Dasent v. Canada ( Minister of Citizenship and Immigration )
A-18-95
Strayer J.A.
18/1/96
4 pp.
Appeal from Trial Division decision ([1995] 1 F.C. 720) certifying two questions: (1) in judicial review of humanitarian and compassionate (H & C) decision based in part on earlier H & C decision from which judicial review not sought and from which time to do so has expired, may procedural errors in earlier process be subject of judicial review of later decision?; (2) is information in case file not obtained from applicant or information obtained from spouse in separate spousal interview at which applicant not present, extrinsic evidence not brought forward by applicant to which applicant must be afforded opportunity of response in H & C process under Immigration Act, s. 114(2)-Appeal allowed, both questions should be answered in negative-(1) Procedural errors alleged to have been committed in making particular recommendation must be challenged on judicial review of recommendation within prescribed time-Once time elapsed, immigration officer considering new H & C application by same applicant entitled to take note of evidence, conclusions and recommendations in first application, but cannot be bound by same decision-New application requiring new decision by immigration officer, having regard to any events since first recommendation-On judicial review of later decision not open to applicant to challenge validity or procedures of decision on first application-Trial Judge therefore erred in considering fairness of first recommendation-(2) Statements by spouse not extrinsic evidence-While requirement of fairness in H & C application process, content thereof minimal having regard to discretionary nature of decision under Act, s. 114(2)- Officer obliged to inform applicant neither of officer's tentative conclusions nor of apparent contradictions: Shah v. Minister of Employment and Immigration (1994), 170 N.R. 238 (F.C.A.)-Question as to whether information in case file not obtained from applicant can be used by Immigration Officer too general to answer and in any event unnecessary to do so-Information in question all pre-dated first recommendation and use of it by first immigration officer never challenged-On second application, immigration officer entitled to take note of first immigration officer's conclusion as to credibility of applicant and spouse and to be influenced by it as proceeding not judicial or quasijudicial-Immigration Act, R.S.C., 1985, c. I-2, s. 114(2) (as am. by S.C. 1992, c. 49, s. 102).