Digests

Citizenship and Immigration

Exclusion and Removal

Removal of Permanent Residents

Judicial review of decision of Immigration Appeal Division (IAD) of Immigration and Refugee Board, pursuant to Immigration and Refugee Protection Act, S.C. 2001, c. 27 denying application for stay of deportation order on humanitarian, compassionate grounds—At hearing, IAD erring in admitting into evidence police reports describing alleged offences for which applicant tried, acquitted; in mischaracterizing criminal offences of which applicant convicted—IAD thereby violating applicant’s right to procedural fairness—Applicant, permanent resident of Canada, criminally charged in Canada, convicted of some offences—IAD failing to find police reports credible or trustworthy before accepting into evidence—Since applicant acquitted on charges relating thereto, reports prima facie neither credible nor trustworthy as setting out factual foundation for charges laid that were subsequently not proven—Police reports should not have been admitted into evidence in these circumstances—Would have been appropriate to submit to IAD, as document relating to charges against applicant, trial judge’s reasons setting out findings of fact, not allegations in police reports proven untrue—To determine why jail term required, IAD should have referred to trial judge’s decision which addressed issue, not police reports which could not help IAD appreciate either factual underpinnings of breach or reasons for sentence imposed—IAD failing to disregard statements in police reports relating to charges on which applicant acquitted—Wording of decision clearly showing IAD considering applicant’s crime to be of sexual nature, not breach of probationary term—IAD at very least conflating two issues—Consensual sexual acts not constituting crime in themselves—Since IAD focussing decision on applicant’s alleged “sexual offence”, applicant failing to receiving fair, impartial hearing—Application allowed.

Fong v. Canada (Public Safety and Emergency Preparedness) (IMM-1430-10, 2010 FC 1134, Zinn J., judgment dated November 12, 2010, 13 pp.)