Monday, July 26, 2010

Hinzman -- FCA Decision on H&C for war resisters

CanLII - 2010 FCA 177 (CanLII):

Key Quotation:
[39] My conclusion should not be seen as altering the discretion of
officers making decisions on section 25 applications, nor as giving the
appellants a “right to a particular outcome or to the application of a
particular legal test” (Suresh v. Canada (Minister of Citizenship and
Immigration), 2002 SCC 1 (CanLII), 2002 SCC 1; [2002] 1 S.C.R. 3).

[40] However, the H&C Officer had the duty to look at all of the
appellants’ personal circumstances, including Mr. Hinzman’s beliefs and
motivations, before determining if there were sufficient reasons to make a
positive H&C decision (ibidem, Chapter 5, section 11.3). She did not. Had
the Applications Judge addressed the appellants’ ground of complaint, as stated
at paragraph 57 of his Reasons, I am convinced that he would have concluded as I
do and found that the H&C decision was significantly flawed and therefore
unreasonable.

[41] Consequently, I propose to allow the appeal and,
rendering the judgment that the Federal Court ought to have rendered, I would
set aside the decision of the Officer denying the appellants’ H&C
application and I would refer the application back for redetermination by a
different officer in accordance with these reasons.

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