Docket: IMM-2357-13
Citation:
2014 FC 872
Ottawa, Ontario, September 15, 2014
PRESENT: The Honourable Mr. Justice Roy
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BETWEEN:
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ANTON VULEVIC
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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ORDER AND REASONS
[1]
UPON an
application for judicial review of a decision of an Immigration Officer denying
the application for an exemption on humanitarian and compassionate grounds for
the requirement to apply for permanent residence from outside Canada [H&C
decision];
[2]
AND UPON
reviewing the record and receiving the representations of counsel;
[3]
For the reasons that follow, the application for
judicial review is granted.
[4]
The applicant alleges that the record on which
the H&C decision was made was incomplete. The Certified Tribunal Record
[CTR] produced in this case has barely 50 pages. The applicant alleges that the
Application Record was much more extensive than the CTR. Indeed, counsel for
the respondent did not dispute before this Court that such was the case.
[5]
It will suffice, for the purpose of this
application, to reckon that an incomplete file ended up before the Respondent
in the face of an absence of explanation for the incomplete record. In the best
tradition of the bar, counsel for the respondent chose to avoid arguing that
which should not be argued without a strong evidentiary basis. There was no
attempt, and appropriately so, to show that the more than 100 pages missing
from the CTR carried little weight. In the circumstances of this case, the
Court can only come to the conclusion that a significantly incomplete record
was presented to the decision-maker.
[6]
As a result, the application for judicial
review, made pursuant to section 72 of the Immigration and Refugee
Protection Act, SC 2001, c 27, is granted. At its most basic,
procedural fairness requires that an applicant be heard (audi alteram partem). When the complete
application is not before the decision-maker, it can hardly be argued that the
party has been heard (Nicholson v Haldimand-Norfolk Regional Police
Commissioners, [1979] 1 S.C.R. 311). The five factors of Baker v Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 which are used
to determine the content of the duty of fairness leave the Court closer to the
judicial end of the spectrum than the political or legislative end. The
standard of review on procedural fairness in most cases is correctness (see
generally Brown and Evans, in Judicial Review of Administrative Action in
Canada (Toronto, On: Carswell, 2013) at 7:1620) and, in this case, the
process of adjudication followed was deficient in that the applicant was not
heard if the full application was not before the decision-maker. Those who
decide must hear. As a result, the matter is sent back to a different officer
who will conduct a complete redetermination.
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