Digests

Sheremetov v. Canada (Minister of Citizenship and Immigration)

A-287-04

2004 FCA 373, Rothstein J.A.

4/11/04

7 pp.

Appeal from Federal Court decision ((2004), 36 Imm. L.R. (3d) 277) certifying question whether Immigration Division required to consider merits of Minister's case when considering whether to accept withdrawal of request for admissibility hearing where no substantive evidence accepted in proceeding--Respondent landed immigrant--Immigration officer reporting to Deputy Minister of Citizenship and Immigration respondent committed act constituting criminal offence of fraud under criminal code of Ukraine--If committed in Canada, act constituting offence contrary to Criminal Code of Canada, s. 362(1)(c), subjecting respondent to maximum term of imprisonment not exceeding 10 years--Unfavourable decision in admissibility hearing potentially resulting in respondent's deportation--At hearing, Minister withdrawing request for admissibility hearing and Immigration Division accepting withdrawal--Federal Court granting writ of mandamus requiring Immigration Division to proceed with hearing--Immigration Division Rules, s. 5(1) stating withdrawal of request for admissibility hearing not abuse of process if no substantive evidence accepted--Simple notification to Immigration Division and to individual involved required in that case--Otherwise, s. 5(3) providing Minister having to apply to withdraw request--S. 6 requiring Minister to apply to Immigration Division to reinstate request for admissibility hearing--Division must allow application if failure to observe principle of natural justice or if in interests of justice to allow application--Federal Court Judge acknowledging no evidence produced in proceeding (i.e. documents regarding criminal charges in Ukraine), but Minister's failure to seek reinstatement of proceedings after year had passed since withdrawal constituting abuse of process--Under Rules, Minister only required to notify Immigration Division, respondent of withdrawal of request for admissibility hearing--Proceedings ended when Minister serving notice of withdrawal--Federal Court Judge erring by apparently collapsing procedures under ss. 5, 6 into one proceeding--Jurisdiction conferred on Immigration Division to consider application for reinstatement of admissibility hearing request only when Minister applying--Despite use of term "must" under Rules, s, 6(2), Division having discretion in determining whether to allow application in interests of justice--Only when Minister applying for reinstatement that Division may impose schedule if reinstatement allowed--No distinction between respondent's circumstances and any other person Minister considers may be subject to deportation but who has not commenced proceedings before Immigration Division--Appeal allowed--Certified question answered in negative--Immigration Division Rules, SOR/2002-229, ss. 5, 6--Criminal Code, R.S.C., 1985, c. C-46, s. 362(1)(c) (as am. by S.C. 2003, c. 21, s. 5).