Citizenship and Immigration
Exclusion and Removal
Removal of Refugees
Judicial review of immigration officer’s decision refusing application for authorization to return to Canada (ARC) under Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 52(1)—Applicant citizen of Pakistan, permanent resident of United States—Arriving in Canada in 2000, leaving in June 2002 to enter United States—Officer denying authorization to return to Canada on basis applicant failed refugee claimant, had been issued departure order for which departure never confirmed—Applicant not failed refugee claimant as voluntarily withdrew refugee application—Required to apply for ARC because of failure to appear before officer to obtain relevant certificate when left country—Citizenship and Immigration Canada Immigration Manual: Enforcement (ENF), Chapter 11: Verifying Departure, section 13.5 giving directions regarding circumstances in which officers outside Canada should enforce unenforced removal order—Unclear why applicant not receiving benefit of these guidelines as harmless, inadvertent mistake falling within “oversight” provisions thereunder—Difference between decision made on basis of broad discretion and decision made upon basis of mistaken facts, or upon basis of assumptions that cannot be related to, or which fail to take into account, relevant facts—Officer’s decision not defensible—These conclusions factually driven, applying to unique circumstances of application—Application allowed.
Umlani v. Canada (Minister of Citizenship and Immigration) (IMM-2368-08, 2008 FC 1373, Russell J., judgment dated December 15, 2008, 23 pp.)