Series of events did not establish abuse of process

EXCLUSION AND EXPULSION

Series of events did not establish abuse of process

Application for judicial review of deportation order. Applicant was citizen of Australia who arrived as minor in 1969. Applicant married Canadian citizen, who was now deceased, in 1973 and they had child in 1974. Applicant’s family in Canada were all citizens. When applicant arrived, her sister began sponsorship process but applicant married before it was complete and her husband incorrectly informed her she had automatic status because of marriage. Applicant had been convicted of numerous offences, including theft, fraud, impaired driving and failure to comply with court order. In 2011, CBSA took applicant into custody, interviewed her and issued inadmissibility report. Delegate considered amount of time applicant had been in Canada, fact she was receiving widow’s pension and was well-established in community but recommended removal because of criminal convictions and fact applicant did not renew status even when she found it was lacking. Applicant did not attend scheduled meeting with delegate, who had to attend her house and take her into custody for interview. Applicant argued delegate erred in not referring matter to immigration division for hearing, breached procedural fairness, failed to consider humanitarian and compassionate grounds and order was abuse of process because of seven-year delay. Application dismissed. Applicant did not contest criminality findings so, pursuant to s. 228(1)(a) of immigration and refugee protection regulations (Can.), any removal order had to be deportation order. Delegate did not err in failing to refer matter to Immigration Division and, in fact, would have exceeded jurisdiction had she done so. It was well-established that duty of fairness under s. 44 Immigration and Refugee Protection Act (Can.), was relaxed and consisted of right to make submissions and obtain copy of report. Applicant was granted these rights and more. Contrary to applicant’s submissions, H&C factors were not relevant to s. 44 admissibility process. Respondent was not aware of applicant’s lack of status until 2004. Immigration officer then advised applicant to obtain temporary resident permit. Applicant did, but failed to renew it when it expired in 2007. Inadmissibility report was issued in 2011. Series of events did not establish abuse of process and delay did not impair applicant’s ability to respond.

Finta v. Canada (Minister of Public Safety and Emergency Preparedness) (Sep. 25, 2012, F.C., O’Keefe J., File No. IMM-6285-11) 221 A.C.W.S. (3d) 931.