Digests

Correia v. Canada (Minister of Citizenship and Immigration)

IMM-3955-03

2004 FC 782, Phelan J.

31/5/04

11 pp.

Judicial review of Immigration Division's decision to deport on ground inadmissible by reason of serious criminality-- Applicant 56-year-old citizen of Guyana who has been permanent resident of Canada since 1968--History of criminal activity including eight criminal convictions--Last conviction for importation of cocaine led to removal from Canada-- Rights of applicant at each of three stages of removal process depending on nature of inquiry or issues to be addressed-- Removals due to inadmissibility governed by Immigration and Refugee Protection Act, ss. 44, 45--S. 44(1) involving two different acts by immigration officer: (1) formation of opinion as to admissibility, and (2) decision to make report--Decision to make report considered against backdrop of this Division of Act which has as its purpose removal of certain persons from Canada--Discretion not to report extremely limited and rare as otherwise would give to officials level of discretion not even enjoyed by responsible Minister--S. 44(1) report restricted to relevant facts--Since inadmissibility for serious criminality under s. 44(1) based on conviction and sentence itself, officer's opinion limited to securing knowledge that conviction and sentence rendered--Relevant facts for purposes of report to Minister or delegate fact of conviction and length of sentence--Therefore, officer had no jurisdiction to consider humanitarian and compassionate issues in issuing report--Similarly delegate, in determining whether report well-founded restricted to considering relevant facts of conviction and of sentence--Having regard to limited nature of inquiry, reasons given more than adequate for applicant to know basis for decision--Lastly, if interview to be held and if there is right to such interview, it should be held after report transmitted to Minister but before decision to refer made-- This case one of rare cases where breach of procedural fairness because interview held after report referred to Immigration Division for admissibility hearing, but where remedy should not be quashing of decision--Applicant unable to suggest what relevant facts could have been put to delegate which could have in any way altered decision to refer-- Application dismissed--Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 44(1).