Digests

Sahakyan v. Canada (Minister of Citizenship and Immigration)

IMM-9934-03

2004 FC 1542, Harrington J.

2/11/04

15 pp.

Judicial review of visa officer's refusal to allow applicant to re-enter Canada--Applicant, Armenian, entering country with visitors visa; subsequently claiming refugee status--Refugee claim denied by Immigration and Refugee Board-- Application for leave, judicial review of IRB's decision also denied--Removal order issued against applicant becoming executory--Applicant's failure to leave on time turning departure order into deportation order under Immigration and Refugee Protection Act, s. 52(1)--Applicant since selected for permanent residence by Quebec under Federal-Provincial agreement after applying from Mexico City--Applicant receiving form letter from Canadian Embassy stating deported person only able to return to Canada with Minister's authorization, as prescribed under Immigration and Refugee Protection Regulations, s. 226--Applicant applying for authorization and Minister's officer responding by questioning applicant's motives during stay in Canada, accusing applicant of not paying for departure plane ticket--Fairness of hearing at issue since no dialogue between Minister's officer and applicant regarding applicant's suspicious entry into country and late departure--Minister's decision to grant authorization discretionary--Regulations establishing unsuccessful refugee claim not affecting applicant's right to apply for permanent resident status--Officer misconstruing Act by focussing on irrelevant factor in decision (i.e. applicant's history in Canada) instead of reasons for applicant's tardy departure from Canada--Applicant not given fair hearing; should have been given opportunity to address officer's concerns, disprove officer's claims applicant's departure at government's expense--Audi alteram partem meaning applicant having right to be heard, to know case to be met, opportunity to respond to case--Review standard of correctness applicable to officer's interpretation of Act-- Review standard of reasonableness simpliciter applicable to officer's exercise of discretion-- Officer exercising discretion unreasonably, failing to weigh patently relevant factor (reason for applicant's late departure), failing to consider limitations, details of applicant's sojourn in Canada--While in Canada, applicant taking French classes, never trying to deny true identity, never going into hiding--Despite concerns about applicant's motives in leaving late, officer would have been powerless to prevent applicant from returning had applicant left country on time--Permanent residence carrying right to leave Canada with knowledge entitled to return--Fact applicant can make fresh application for re-entry not precluding judicial review remedy-- Application allowed-- Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 52(1)--Immigration and Refugee Protection Regulations, SOR/2002-227, s. 226.