CITIZENSHIP AND IMMIGRATION |
Immigration Practice |
Sheremetov v. Canada (Minister of Citizenship and Immigration)
IMM-1076-03
2004 FC 569, Harrington J.
15/4/04
7 pp.
Judicial review of decision of Tribunal of Immigration Division of Immigration and Refugee Board (Board) allowing respondent (Minister of Citizenship and Immigration) to withdraw request for admissibility hearing--Applicant, originally from Ukraine, landed immigrant since December 1999--In March, 2002 immigration officer reported to Deputy Minister, pursuant to former immigration legislation, that applicant had committed act in Ukraine constituting criminal offence in Canada--Unfavourable decision in admissibility hearing could ultimately lead to applicant's removal from Canada--Immigration officer's report based on report from procurator's office in Ukraine, that applicant had defrauded joint stock commercial bank "INVESTBANK" by issuing false statements as to company's inventory thus inducing bank to advance funds--Applicant denying validity of Ukrainian criminal charges, particularly denying signing any statements during timeframe in question and calling for production of such documents--When admissibility hearing came up on merits, Minister withdrew request--Applicant's counsel objected--Withdrawal accepted pursuant to Immigration Division Rules, s. 5--Board noted no evidence taken so withdrawal request not abuse of practice--In fact, charges against applicant stayed, not dismissed--Applicant seeks order requiring Board to compel Minister to proceed with admissibility hearing forthwith, or for order quashing request for detention review, and order of prohibition enjoining immigration officer from taking any further action--Minister has right to apply to have request for admissibility hearing reinstated--Correct interpretation of s. 5 question of law-- Board correct in holding two sentences in s. 5(1) must be read together--Board found withdrawal of request not abuse of process because delays not inordinate--However, Board did not take into account that written documents allegedly signed by applicant, which are at heart of criminal charges in Ukraine, have not been produced--Either documents exist or do not--Had Board taken that factor into account, together with fact no limits put on delays for Minister to reach decision to apply to have admissibility hearing request reinstated, Board would have granted postponement of hearing, and heard representations as to rescheduling--In alternative, Board could have accepted withdrawal of request, but given time limit on any application to reinstate it--Application allowed--Immigration Division Rules, SOR/2002-229, s. 5.