Thursday, May 19, 2011

Persaud–wrong application of Mobil Oil

Persaud v. Canada (Citizenship and Immigration), 2011 FC 31 (CanLII)

Judge: Justice Hughes

Date heard: January 11, 2011

Date decided: January 12, 2011

Counsel for Persaud: Robert Blanshay

Counsel for Minister: Brad Gotkin

Place of Hearing: Toronto, Ontario

The Applicant was a citizen of Guyana who had married a Canadian citizen and been sponsored and came to Canada as a permanent resident in October 2003 (para. 2). In September 2006, the Applicant was interviewed by a Minister’s Delegate (MD); she was not advised of the purpose of the interview, did not have counsel and was not advised that she could have counsel (para. 3). From that interview the MD produced a “Narrative Memoranda” which referred to the interview and a statutory declaration from the husband which was said to be, but was not, attached (para. 3). The MD recommended deportation.

Before the Immigration Division, the Applicant’s counsel argued that the interview was improper and that the absence of the husband’s statutory declaration was another error (para. 4).

The ID gave a written decision in June 2008 that the Applicant was inadmissible as her marriage was not genuine, or in the alternative if it had been entered into in good faith the Applicant had later failed to disclose its breakdown. The ID recognized that the interview had been conducted in breach of procedural fairness and therefore gave no weight to alleged contradictions between the evidence given at the interview and elsewhere (para. 5). Nevertheless, the ID found that either the marriage was entered into for immigration purposes, or if it had been genuine at the beginning the Applicant had failed to disclose its subsequent breakdown (para. 5).

On March 29, 2010, the IAD heard the Applicant’s appeal and decided that since the ID found the interview tainted, it ought to have sent the matter back to be re-determined (para. 6). This was especially true since, despite stating later that it was not taking contradictions from the interview into account, the ID decision explicitly referred to one such contradiction. It was this decision of the IAD, which despite its conclusion that the ID had erred dismissed the appeal, which Justice Hughes overturned.

Before rendering a decision the IAD asked for submissions on the Mobil Oil case (para. 8). The IAD held that Mobile Oil was authority for the proposition that “a breach of procedural fairness does not require a new hearing in “special circumstances” where the claim in question is otherwise “hopeless” or the outcome reached was “inevitable”” (para. 17). On that basis, the IAD found that had the ID heard the evidence properly, it still could not have done other than to dismiss the case (para. 10).

However, at the Federal Court both parties agreed that this summary was not correct:

Mobil Oil dealt with a unique set of circumstances where there was a finding of breach of procedural fairness which the Supreme Court found would have required the matter to be sent back for redetermination. However, since the matter that would have been the subject of redetermination was not the subject of the remedies sought, it was determined to be impractical to send it back. (para. 18)

Given that the dismissal was based on a fundamental misunderstanding of the law, Justice Hughes granted the judicial review and sent the matter back to be re-determined by the IAD, with a further non-binding recommendation that the IAD refer it back to the ID (para. 21).


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