Date: 19990217
Docket: IMM-1694-98
BETWEEN:
ZABEEDA RAMPERSAUD and ANIL RAMPERSAUD
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
McGILLIS J.
INTRODUCTION
[1] The applicants have challenged by way of judicial review the decision of an immigration officer in which she refused to grant their application for landing from within Canada for humanitarian and compassionate reasons under subsection 114(2) of the Immigration Act, R.S.C. 1985, c. I-2, as amended ("Act").
FACTS
[2] In February 1996, the applicants applied for permission to process their application for landing from within Canada on humanitarian and compassionate grounds based on the allegation by the female applicant that her husband in Guyana had severely abused her and her son, the male applicant, for many years. The application for humanitarian and compassionate relief was refused. In July 1997, the Court allowed an application for judicial review of that decision, and ordered the application to be reconsidered by a different immigration officer.
[3] On November 21, 1997, the applicants' counsel forwarded supplementary written submissions to be considered on the redetermination of the application. In those submissions, counsel for the applicants noted, among other things, that the applicants' allegations of abuse had never been challenged in cross-examination or doubted in any manner. She also noted that it was difficult to corroborate spousal and child abuse.
[4] On November 25, 1997, the applicants and their counsel attended an interview with the immigration officer.
[5] On December 3, 1997, the immigration officer prepared a document entitled "Request for Consideration under 114(2)". In the section "Officers Recommendations / Decision and Rationale", she concluded that there were insufficient humanitarian and compassionate reasons to warrant granting consideration under subsection 114(2) of the Act. On the last page of that document, underneath her signature, the immigration officer made the following handwritten notes:
| 03/12/97 |
| - Decision made on 114(2) |
| - File given to Gord Eckertt, A/Mgr for concurrence given complexity of case. |
| - Prior to concurring with my decision, he requested that I send an e-mail to [visa office] to determine if any of her statements could be verified, given that we only had her oral testimony, yet the abuse, according to subject, had been ongoing for years. |
| - E-mail sent to [visa office] |
| - Await their reply |
[6] Given her manager's request that she attempt to obtain information confirming the alleged abuse, the immigration officer sent an e-mail to the visa office in Guyana on December 9, 1997 asking for assistance. No reply was received. On March 12, 1998, the immigration officer sent a second e-mail to the visa office and asked that interviews be conducted with residents in the area in order to determine whether the husband had abused his family for years, as alleged by the applicants.
[7] By letter dated February 9, 1998, counsel for the applicants requested the immigration officer to make a decision on the application for humanitarian and compassionate relief.
[8] On February 12, 1998, following counsel's request that a decision be made on the application, a program specialist at the Canada Immigration Centre examined the file and determined that there was a negative decision on the file, but noted that no refusal letter had been sent to the applicants. She wrote a note to the immigration officer. In response, the immigration officer confirmed in writing to the program specialist that, although she had made a decision on the file, a refusal letter had not been sent. She further wrote that the manager wanted to have the benefit of "any information or help" from the visa office before the "final decision" was given to the applicants. Finally, she requested the program specialist to advise counsel that the decision was "pending".
[9] On February 17, 1998, the program specialist sent a facsimile to the applicants' counsel in which she stated that "[t]he application is still under review. We will advise you of the case disposition in due course."
[10] On March 20, 1998, an official in the visa office in Guyana responded to the immigration officer by e-mail and provided some "background information" on the husband, who had an application for a Canadian visitor's visa pending in that office. The official indicated, on the basis of the information in their files, that the female applicant's husband, who was a well-known businessman, was "reasonable and honest" in his dealings with that office. However, he made the following negative comments concerning the applicants:
| Rampersaud has been reasonable and honest. |
| This office can not say the same for Zabeeda Rampersaud or her son, Anil. According to a letter we have from Banks DIH Ltd. Zabeeda abandoned her job without notice. When she had not reported for 6 days after her scheduled return on 22Nov94 Banks DIH wrote her on 28Nov94 terminating her employment. |
| On 18Nov94 Anil wrote to the University of Guyana requesting a leave of absence for the academic year 1994/1995 claiming that "This request is being made because I have to undergo medical treatment overseas." To our knowledge this was patently untrue. |
[11] On March 24, 1998, the manager reviewed the e-mail from the visa officer, following which he wrote a note on the immigration officer's document prepared on December 3, 1997, concurring with her decision. In particular, he stated that "along with information from the visa office dated 12 [sic] March 1998, I agree."
[12] By letter dated March 25, 1998, the area manager of the Canada Immigration Centre informed the applicants that their application for humanitarian and compassionate relief under subsection 114(2) of the Act was refused. The immigration officer signed the letter on behalf of the area manager.
[13] The applicants were never informed of the e-mail sent from the visa office, and had no opportunity to respond to the information contained in that document.
[14] In her affidavit filed in these proceedings, the immigration officer stated that she made her decision on December 3, 1997, and that she "...did not take into consideration the e-mail..." sent to her by the visa office.
ISSUE
[15] The principal question to be determined is whether the immigration officer breached the duty of fairness by failing to provide the applicants with an opportunity to respond to extrinsic evidence.
ANALYSIS
[16] Counsel for the applicants submitted, among other things, that the immigration officer breached the duty of fairness by considering the extrinsic evidence forwarded by the visa office without providing the applicants with an opportunity to respond to that evidence. In response, counsel for the respondent submitted, among other things, that the final decision was made on December 3, 1997, and that the immigration officer did not consider the extrinsic evidence in making her decision.
[17] A review of the evidence in the record indicates that the immigration officer made a decision to refuse the application on December 3, 1997. However, prior to releasing her decision, she discussed it with the acting manager who instructed her to ask the visa office to determine whether the applicants' allegations of abuse could be "verified". Following those instructions from her supervisor, she sent two e-mails to the visa office requesting that interviews be conducted with people in the area to determine whether the allegations of abuse could be verified. She also advised a colleague in writing that the acting manager wanted the benefit of "any information or help" from the visa office prior to sending a "final decision" to the applicants. Furthermore, she asked the program specialist to advise counsel that the decision was "pending". Finally, applicants' counsel was advised in writing that the application was still "under review".
[18] I have no hesitation in concluding, on the basis of the unequivocal and overwhelming evidence in the record, that the immigration officer's decision, which she prepared on December 3, 1997, did not become final until her acting manager reviewed the information from the visa office and concurred in her decision. Indeed, the final decision was not sent to the applicants until five days after the information from the visa office was sent to the immigration officer, and only after the acting manager wrote that he had reviewed the information from the visa office and that he "agreed" with the immigration officer's decision.
[19] I also have no hesitation in concluding that the immigration officer and her acting manager blatantly breached the minimal duty of fairness owed to the applicants by considering the information from the visa office that appeared to be very damaging to the credibility of the applicants without providing them with an opportunity to make submissions in response concerning the reliability and relevance of that information. [See Shah v. Minister of Employment and Immigration (1994), 170 N.R. 238, 239 (F.C.A.)].
DECISION
[20] The application for judicial review is allowed. The decision of the immigration officer dated March 25, 1998 is quashed and the matter is remitted to a different immigration officer for redetermination. The case raises no serious question of general importance.
"D. McGillis"
Judge
Toronto, Ontario
February 17, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-1694-98
| STYLE OF CAUSE: ZABEEDA RAMPERSAUD and |
| ANIL RAMPERSAUD |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: TUESDAY, FEBRUARY 16, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT BY: McGILLIS J.
DATED: WEDNESDAY, FEBRUARY 17, 1999
APPEARANCES: Ms. Arlene Tinkler
For the Applicants
Ms. Sudabeh Mashkuri
For the Respondent
SOLICITORS OF RECORD: Arlene Tinkler
| Barrister & Solicitor |
| 393 University Avenue |
| Suite 2000 |
| Toronto, Ontario |
| M5G 1E6 |
| For the Applicants |
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990217
Docket: IMM-1694-98
Between:
| ZABEEDA RAMPERSAUD and |
| ANIL RAMPERSAUD |
Applicants
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR JUDGMENT