Amevenu v. Canada ( Solicitor General )
IMM-6324-93
Cullen J.
6/12/94
7 pp.
Judicial review of decision insufficient humanitarian, compassionate grounds to allow applicant to apply for landed immigrant status from within Canada because marriage not bona fide-Applicant entering Canada in November 1992 on stolen passport-Released on cash, performance bonds-Marrying Canadian citizen in May 1993-In June applying to immigrate to Canada under sponsorship of husband-In August 1993 undergoing inquiry into bona fides of marriage-Application rejected October 19, 1993-On October 22 Minister notified Convention refugee claim withdrawn by notice filed October 5-Respondent submitting (1) applicant failed to perfect application for leave by serving, filing record within 30 days after filing application as required by Federal Court Immigration Rules, 1993, R. 10(1); (2) immigration officer making erroneous finding of fact in that (i) relied on notes by examining officer, (ii) failed to consider withdrawal of refugee claim consistent with bona fide marriage, (iii) noted applicant married while case in enforcement, but first notice to appear for immigration inquiry received month after married-Application dismissed-(1) Mistaken assumption time limit for filing commenced on date of receipt of immigration officer's notes, recommendations since informed by earlier letter reasons not issued-Federal Court Registry lacking authority to authorize extension of time without Court order-Teitelbaum J. granting leave on September 13, 1994 despite fact application record filed out of time-Respondent, at time leave application pending, not raising argument record filed outside time limit-Although Teitelbaum J. not granting extension of time (presumably because issue never raised), extension effectively granted in conjunction with leave-Raising issue of time limit over two months after leave granted and only week before matter set to be heard prejudicial, unfair to applicant-Respondent's arguments on this ground not considered-(2) Conditions precedent to justify judicial interference for erroneous finding of fact: (i) finding must be truly erroneous; (ii) finding must be made capriciously or without regard to evidence; (iii) decision must be based on erroneous finding-Even if convinced decision based on erroneous finding of fact, Court cannot intervene unless also of view tribunal, in making its finding acted in perverse and capricious manner or without regard to evidence before it-No egregious error-Immigration officer not exercising discretion in bad faith or on grounds unrelated to purposes for which discretion granted-Federal Court Immigration Rules, 1993, SOR/93-22, R. 10(1)-Immigration Act, R.S.C., 1985, c. I-2, ss. 9(1), 114(2)-Immigration Regulations, 1978, SOR/78-172, ss. 4(1)(a (as am. by SOR/84-140, s. 1), (3) (as am. idem).