Canada ( Minister of Employment and Immigration ) v. Jawhari
T-1477-92 / T-1478-92
Denault J.
16/12/92
10 pp.
Application to set aside three decisions by adjudicator at inquiry held to determine whether respondents and parents covered by allegations of report made under Immigration Act, s. 27(2), and whether should be allowed to remain in Canada -- Applicant first challenged adjudicator's decision to grant adjournment, stating he failed to make conditional removal order against respondents, thereby refusing to exercise jurisdiction -- Act, ss. 46.02(2), 32.1(4) allow adjudicator no latitude -- Act compels him to make conditional deportation order not effective until one of conditions in s. 32.1(6) occurs -- Adjudicator erred by failing to make conditional removal order, thereby refusing to carry out duty resting on him -- Second, applicant challenged decision of adjudicator and member of Refugee Division finding respondent's claims to refugee status had credible basis -- Adjudicator considered children based claim on parents' -- Function of adjudicator and member of Refugee Division clearly defined by Act, s. 46.01(6) -- Must ensure evidence concerning each element of definition of Convention refugee in Act, s. 2 -- By wrongly believing bound by decision of another access tribunal, adjudicator and member of Refugee Division erred in law by applying wrong test for determining whether respondents' refugee claims had credible basis -- Should at least have recognized parents' refugee claims had been rejected by Refugee Division and applied decision to children in absence of any other evidence -- Decision set aside -- Immigration Act, R.S.C., 1985, c. I-2, ss. 32.1(4) (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 12), 46.01(6) (as enacted idem, s. 14), 46.02(1) (as enacted idem).