Punia v. Canada (Minister of Citizenship and Immigration), (2013) 441 F.T.R. 194 (FC)

• Judge: Russell, J.
• Court: Federal Court (Canada)
• Case Date: July 17, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2013), 441 F.T.R. 194 (FC);2013 FC 1078

Punia v. Can. (M.C.I.) (2013), 441 F.T.R. 194 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2013] F.T.R. TBEd. OC.041

Karamjeet Kaur Punia (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-12630-12; 2013 FC 1078; 2013 CF 1078)

Indexed As: Punia v. Canada (Minister of Citizenship and Immigration)

Federal Court

Russell, J.

October 24, 2013.

Summary:

Punia applied for judicial review of a decision of the Immigration Appeal Division (IAD) of the Immigration and Refugee Board, in which the IAD declared Punia's appeal from the decision of a visa officer res judicata and declined to hear it.

The Federal Court allowed the application and remitted the matter to a different member of the IAD for reconsideration.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - In 2008, Punia sponsored her husband to come to Canada - A visa officer determined that the marriage was not genuine and had been entered into primarily for the purpose of the husband acquiring a status or privilege under the Immigration and Refugee Protection Act - The Immigration Appeal Division (IAD) of the Immigration and Refugee Board affirmed the decision - Punia again sponsored her husband's Canadian permanent resident application in 2011 - A visa officer again concluded that the marriage was not genuine and had been entered into primarily for the purpose of the husband acquiring a status or privilege under the Act - Punia appealed the 2011 refusal to the IAD - The appeal was heard by the same IAD member who dismissed the first IAD appeal - The IAD dismissed the second appeal by application of the doctrine of res judicata - Punia applied for judicial review, asserting a breach of procedural fairness - The IAD member had raised the issue of reasonable apprehension of bias (in light of the same IAD member's involvement in both refusal appeals) at the hearing but did not invite submissions on the issue before concluding that bias was not at issue - The Federal Court allowed the application and remitted the matter to a different member of the IAD for reconsideration - Punia was deprived of the opportunity to present evidence and argument indicating a predisposition by the IAD member to decide the second hearing against her - This was a breach of procedural fairness that required the matter to go back for reconsideration.

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - [See Administrative Law - Topic 2088 ].

Administrative Law - Topic 2493

Natural justice - Procedure - At hearing - Right to make submissions - [See Administrative Law - Topic 2088 ].

Aliens - Topic 1287

Admission - Immigrants - Sponsorship - Members of the family class - [See Administrative Law - Topic 2088 ].

Cases Noticed:

Rodriguez v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. A07; 2005 FC 629, refd to. [para. 6].

Danyluk v. Ainsworth Technologies Inc. et al., [2001] 2 S.C.R. 460; 272 N.R. 1; 149 O.A.C. 1; 2001 SCC 44, refd to. [para. 15].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 18].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 19].

Canadian Union of Public Employees et al. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539; 304 N.R. 76; 173 O.A.C. 38; 2003 SCC 29, refd to. [para. 19].

Sketchley v. Canada (Attorney General) (2005), 344 N.R. 257; 2005 FCA 404, refd to. [para. 19].

Sami v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 244; 2012 FC 539, refd to. [para. 20].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 21].

Fogel v. Minister of Manpower and Immigration, [1975] F.C. 121; 7 N.R. 172 (F.C.A.), refd to. [para. 29].

Khalife v. Canada (Minister of Citizenship and Immigration) (2002), 225 F.T.R. 200; 2002 FCT 1145, refd to. [para. 29].

Charkaoui, Re (2004), 255 F.T.R. 199; 2004 FC 624, refd to. [para. 29].

Jaballah, Re (2006), 278 F.T.R. 110; 2006 FC 180, refd to. [para. 29].

Committee for Justice and Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 38].

Jerome v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 871; 2011 FC 1419, refd to. [para. 39].

Toora v. Canada (Minister of Citizenship and Immigration (2006), 300 F.T.R. 7; 2006 FC 828, refd to. [para. 39].

Chamo v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 732; 2005 FC 1219, refd to. [para. 39].

Taylor and Western Guard Party v. Canadian Human Rights Commission, [1990] 3 S.C.R. 892; 117 N.R. 191, refd to. [para. 39].

Energy and Chemical Workers' Union and Atomic Energy of Canada Ltd., Re, [1986] 1 F.C. 103; 64 N.R. 126 (F.C.A.), refd to. [para. 39].

Arthur v. Minister of Employment and Immigration, [1993] 1 F.C. 94; 147 N.R. 288 (F.C.A.), refd to. [para. 48].

Counsel:

Narindar S. Kang and Jasdeep S. Mattoo, for the applicant;

Jennifer Dagsvik, for the respondent.

Solicitors of Record:

Kang & Company, Surrey, British Columbia, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Vancouver, British Columbia, for the respondent.

This application was heard at Vancouver, British Columbia, on July 17, 2013, by Russell, J., of the Federal Court, who delivered the following judgment at Ottawa, Ontario, on October 24, 2013.