Digests

McLaren v. Canada (Minister of Citizenship and Immigration)

IMM-1241-00

2001 FCT 373, Simpson J.

23/4/01

9 pp.

Judicial review of Minister's delegate's refusal to reconsider (second decision) earlier decision (first decision) applicant danger to public--First decision subject of unsuccessful judicial review application--Request for reconsideration of first decision based on "new" evidence including psychologist's report, common-law relationship, employment, reconciliation with father--Second decision one-page letter refusing request on ground insufficient grounds to justify reopening first decision--No statutory provision for reconsideration of danger opinion--But respondent deciding to review requests for reconsideration of danger opinions--Nouranidoust v. Canada (Minister of Citizenship and Immigration), [2000] 1 F.C. 123 (T.D.) holding although Act silent as to reconsideration, visa officer not functus officio, had jurisdiction to reconsider, particularly if new information--Reasoning applies to Minister's delegate--Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 outlining non-exhaustive list of factors relevant to determination of contents of duty of fairness--Assessment of those factors leading to conclusion duty of fairness herein minimal--High standard of fairness applied to first decision--Application for judicial review heard, denied--No statute now applies--No basis for legitimate expectation any particular procedures will be followed--Importance of decision only factor in favour of existence of any duty--Second decision very important to applicant in that positive decision would allow him to avoid deportation--Content of duty depending on extent to which request for reconsideration containing new facts--At time of second decision new facts so new, should have been obvious why second decision made--However because of importance of matter to applicant, minimal duty of fairness required minimal explanation for second decision--Duty would have been met had Minister's delegate included sentence explaining evidence presented too fresh to form reliable basis for reconsideration--If second decision based on fact applicant's request for reconsideration premature, decision reasonable--Minimal duty of fairness not extending to disclosure of interdepartmental correspondence relevant to request for reconsideration--Second decision set aside, applicant granted opportunity to submit fresh request for reconsideration of first decision.