Federal Appeal


Immigration and Citizenship

Exclusion and removal
Inadmissible classes

There was no duty to provide inadmissibility report

Applicant was born in India in 1979, became permanent resident of Canada in February 2007 and, as result of conviction for sexual assault committed in 2008, was sentenced to custodial term of two years less day in June 2013. Canada Border Services Agency officer interviewed applicant in prison and provided him with letter informing him that he may be inadmissible to Canada on account of criminality under s. 36(1) of Immigration and Refugee Protection Act. Officer came to conclusion that applicant was inadmissible to Canada for serious criminality and prepared report under s. 44(1) of Act. Minister’s delegate referred applicant’s case to Immigration Division (ID) for admissibility hearing. ID concluded that offence for which applicant was convicted fell under definition of serious criminality outlined in s. 36(1)(a) of Act and issued deportation order. Applicant applied for leave and judicial review of s. 44(1) inadmissibility report and of s. 44(2) referral decisions. Both applications were dismissed. Judge was not convinced that breach of procedural fairness occurred. Judge certified question asking if duty of fairness required that report issued under s. 44(1) be provided to affected person before case was referred to ID under s. 44(2). Applicant appealed on basis of certified question. Appeal dismissed. Duty of fairness did not require transmission of inadmissibility report to affected person before decision was made by Minister or his delegate to refer that report to ID pursuant to s. 44(2), provided that such report was communicated to affected person before hearing of ID. Judge correctly identified applicable standards of review. It was clear that officer’s decision under s. 44(1) and Minister’s decision under s. 44(2) bore none of hallmarks of judicial or quasi-judicial decision. There were limits to discretion afforded to officers and Minister’s delegates despite use of word “may” in wording of ss. 44(1) and (2). Process followed in this case satisfied requirements of procedural fairness. Applicant was afforded kind of participatory rights that decisions of this nature warranted. There was no duty to provide inadmissibility report to person concerned prior to referral decision. Judge correctly concluded that process followed was procedurally fair, that applicant was provided with all participatory rights that his situation entailed, and that respondent was not required to disclose inadmissibility report prior to referral decision. Judge did not commit overriding and palpable error in deciding not to rule definitively on issue in light of fact that decision-makers did in fact consider personal or mitigating factors.

Sharma v. Canada (Minister of Public Safety and Emergency Preparedness) (2016), 2016 CarswellNat 6814, 2016 FCA 319, M. Nadon J.A., Donald J. Rennie J.A., and Yves de Montigny J.A. (F.C.A.); affirmed (2015), 2015 CarswellNat 6864, 2015 CarswellNat 9020, 2015 FC 1315, 2015 CF 1315, R.L. Barnes J. (F.C.).

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