Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2006 FCA 14 (CanLII),
http://canlii.ca/t/1mcd7
Thanabalasingham was a refugee from Sri Lanka who was involved in a criminal gang and had a conspiracy to commit assault conviction on his record.
He engaged in a lot of litigation in the Federal Court system
Deportation order issued against him in 2002
Minister realized that even if Thanabalasingham’s IAD appeal was unsuccessful, Canada wouldn’t be able to deport him because of non-refoulement provisions in IRPA (115(1)), unless danger opinion issued.
Minister issued danger opinion, and the FC set it aside, noting that Minister failed to adequately consider his personal circumstances
Minister appealed, saying Thanabalasingham did not have clean hands – had misrepresented himself in multiple proceedings before detention review board, understating his role in the gang, etc.
Minister’s argument was that the JR application should have been dismissed on the clean hands doctrine; namely, it should have been dismissed without consideration on its merits due to the previous misrepresentation
FC certified the following question:
When an applicant comes to the Court without clean hands on an application for judicial review, should the Court in determining whether to consider the merits of the application, consider the consequences that might befall the applicant if the application is not considered on its merits?
The FCA disagreed with the conception of the clean hands doctrine put forth by the Minister:
[9] In my view, the jurisprudence cited by the Minister does not support the proposition advanced in paragraph 23 of counsel’s memorandum of fact and law that, “where it appears that an applicant has not come to the Court with clean hands, the Court must initially determine whether in fact the party has unclean hands, and if that is proven, the Court must refuse to hear or grant the application on its merits.” Rather, the case law suggests that, if satisfied that an applicant has lied, or is otherwise guilty of misconduct, a reviewing court may dismiss the application without proceeding to determine the merits or, even though having found reviewable error, decline to grant relief.
[10] In exercising its discretion, the Court should attempt to strike a balance between, on the one hand, maintaining the integrity of and preventing the abuse of judicial and administrative processes, and, on the other, the public interest in ensuring the lawful conduct of government and the protection of fundamental human rights. The factors to be taken into account in this exercise include: the seriousness of the applicant’s misconduct and the extent to which it undermines the proceeding in question, the need to deter others from similar conduct, the nature of the alleged administrative unlawfulness and the apparent strength of the case, the importance of the individual rights affected and the likely impact upon the applicant if the administrative action impugned is allowed to stand.
[11] These factors are not intended to be exhaustive, nor are all necessarily relevant in every case. While this discretion must be exercised on a judicial basis, an appellate court should not lightly interfere with a judge’s exercise of the broad discretion afforded by public law proceedings and remedies. Nonetheless, I have concluded in this case that the Judge erred in the exercise of his discretion by failing to take account of the remedy provided to Mr Thanabalasingham by his right to appeal to the IAD against his removal and the relevance of that appeal to an assessment of the consequences if the Minister’s opinion stands.
The FCA answered the certified question as follows:
[17] A consideration of the consequences of not determining the merits of an application for judicial review is within the Judge’s overall discretion with respect to the hearing of the application and the grant of relief.
Thanabalasingham cited in other case-law:
In Ray v. Canada (Minister of Citizenship and Immigration)http://canlii.ca/t/1nlcl>:
Court recites paragraphs 10-11 from Thanabalasingham on the “clean hands doctrine”
[27] In this case, the Applicant lived illegally in the United States during a sixteen month period, and failed to report to Canadian authorities during that time. The Applicant was also found guilty of five offences for possession of false documents. But these misconducts do not impact the impugned PRRA decision. Unlike Jaouadi, above, and other cases where an applicant has lied to the Tribunal, and then seeks to use the Court as a shield from the Tribunal’s adverse findings, in the present case the Applicant’s misconducts had no impact on the PRRA decision, and do not undermine the present application for judicial review. The Applicant’s sentencing for the offences for possession of false documents serves to deter others from possessing false documents, and in this case should not also be used as the only means to preclude the Applicant from exercising his right to seek judicial review of his PRRA Decision. The Court sees no reason to refrain from examining the merits of the Applicant’s claim.
See Raslan v. Canada (Citizenship and Immigration), 2010 FC 189 (CanLII), <http://canlii.ca/t/286nt>
[14] The law is clear that the grant of judicial review is a discretionary remedy which may be refused on grounds of equity – the lack of clean hands.