Image made using deepdreamgenerator.com with the prompt: “Mystical Winter Wonderland in the daylight.”
The Applicant, a citizen of Montenegro, arrived in Canada as a permanent resident in 2005 with his wife and two daughters.
In November 2012, the Applicant was extradited to the United States, where he pled guilty to conspiracy to import eighty pounds of marijuana, conspiracy to launder money, and aiding and abetting the crime of money laundering. He was sentenced to time served and was returned to Canada in September 2013.
When he returned to Canada, he was issued two s. 44(1) reports: one under s. 36(1)(b) of the IRPA (serious criminality) and the other under s. 37(1)(b) of the IRPA (organized criminality).
The Minister’s Delegate referred the Applicant to an admissibility hearing solely on the s. 36(1)(b) report. The admissibility hearing took place in November 2016. The Applicant lost his permanent resident status and a deportation order was issued.
The Applicant applied for a pre-removal risk assessment, which was refused in November 2017. That same month, he applied for permanent residence as the spouse of a Canadian citizen, requesting relief from his inadmissibility under s. 36(1)(b) of the IRPA on humanitarian and compassionate grounds (“H&C”) under s. 25 of the IRPA. He also sought a deferral of removal, which was granted in August 2018.
In July 2020, the Applicant received a procedural fairness letter (“PFL”) advising him that his permanent residence application would not be considered because he was found inadmissible under s. 36(1)(b) and that there was a remedy to overcome his inadmissibility by way of rehabilitation. The letter did not address his potential inadmissibility under s. 37(1)(b).
In May 2023, the Applicant received a second PFL notifying him that his permanent residence application could be refused on the basis of inadmissibility under s. 37(1)(b) of the IRPA.
He responded to the PFL arguing that proceeding with inadmissibility under s. 37(1)(b) would be an abuse of process since the Minister’s Delegate had chosen not to refer him to an admissibility hearing on this basis. He also suggested that the delay in raising s. 37(1)(b) was an abuse of process, citing the three-step test in Blencoe v. British Columbia, 2000 SCC 44 and Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, arguing that the ten-year delay between the start of his inadmissibility proceedings in 2013 and the consideration of s. 37 was inordinate, caused him significant prejudice, and was so manifestly unfair that it brought the administration of justice into disrepute. Specifically, the s. 37(1)(b) allegation precluded him from accessing relief under s. 25.
The Applicant’s permanent residence application was refused on the grounds of inadmissibility under s. 37(1)(b).
Justice Régimbald explains that in administrative proceedings, abuse of process is a question of procedural fairness and that a finding of abuse of process does not, in and of itself, impugn the merits of an inadmissibility finding. The main question is whether the decision maker acted fairly toward the Applicant.
Justice Régimbald then goes on to explain the test for abuse of process and its application to immigration officers. The Court in Naredo v. Canada, 2022 FC 1543 found that notwithstanding the consideration of a potential admissibility hearing at an earlier stage, the later consideration by an Officer of the inadmissibility issue in the context of an H&C application did not constitute an “end-run” around the admissibility hearing provisions, nor an abuse of process.
There is no requirement to send an applicant to the Immigration Division for an admissibility hearing before making a decision on application for permanent residence on H&C grounds. The Officer was therefore entitled to determine that the Applicant was inadmissible, including under s. 37(1)(b).
However, the Officer did not address the question of undue delay, despite the Applicant submitting evidence about the impact of the delay on himself and his family. This omission was crucial and caused the Court to lose confidence in the Officer’s decision.
See: Banovic v. Canada (Citizenship and Immigration), 2024 FC 1990, <https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/527067/index.do>.
If you need legal advice regarding your immigration matter, please contact Heron Law Offices to book a consultation with one of our experienced immigration lawyers.
