Digests

Citizenship and Immigration

Exclusion and Removal

Removal of Visitors

Judicial review of decision by Minister’s delegate to issue removal order pursuant to Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 44—Applicants, U.S. citizens, sponsored by daughter to immigrate to Canada as members of family class—Before obtaining decision, applicants entering Canada without proper authorization—Later applying for visitor status extension—Also submitting application for permanent residence on humanitarian, compassionate (H&C) grounds—Immigration officer subsequently denying extension, directing applicants to leave Canada—During admissibility hearing with Minister’s delegate, applicants requesting adjournment until H&C application processed—Minister’s delegate denying request, issuing removal orders—Issues: (1) whether procedure laid out in Act, s. 44 violating constitutional principle of separation of powers; (2) whether Minister’s delegate breaching duty of fairness by not granting adjournment—Applicants contending Minister’s delegate cannot review report prepared by officer from same department to adjudicate removal—Same department acting in both executive, judicial capacity, thus violating separation of powers—Regulatory administrative agencies authorized to combine investigative, enforcement, adjudicative functions without being unlawfully biased—Such latitude often required to fulfill roles—Working in same department not considered reason to find lack of independence, especially in context of decision in which neither officers involved, nor institution having any substantial interest—With regard to adjournment, administrative agencies masters of own, power to adjourn generally discretionary—Waiting until H&C application processed not having any effect on applicant’s current inadmissibility—Under Act, s. 44, immigration officials under obligation to act on facts indicating inadmissibility—Considering H&C factors not their function—While Minister’s delegate swiftly dealing with adjournment request, no indication she prevented applicants from making important submissions—Application dismissed.

Rosenberry v. Canada (Citizenship and Immigration) (IMM-4042-09, 2010 FC 882, O’Keefe J., judgment dated September 8, 2010, 19 pp.)