CITIZENSHIP AND IMMIGRATION |
Judicial Review |
Canada (Minister of Citizenship and Immigration) v. Lin
IMM-1098-00
2001 FCT 838, Heneghan J.
27/7/01
8 pp.
Application for judicial review of Adjudicator's decision ordering release of respondent from detention of Canada Immigration--Respondent entered Canada in August 1999 as passenger on ship carrying passengers from Fugian region of China--Had no authority to enter Canada, detained by Canada Immigration authorities upon arrival--Exclusion order issued against her--Adjudicator concluding respondent's Charter rights to full, fair hearing compromised as result of inadequate interpretation--Ordered respondent be released from detention upon conditions--Applicant arguing Adjudicator erred in law when purporting to review prior decisions of adjudicators, to use them as basis for finding respondent's Charter rights infringed--Jurisdiction of adjudicator governed by Immigration Act, s. 80.1(1)--Applicant's submission relating to Adjudicator's finding of breach of Charter rights meritorious--Adjudicator finding respondent denied fair hearing--Relied on finding of breach of Charter rights to fair hearing as basis for finding continued detention of respondent unjustified--Adjudicator acting beyond jurisdiction in assuming appellate role--Error not disposing of matter--After reviewing all evidence before him, Adjudicator also finding respondent likely to report for removal if required--Accepted evidence of respondent on face value, as entitled to do--Court may not now substitute own appreciation of evidence--Application dismissed--Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K) [R.S.C., 1985, Appendix II, No. 44]--Immigration Act, R.S.C., 1985, c. I-2, s. 80.1 (as enacted by S.C. 1992, c. 49, s. 70).