FOR
THE APPLICANT
TAMRAT GEBEYEHU FOR
THE RESPONDENT
SOLICITORS OF RECORD:
CHRISTIAN
CHIJINDU
BARRISTER & SOLICITOR
TORONTO,
ONTARIO FOR
THE APPLICANT
JOHN H. SIMS, Q.C.
DEPUTY ATTORNEY GENERAL OF CANADA
TORONTO, ONTARIO FOR
THE RESPONDENT
Email this Content