CITIZENSHIP AND IMMIGRATION |
Exclusion and Removal |
Removal of Refugees |
Canada (Department of Citizenship and Immigration) v. Mwamba
IMM-4190-02
2003 FC 1042, Blais J.
8/9/03
12 pp.
Judicial review of decision by adjudicator of Immigration Division of Immigration and Refugee Board (IRB), ordering release of Junior Mwamba (respondent)--Whether adjudicator committed error justifying Court's intervention when ordered respondent's release--Adjudicator erred in ordering release of respondent because reasons for decision showed that in addition to considering part of factors set out in Immigration and Refugee Protection Regulations, adjudicator took irrelevant factor into account--Fact adjudicator considered removal order as establishing IRB accepted respondent's identity patently unreasonable error (excess of jurisdiction)-- No basis for undue weight accorded to fact removal order presumption that person's identity had been established-- Immigration and Refugee Protection Act, s. 228 allowing removal order to be made once person considered inadmissible: officer has no discretion as such--Removal order issued automatically, even when claimant's identity or credibility not yet finally established--In circumstances, scope given removal order by adjudicator, going so far as to suggest could be presumption identity established, entirely unreasonable--For adjudicator to base decision on criterion other than those set out in Regulations, so as to offset arguments put forward by applicant, and regardless of Act and Regulations, patently unreasonable--Application for judicial review allowed--Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 228--Immigration and Refugee Protection Regulations, SOR/2002-227.