Canada Immigration Case law Canada, Lilla, IMMIGRATION — Selection and admission —Permanent residence applications

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IMMIGRATION — Selection and admission — Permanent residence applications — Authorization to return to Canada — Procedural fairness — Foreign national was citizen of Guyana who submitted Family Class for Spouse or Common-law Partner in Canada class (FC1) in visa office of Port of Spain, Trinidad and Tobago — Application was refused because according to visa office, foreign national had not been declared in her sponsor’s PR application and was therefore excluded pursuant to s. 117(9)(d) of Immigration and Refugee Protection Regulations (Can.) — Decision was appealed to Immigration Appeal Division (IAD) — IAD allowed appeal because at time that sponsor obtained his permanent residence in 2001, former Immigration Act (Can.) still applied through transitional provisions and foreign national did not need to have been declared — Minister acknowledged this error, and consented to file being sent back to Port of Spain visa office for continued processing which included need for ARC to allow foreign national back into Canada, due to enforcement of foreign national’s deportation order and requirement under s. 52(1) of Act to obtain ARC for any future re-entry to Canada — Negative decision was made on application by Port of Spain visa office, as officer refused to issue ARC — Foreign national applied for judicial review — Application granted — Officer’s finding that foreign national misled immigration system when seeking TRV in 2001, and appeared to have conspired with her sponsor to circumvent family class sponsorship rules ran contrary to finding and reasons of IAD, which specifically found that foreign national did not breach family class sponsorship rules in 2001 — Officer owed duty of fairness to foreign national such that she should have been given opportunity to provide her input regarding this concern — Duty of fairness is to be elevated when officer’s decision rests on, and is in contrast to, matters that had been resolved favourably for foreign national upon appeal or judicial review — While officer stated in his GCMS notes that he had considered all of information of this application as whole, respondent conceded, based on absence of IAD decision in Certified Tribunal Record, that it was not placed before officer, and, therefore, that he did not read IAD decision — Officer denied issuance of ARC based on incomplete record and in absence of key piece of evidence — Procedural fairness required that matter be sent back for reconsideration