Docket: IMM-1886-16
Citation:
2017 FC 33
Ottawa, Ontario, January 11, 2017
PRESENT: The
Honourable Madam Justice Simpson
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BETWEEN:
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SHAVIQUE DILANO
MONTANO
BY HIS
LITIGATION GUARDIAN, SHANTELLE ADAMS
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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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JUDGMENT AND REASONS
[1]
The Applicant has applied for judicial review of
a decision of a Minister’s Delegate [the Officer] to issue an exclusion order
against him dated April 21, 2016 [the Decision]. The Applicant is a minor and
is represented by his mother, Shantelle Adams [the Mother]. She is his
litigation guardian. Both the Applicant and his Mother are citizens of St.
Vincent. This application is brought pursuant to section 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the IRPA].
[2]
The Applicant and his Mother entered Canada as
temporary residents. Six months after their arrivals in 2010 and 2006
respectively, their temporary resident status lapsed, but neither applied for
an extension. On September 10, 2011, the Applicant’s mother married a Canadian
citizen.
[3]
The Canada Border Services Agency [CBSA] became
aware of the mother’s address and issued an inadmissibility report against her
under Section 44(1) of the IRPA. On August 11, 2015, she failed to appear for
her Minister’s Delegate’s Review, and an exclusion order was subsequently made
against her in absentia.
[4]
On August 31, 2015, the Mother’s husband filed a
Spousal Sponsorship application listing the Applicant as a dependent.
[5]
On April 11, 2016, the CBSA contacted the Mother
and she confirmed that she would attend an appointment concerning the
Applicant.
[6]
On April 21, 2016, the Mother met with the
Officer. The Officer conducted a Minister’s Delegate’s Review [the Review] of
the subsection 44(1) inadmissibility report [the Report], which had been issued
against the Applicant.
[7]
The Officer’s affidavit, dated October 21, 2016,
shows that she used a set of standardized questions and recorded the Mother’s
responses on a form called “Minister’s Delegate Review”.
This form will be described as the Notes. The Notes showed that:
- the Mother spoke
English and presented herself without counsel;
- the Mother
advised that the allegations in the Applicant’s Report were accurate; and
- the Mother, when
given an opportunity to make additional comments and communicate whether
she feared a return to St. Vincent, said it was in the Applicant’s best
interests to continue his ongoing medical testing in Canada, but also said
that she recognized that they might have to return to St. Vincent pending
the outcome of the spousal application.
[8]
The Officer deposes that, given the above, she
was satisfied that the Report was well founded and she issued an Exclusion
Order [the Order] against the Applicant. The Officer swears that she explained
the implications of the Order to the Mother, who signed both the Order and a
form advising her of the option to seek judicial review.
[9]
The Mother swore two affidavits, which provide a
different account of the Review. She stated as follows:
I was told by a nice lady that she had to
issue an Order against my son because we overstayed. That was it. I was never
questioned about the stage of my inland spousal sponsorship or whether there
was fear or whether I wish to get Counsel or anything of that sort.
[10]
The Mother swore that, following the Review, she
met with counsel. He showed her a Minister’s Delegate Review form, and asked
her whether she had been taken through the questions on the form with the
Officer noting her responses. She swears that she was not asked those
questions.
I.
The Issues
[11]
There is preliminary issue of procedural
fairness which, in my view, is dispositive.
II.
Discussion
[12]
The Applicant applied for leave and judicial
review on May 6, 2016, and a request was made under Rule 9 of the Federal
Courts Citizenship, Immigration and Refugee Protection Rules [Rule 9
Request] asking CBSA to forward a copy of the Decision and related written
reasons. There is no issue that the Order is the Decision and the Notes are the
reasons.
[13]
In response, on June 9, 2016, the Applicant was
sent the Order, but not the Notes. The Notes and other material were not
produced until October 4, 2016. However, in the meantime, on July 18, 2016, the
Applicant’s counsel filed his Memorandum of Argument [the Memorandum].
[14]
The Respondent has provided no explanation for
CBSA’s failure to produce the Notes in response to the Rule 9 Request.
[15]
Accordingly, the Applicant submits that it is
possible, notwithstanding that they are dated April 21, 2016, that the Notes
were actually written after he filed his Memorandum, and were tailored to
dispel the criticisms of the Review included in his Memorandum. He therefore
submits that to produce the Notes late and without an explanation, raises a
question of procedural fairness.
[16]
The Respondent submits that counsel for the
Applicant was obliged to cross-examine the Officer on the affidavit sworn on
October 21, 2016 before making this submission. However, in my view, there was
no such condition precedent, particularly as the Officer gave no indication in
her affidavit that she had been involved in responding to the Rule 9 Request.
[17]
In my view, there is no reason to believe that
the Notes were fabricated to respond to the Memorandum. Nevertheless, the
absence of any explanation for their late production leaves a submission about
the possibility of wrongdoing open to the Applicant. Accordingly, this
application will be granted.
[18]
No questions were posed for certification for
appeal.
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