Federal Court


Immigration

JUDICIAL REVIEW
Applicant entitled to know what indictable offence was being cited against him

Applicant was citizen of Canada and Brazil. Wife was citizen of Brazil and claimed New Zealand citizenship. Wife paid paralegal to obtain her New Zealand citizenship and passport. Applicant and wife travelled and wife was denied boarding because New Zealand passport was found to be counterfeit. Applicant’s passport was seized on return to Canada. Applicant denied he knew wife’s passport was counterfeit. Applicant was denied passport services for five years. Director found applicant was involved in misuse of his passport by attempting to assist improperly documented person to travel. There was no evidence applicant was charged or convicted of committing indictable offence in Canada or any offence in foreign country. Applicant sought judicial review. Application granted. There was no finding of indictable offence. Director had no jurisdiction to make such finding because it was matter of criminal law to be determined by judge not government official. Director did not identify provisions of Immigration and Refugee Protection Act (Can.), that was to form basis of indictable offence. Applicant was entitled to know what indictable offence was being cited against him and failure to do so was breach of natural justice and procedural fairness. In interpreting s. 10(2)(b) of Canadian Passport Order, power to revoke was dependent on commission of indictable offence in Canada or offence of similar type in another country. Words “in committing an indictable offence” meant that pre-condition to revocation or service denial was commission of indictable offence by subject person. Without identifying which offence was claimed to be in issue, it was not possible for director to show reasons to be reasonable.

Dias v. Canada (Attorney General) (Jan. 21, 2014, F.C., Michael L. Phelan J., File No. T-1344-12) 236 A.C.W.S. (3d) 989.

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