Docket: IMM-847-16
Citation:
2016 FC 1069
Toronto, Ontario, September 20, 2016
PRESENT: The
Honourable Mr. Justice Shore
|
BETWEEN:
|
|
JIAM RU YU
|
|
Applicant
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
(Rendered
from the Bench at Toronto, Ontario on September 20, 2016)
I.
Overview
[1]
The Court duly notes that the Applicant was not
represented by counsel and allegedly does not speak English; and, was not asked
as to whether she understood the interpreter. That is ultimately significant.
As lack of clarity rather than contradiction resonates in the transcript.
[2]
Although the right to counsel is not absolute,
the Board did not question the Applicant as to whether she required counsel,
that, also, in light of the fact that she allegedly does not speak English.
______________________________________________________________________________
[3]
This judgment is in response to an application
for judicial review of a decision by the Immigration Appeal Division [IAD],
that determined the Applicant did not meet her residency requirements pursuant
to section 28 of the Immigration and Refugee Protection Act, SC 2001,
c 27 [IRPA].
[4]
The residency requirements as set out in section
28 of the IRPA necessitate, at least, two years of physical presence in Canada
in a five-year period. According to that which was understood, as analyzed, at
the hearing and concluded upon was that the Applicant had spent only 236 days
out of the minimum of 730 days required in Canada.
[5]
The IAD concluded that the Applicant, due to
failure to meet the minimum residence requirements, was denied a travel
document by a Visa Officer in Hong Kong.
[6]
In addition, humanitarian and compassionate
grounds were denied subsequent to consideration of criteria that were considered
inadequate thereon.
[7]
The illness of the Applicant’s mother in China
was considered not to have justified the duration of the Applicant’s absence
from Canadian territory.
[8]
The Board also found that inconsistencies
existed between the Applicant’s background information and her testimony.
[9]
The decision also raised ambiguities and
inconsistencies in respect of the time spent by her three children in Canada.
[10]
The Court duly notes that the Applicant was not
represented by counsel and allegedly does not speak English; and, was not asked
as to whether she understood the interpreter. That is ultimately significant.
As lack of clarity rather than contradiction resonates in the transcript.
[11]
The issue before the Court turns on whether
procedural fairness was breached due to circumstances of the lack of
representation before the Board by the Applicant, all of which must be
considered according to the correctness of the appropriate standard of review
in such a case.
[12]
Although the right to counsel is not absolute,
the Board did not question the Applicant as to whether she required counsel,
that, also, in light of the fact that she allegedly does not speak English.
[13]
The Court considers that the Board may have very
well reached the proper determination based on its analysis, composed of
testimony and evidence as considered; however, as per arguments of the
Respondent’s counsel, the lack of minimum query as to counsel is a significant
lacuna in the file, thus, noticed by its absence in the transcript.
[14]
It is by this absence, that the Court concludes
that an opportunity in respect of such query was, and is, necessary, under the
circumstances due, especially to the alleged lack of English language ability
by the Applicant.
[15]
Although the decision may continue to be as
rendered in the case before the Court; however, it is readily conceivable that
the Applicant may have had certain explanations or evidence to submit had an
opportunity for counsel been considered thereon.
[16]
Therefore, the application for judicial review
is granted; and the Court concludes that the matter is returned to a
differently constituted panel to analyze the matter anew.
Email this Content