CITIZENSHIP AND IMMIGRATION |
Exclusion and Removal |
Immigration Inquiry Process |
Datta v. Canada (Minister of Citizenship and Immigration)
IMM-476-03
2004 FC 436, Beaudry J.
25/3/04
10 pp.
Judicial review of deportation order--Minister's delegate finding applicant inadmissible pursuant to Immigration and Refugee Protection Act, s. 40(1)(c)--Minister erred in law by notifying Immigration Division of withdrawal of request for admissibility hearing after all of its evidence submitted, but before continuation of hearing instead of submitting written application for withdrawal in conformity with Immigration Division Rules (Rules), r. 5(3)--R. 5(3) providing if substantive evidence accepted in proceedings, Minister must make written application to Division to withdraw request-- Based on combined reading of former Immigration Act, s. 27(1)(e), Immigration and Refugee Protection Regulations (IRPR), ss. 321(1) and (2)(i), Immigration and Refugee Protection Act (IRPA), ss. 40(1)(c), 44(2) and 46(1)(d) and IRPR, s. 228(1)(b), Minister had authority to issue deportation order without going through admissibility hearing before Immigration Division--Minister decided to request admissibility hearing although not required to do so in circumstances, and probably should not have done so--Once decided to go that route, required to comply with procedural rules applying to admissibility hearings--Since uncontested substantial evidence adduced by respondent at admissibility hearing, Minister had obligation to comply with Rules, r. 5(3) and make written application to Division--Specific require-ments as to written applications described in Rules, rr. 37 to 40--Respondent created expectation for applicant in requesting admissibility hearing and in submitting substantial evidence--Unjust not to apply procedural rule applicable in such instances--Therefore, respondent failed to comply with Rules, r. 5(3)--Not allowed to unilaterally withdraw request for admissibility hearing and make deportation order without admissibility hearing rules following their due course-- Application allowed--Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 40(1)(c), 44(2), 46(1)(d)-- Immigration Division Rules, SOR/2002-229, rr. 5(3), 37, 38, 39, 40--Immigration Act, R.S.C., 1985, c. I-2, s. 27(1)(e) (as am. by S.C. 1992, c. 49, s. 16)--Immigration and Refugee Protection Regulations, SOR/2002-227, ss. 228(1)(b), 321.