Date: 20011012
Docket: IMM-4434-01
Neutral citation: 2001 FCT 1110
BETWEEN:
WILSON NAUN BAQUEDANO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
[1] This matter for judicial review came before the Court on Thursday, October 4, 2001. On October 1, 2001, the applicant had been granted judicial review of a decision rendered on September 19, 2001, denying an application for exemption from subsection 9(1) of the Immigration Act. The applicant had sought landing from within Canada; he had married a Canadian citizen on April 20, 2001. His wife, on May 21, 2001, filed an inland spousal sponsorship application.
[2] A brief history of the background surrounding this refugee claimant is required in order to properly explain the circumstances surrounding the Court's decision to grant the judicial review and staying an outstanding removal order on October 4, 2001 which was to be executed on October 12, 2001.
[3] The applicant, a citizen of Honduras made a refugee claim on or about July 27, 1999. On May 17, 2000 the CRDD rendered a negative decision. Following the decision through his counsel, the applicant filed an application for consideration under the PDRCC class. His lawyer filed an argument in support of the application by letter dated July 10, 2000.
[4] Following his refugee claim in Canada the applicant had been granted an employment authorization permit from October 1999 to October 2000. In early 2001 he had been working in the Calgary area for a construction company; some time in March or April 2001 the firm that had employed him refused to retain him any longer until he obtained a further employment authorization permit which had expired in October 2000. In April 2001 he came to Vancouver to secure from Immigration Canada a further extension to his work permit. Attending Immigration Canada it was discovered by the authorities that his file indicated that his PDRCC had been denied on August 24, 2000 and an arrest warrant issued on February 17, 2001. He was incarcerated and detained for six days in Vancouver; during this time he contacted his counsel and it was discovered that there had been some error with respect to handling of his file; Immigration Canada had misplaced the submission filed by his counsel in July of 2000, and his evidence to the Post-Claims Determination Officer. Upon hearing submissions by counsel the adjudicator released him from detention.
[5] A new review of his file was then conducted and a decision was rendered on August 21, 2001; Immigration Canada determined that he was not a member of the PDRCC refugee claimant in Canada class. Judicial review for this file, IMM-4257-01, was entertained by the Court on the same day and the judicial review was dismissed.
[6] The Court allowed judicial review of the H & C in which the inland spousal sponsorship application was denied for a number of reasons. It is admitted that the claimant's wife gave birth to their son on April 3, 2001 and that they were not married until April 20, 2001. It is obvious from the questions and answers submitted to both the applicant and his spouse none were directed to the sponsoring wife or to this applicant as to the validity of the marriage or the birth of the child. From the recitals contained in the file one can surmise that the immigration officer conducting the interview was not concerned as I said earlier with the validity of the marriage; the wife brought with her a marriage certificate, birth certificate, pictures of the wedding party, etc. She was not asked to produce any of these documents. The only interest shown in five pages of questions directed to the mother with respect to the Canadian born child were the following:
Q. Does your son have health problems?
A. No.
Q. Is there any other reasons why Wilson can't return home and apply in the normal manner?
A. He has problems in his country.
Q. Any other reasons?
A. Me and his son and daughter need him.
In the five pages of interview notes with respect to the husband, the refugee claimant, the only question put to him with respect to the son was the following:
17. Does your son have any medical problems?
A. No.
It is apparent from the outset from the entries in the humanitarian and compassionate application and notes to file were erroneous entries and must have had some undue influence on the immigration officer. In section 3 entitled "Immigration Information" under "Remark":
Warrant Issued - February 7, 2001
PDCC application not received within 22 days
Departure not confirmed in 37 days; whereabouts unknown
Warrant issued 7 February 2001
It is apparent from what has been recited previously the warrant should not have issued; the PDCC application was filed on time; he never avoided the authorities. These erroneous entries may have resulted in the duty of fairness not being respected and could have had undue influence on the decision-maker.
[7] I am satisfied that the mistaken entries that were before the immigration officer who determined the humanitarian and compassionate application as well as his apparent total disregard for the well-being of this applicant's child as well as the cursory manner in which the entire interview was conducted with both the applicant and his wife sponsor, satisfied me that judicial review should be granted and the removal order stayed. In my Order of October 4, 2001 I directed Immigration Canada to rectify the record of this applicant and I now further order that the H & C application be entertained by another immigration officer.
(Sgd.) "P. Rouleau" Judge
Vancouver, British Columbia
October 12, 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4434-01
STYLE OF CAUSE: Wilson Naun Baquedano v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: October 4, 2001
REASONS FOR ORDER OF THE COURT BY: Rouleau J.
DATED: October 12, 2001
APPEARANCES:
Peter Pl. Dimitrov FOR APPLICANT
Pauline Anthonine FOR RESPONDENT
SOLICITORS OF RECORD:
Peter P. Dimitrov FOR APPLICANT
Vancouver, British Columbia
Deputy Attorney General of Canada FOR RESPONDENT
Vancouver, British Columbia