Date: 20110503
Docket: IMM-6946-10
Citation: 2011 FC 514
Toronto, Ontario, May 3, 2011
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Applicant
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and
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MING YOU CHEN
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
Respondent, Mr. Ming You Chen, wishes to sponsor his wife, Ms. Mei Ling Lin, to
come to Canada. In a decision dated February
23, 2009, his wife’s application for permanent residence as a member of the
family class was refused by a visa officer (the Officer), principally on the
basis that neither she nor the Respondent had the financial means to support
the Respondent’s wife in Canada. The Respondent appealed this
decision to the Immigration
Appeal Division of the Immigration and Refugee Board (the IAD). In a decision
dated November 16, 2010, a panel of the IAD allowed the appeal. The Minister of
Citizenship and Immigration seeks to overturn the IAD’s decision.
[2]
The Respondent has advised
the Court that “he is no longer interested in being part of these Federal Court
proceedings” and that he should be considered to be a “non-opposing
Respondent”. The Respondent did not appear at the hearing of this judicial
review.
[3]
I am satisfied this
application should be allowed on the basis that there was a serious breach of
the rules of procedural fairness.
[4]
On March
20, 2009, the Respondent filed a Notice of Appeal with the IAD. Nothing
occurred with this appeal until July 29, 2010, when the IAD sent the Respondent
a letter requesting:
... written submissions and any documents
which may assist in settling the appeal without having an oral hearing, and
determining whether it may be resolved more quickly in an oral hearing or if
it’s more suitable to evaluate the evidence “in Chambers”.
[5]
In a response dated
August 30, 2010, the Respondent’s counsel provided written submissions to the
IAD, addressing the merits of the appeal. The Minister did not make any
submissions.
[6]
On November 4, 2010,
the IAD, in chambers and apparently based on the written submissions of the
Respondent, allowed the appeal. The reasons of the IAD are short:
The appeal is allowed. The file is to be
sent back to the visa post to determine if the documents now received satisfy
their concern regarding s.39 and for any further processing necessary.
[7]
The Minister was
aware that an appeal had been commenced. It appears that the Minister was given
notice of the existence of an appeal, as the letter sent to the Respondent
requesting his submissions was also copied to the Minister’s counsel, and
Respondent’s counsel also provided the Minister’s counsel with their
submissions.
[8]
However, the Minister
was never provided with notice that the IAD would be making its decision on the
basis of the responses to the July 29, 2010 letter, without an opportunity for
further submissions or arguments. The IAD only asked for written submissions specifically from
the Respondent for the purpose of determining whether it was necessary to
proceed with an oral hearing or whether it was possible to dispose of the
appeal through written submissions. The only date in the letter referred to the
date by which the Respondent’s submissions were to be made, and made no mention
of any date by which the Minister was required to make submissions. By proceeding as it did, the IAD denied
the Minister its right to be heard, thereby breaching one of the most
fundamental rights of a party to a proceeding.
[9]
On these
facts, it was manifestly unfair for the IAD to render a decision without
providing the parties with notice that it was prepared to render a decision and
without providing one of the parties with any opportunity to participate. The
Applicant was denied the opportunity to participate in the appeal in a
meaningful way and was denied the opportunity to be heard. As a result, the IAD
breached the rules of natural justice, thereby violating one of the fundamental
rules of the adversarial process (Globe and Mail v Canada (Attorney General), 2010 SCC 41 at para. 74).
Such a violation amounts to an error in law and a breach of natural justice (Goyal
v Canada (Minister of Employment and Immigration) (1992), 142 NR 176 (FCA);
Ke v Canada (Minister of Citizenship and Immigration) (1995), 31 Imm LR
(2d) 309 at para. 16 (FCTD); Oriji v Canada (Attorney General) (2002),
228 FTR 73 at para. 16).
[10]
The
application will be allowed. There is no question of general importance for
certification.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
1.
The application for
judicial review is allowed and the matter referred back to the Board for
reconsideration by a different panel of the IAD; and
2.
No question of
general importance is certified.
“Judith A. Snider”
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