Digests

Citizenship and Immigration

Immigration Practice

Judicial review of Immigration and Refugee Board Appeal Division decision dismissing appeal from removal order made by Board’s Immigration Division—Applicant, Guyanese, marrying Canadian citizen, sponsored thereby—Applicant later determined inadmissible by member of Immigration Division—Appeal Division concluding member of Immigration Division breaching natural justice, procedural fairness—However, Appeal Division also determining that applicant’s case hopeless regardless of breaches committed—Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 67(1)(b) providing that to allow appeal, Appeal Division must find that principle of natural justice not observed, which was done in present case—If appeal allowed, Appeal Division may then make decision that should have been made or refer matter back for redetermination (Act, s. 67(2))—In present instance, Appeal Division speculating that even if matter referred back, same result would be reached—While Appeal Division’s conclusion possible, by no means certain—Prejudging what decision maker(s) may do not forming sound basis for refusing to return matter—Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202 establishing that where breach of natural justice or procedural fairness found, Federal Court cannot refuse to send matter back on supposition case would be futile—Rare exception applying where remedy sought not relevant in context of matter before Federal Court—Remedy being sought in present case precisely remedy affected by lack of natural justice, procedural fairness—Application allowed.

Persaud v. Canada (Citizenship and Immigration) (IMM-2136-10, 2011 FC 31, Hughes J., judgment dated January 12, 2011, 11 pp.)