Federal Court Decisions

     IMM-4780-96

Between:

     HARRY L. LADIO,

     Applicant,

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

     Respondent.

     REASONS FOR ORDER

Muldoon, J.

     The respondent, unusually, moves to allow the application for judicial review of a decision of the Appeal Division of the IRB, dated December 3, (not December 6^th) 1996. The grounds are stated simply to be "the consent of the parties."

     Those are deficient grounds, far from good enough in a matter of public law, as this is. The parties have mistakenly treated it as if it were private law. They have set the Court to doing the respondent's (qua applicant's) work for it. The ground is so deficient for a Minister of the Crown, in a matter of public law, that the Court was first minded to dismiss the respondent's motion for lack of grounds. Perhaps the Court has, in past, been a trifle coy, in saying why the government must articulate some cogent grounds for consenting to the would-be immigrant's application for judicial review. There is some jurisprudence: Antan Jebanayagam v. Sol. Gen. Can. [1994] 3 F.C. D-24 / F-31, (1994) 85 F.T.R. 277; reconsidered sub. nom Jebanayagam v. M.C.I. (1995) 91 F.T.R. 193, 30 Imm.L.R. (2d) 194.

     Bluntly speaking since it is the Minister's role, and the Attorney General's role, to uphold and enforce the public law, the Court, and by extension the public, need to know, and to fix the Minister publicly with, cogent reasons for "throwing in the towel". The Court and the public need to be assured that it is not a case of favouritism, or that the would-be immigrant or refugee is not a genocidal monster or other sort of criminal, and therefore that the Court has not gone along with the Minister's consent "no questions asked". This Court asks questions, and will not subscribe to the risk of being, by silence in public law, complicit in an unlawful or remotely possibly corrupt deal. No one can assert that it cannot happen here.

     So, would it kill the Minister and Crown counsel to give a cogent reason for consent, assuming that consent is accorded for a good, lawful, cogent reason? Then the Minister and the government would be publicly fixed with it, as is proper in public law for the upholder and enforcer of the public law; and the Court would not have to ask many or any questions, and certainly not have spur the Minister to fulfil his or her public office.

     That is why the Court will not accept a dry, taciturn and groundless consent to the government's apparent lying down on its job. Justice must not only be done, but must be manifestly seen to be done.

     Here, doing the Crown's job for it, the Court has gone through the tribunal's record. In its impugned decision the Appeal Division's reasons state: "None of his [the applicant's] family members, however, came to testify on his behalf, ..." p. 009. The transcript of the hearing, however, indicates that such witnesses did indeed testify at pp. 028, 038, 046 and 065. The tribunal's having forgotten that, or having somehow otherwise overlooked it, is a sufficient ground for quashing the decision. Why could not the Minister's counsel simply have stated as much in the Minister's notice of motion filed June 24, 1997. Why was the Minister or counsel so coy about expressing the reason?

     If costs could be appropriately awarded against the Minister the Court would so award in this case. However, no thanks to the Minister's counsel's efforts, the motion will be allowed and the Immigration Appeal Division's signed December 3, 1996 in case No. V95-02348 will be quashed and the applicant's appeal will be referred back to a differently constituted panel for rehearing and reconsideration according to law.

     F.C. Muldoon

Judge

Ottawa, Ontario

July 11, 1997