Sahakyan v. Canada (Minister of Citizenship and Immigration), (2004) 267 F.T.R. 126 (FC)

• Judge: Harrington, J.
• Court: Federal Court (Canada)
• Case Date: October 07, 2004
• Jurisdiction: Canada (Federal)
• Citations: (2004), 267 F.T.R. 126 (FC);2004 FC 1542

Sahakyan v. Can. (M.C.I.) (2004), 267 F.T.R. 126 (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: [2004] F.T.R. TBEd. NO.054

Sergey Sahakyan (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-9934-03; 2004 FC 1542; 2004 CF 1542)

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

Federal Court

Harrington, J.

November 2, 2004.

Summary:

Sahakyan's Convention refugee claim was denied. He did not leave Canada when scheduled. He voluntarily left Canada a few months later, but because of the delay his departure was deemed to be an enforced departure. Sahakyan was selected for permanent residence by Quebec. He was advised that a deported person could only return to Canada with the Minister's authorization (Immigration and Refugee Protection Act, s. 52(1)) and he was asked to explain why it was in Canada's national interest to give that authorization. Sahakyan provided a submission on why he should be authorized to return to Canada. A visa officer decided not to grant the necessary authorization. Sahakyan applied for judicial review.

The Federal Court allowed the application, set aside the visa officer's decision and remitted the matter for redetermination by another officer.

Administrative Law - Topic 2493

Natural justice - Procedure - At hearing - Right to make submissions - [See first Aliens - Topic 1612 ].

Aliens - Topic 1612

Exclusion and expulsion - Immigration - Deportation - Re-entry after deportation - Consent of minister - Sahakyan's Convention refugee claim was denied - He did not leave Canada when scheduled - He voluntarily left Canada a few months later, but because of the delay his departure was deemed to be an enforced departure - Sahakyan was selected for permanent residence by Quebec - He was advised that a deported person could only return to Canada with the Minister's authorization (Immigration and Refugee Protection Act, s. 52(1)) and he was asked to explain why it was in Canada's national interest to give that authorization - Sahakyan provided a submission on why he should be authorized to return to Canada - A visa officer decided not to grant the necessary authorization - Sahakyan applied for judicial review - The Federal Court allowed the application - The visa officer's concerns had to centre on the reasons for Sahakyan's late departure - Sahakyan was denied a fair hearing where he did not know the case he had to meet and he was not given an opportunity to address those concerns - The question "why is it in Canada's national interest to allow you to return" was not an invitation to Sahakyan to address his late departure - See paragraphs 24 to 30.

Aliens - Topic 1612

Exclusion and expulsion - Immigration - Deportation - Re-entry after deportation - Consent of minister - Sahakyan's Convention refugee claim was denied - He did not leave Canada when scheduled - He voluntarily left Canada a few months later, but because of the delay his departure was deemed to be an enforced departure - Sahakyan was selected for permanent residence by Quebec - He was advised that a deported person could only return to Canada with the Minister's authorization (Immigration and Refugee Protection Act, s. 52(1)) - Sahakyan provided a submission on why he should be authorized to return to Canada - A visa officer decided not to grant the necessary authorization - Sahakyan applied for judicial review - The Federal Court allowed the application - The exercise of the visa officer's discretion under s. 52 of the Act was subject to the reasonableness simpliciter standard of review - The officer misinterpreted the law and exercised his discretion unreasonably where he failed to consider a factor of prime importance, i.e., the reason for Sahakyan's late departure - Even on a patent unreasonableness standard, deference was not owed where the officer failed to weigh a patently relevant factor - See paragraphs 3 to 35.

Aliens - Topic 1612

Exclusion and expulsion - Immigration - Deportation - Re-entry after deportation - Consent of minister - Sahakyan's Convention refugee claim was denied - He did not leave Canada when scheduled - He voluntarily left Canada a few months later, but because of the delay his departure was deemed to be an enforced departure - Sahakyan was selected for permanent residence by Quebec - He was advised that a deported person could only return to Canada with the Minister's authorization (Immigration and Refugee Protection Act, s. 52(1)) - Sahakyan provided a submission on why he should be authorized to return to Canada - A visa officer decided not to grant the necessary authorization - Sahakyan applied for judicial review - The Federal Court allowed the application, set aside the officer's decision and remitted the matter for redetermination by another officer - The court rejected the Minister's suggestion that judicial review was pointless as Sahakyan could file a fresh application at any time - The fact that Sahakyan could make a fresh application, did not take the case out of the realm of judicial review - See paragraphs 37 to 41.

Aliens - Topic 4066

Practice - Judicial review and appeals - When available - [See third Aliens - Topic 1612 ].

Cases Noticed:

Glykis v. Hydro-Québec (2004), 325 N.R. 369; 2004 SCC 60, refd to. [para. 16].

Owusu v. Canada (Minister of Citizenship and Immigration), [2004] 2 F.C.R. 635; 318 N.R. 300; 2004 FCA 38, refd to. [para. 24].

Lazarov v. Canada (Secretary of State), [1973] F.C. 927 (F.C.A.), consd. [para. 26].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1, consd. [para. 26].

Mobil Oil Canada Ltd. et al. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202; 163 N.R. 27; 115 Nfld. & P.E.I.R. 334; 360 A.P.R. 334, refd to. [para. 30].

Mount Sinai Hospital Center et al. v. Quebec (Minister of Health and Social Services), [2001] 2 S.C.R. 281; 271 N.R. 104; 2001 SCC 41, refd to. [para. 31].

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. 31].

Cardinal and Oswald v. Kent Institution (Director), [1985] 2 S.C.R. 643; 63 N.R. 353, refd to. [para. 31].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 32].

Roncarelli v. Duplessis, [1959] S.C.R. 121, refd to. [para. 33].

Ha v. Canada (Minister of Citizenship and Immigration), [2004] 3 F.C.R. 195, refd to. [para. 34].

Yaghoubian v. Canada (Minister of Citizenship and Immigration) (2003), 234 F.T.R. 76 (T.D.), refd to. [para. 34].

Wang v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1940, refd to. [para. 34].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 52(1) [para. 8].

Counsel:

Michel Le Brun, for the applicant;

Sébastien De Sylva, for the respondent.

Solicitors of Record:

Michel Le Brun, Montreal, Quebec, for the applicant;

Morris Rosenberg, Deputy Attorney General of Canada, Montreal, Quebec, for the respondent.

This application was heard on October 7, 2004, at Montreal, Quebec, before Harrington, J., of the Federal Court, who delivered the following decision on November 2, 2004.