AKM Law’s Precedent Setting Case - Evading Removal Does Not Automatically Result In Dismissal of Federal Court Matters

Daisy (Dongni) Sun, associate lawyer at AKM Law, successfully argued against the doctrine of unclean hands in a precedent making decision at the federal court of Canada.

For years, the doctrine of “unclean hands” has been used to dismiss applications without a proper hearing. If the applicant is guilty of some kind of misconduct, such as not showing up for a removal order or meeting with immigration authorities, or lying, the court may choose not to interfere with a decision, despite there being grounds for review. This meant that a decision to remove a person from Canada would be upheld, even if the person might face severe hardship upon their removal, because they had violated immigration laws.

However, in this decision, the federal court clarified that having “unclean hands” will not necessarily prevent an application from being heard. Instead, the court must weigh the seriousness of the misconduct against the strength of the applicant’s case and the potential impact the decision will have on the applicant. The court found that a strong enough case can outweigh even serious misconduct.

Factors that will make a case strong will vary from case to case. In this case, the factors that made applicant’s case strong was that if the decision was allowed to stand, the applicant would have been removed to a country where is fundamental human rights would be at risk.  

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