Date: 20000505
Docket: IMM-1447-00
BETWEEN:
JANOS GUNTHER, JANOSNE GUNTHER
ROBERT GUNTHER, MARIA GUNTHER
FERENC GUNTHER, ANITA GUNTHER
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.:
[1] These reasons for order apply in this file and in court file IMM-1448-00 as the circumstances there are similar to the ones here. They explain why I granted on March 23, 2000, under section 18.2 of the Federal Court Act, an interim stay of the execution of a conditional departure order dated February 23, 1998, which became effective when the applicants' refugee claim was dismissed by the Refugee Division and could be carried out when the applicants' leave for judicial review from that decision was dismissed.
[2] This application for a stay was heard at the same time as the application made by Timea Csonka, IMM-1448-00. Timea Csonka is married to the applicant Robert Gunther. The scheduled departure date from Canada to Hungary of the Gunther family was later than that indicated to Timea Csonka.
[3] The basis for the stay application arose out of a negative PDRCC decision received by the applicants on February 23, 2000, or later, but without any reasons.
[4] The respondent opposed the stay application and in the material it filed on March 23, 2000, was the affidavit of Jennifer Lucchetta which contained the reasons underlying the negative PDRCC decision. In other words, the applicants received the basis for the negative PDRCC decision the day the stay application was to be heard before me. It is to be noted the date showed on the analysis signed by J. Graham, Post Claim Determination Officer, is February 22, 2000.
[5] The applicants filed, on March 21, 2000, I believe, a leave application to this Court from the negative PDRCC decision.
[6] The recent decision of the Supreme Court of Canada in Baker v. M.C.I., (1999), 174 D.L.R. (4th) 193, tells us reasons for decision are a vital element of procedural fairness which, in some circumstances, may lead to a breach (in that case, the Immigration Officer's notes were considered to be reasons for decision).
[7] In my view, receiving on the day of the stay application, the reasons for decision behind the respondent's negative PDRCC decision which is at the heart of the stay application and the leave application prejudiced the applicants in realistically putting forward their case that a serious issue justified the granting of the stay application. Moreover, there is no excuse for the respondent not handing the applicants the reasons for decision (the PDRCC officer's notes) on February 23, 2000.
[8] As a result, I set down hearing of the stay application on April 12, 2000, directed the parties to file fresh affidavits and memoranda and ordered the interim stay until then.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
MAY 5, 2000