Date: 19981008
Docket: IMM-164-98
BETWEEN:
FINBAR KEVIN CHARLES
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
(Delivered from the Bench at
Winnipeg, Manitoba on October 7, 1998)
HUGESSEN J.
[1] This is an application for judicial review of the decision of an immigration officer refusing to recommend that the Minister exercise the power granted by section 114(2) of the Immigration Act to grant humanitarian or compassionate relief to the applicant.
[2] Interviews conducted for the purposes of determining whether to recommend the grant of humanitarian and compassionate relief are subject to minimal requirements of procedural fairness since the applicant has no entitlement to any particular form of relief and is, indeed, seeking an exception from the application of the law which is otherwise applicable to all persons.
[3] The principal question before the officer at the interview was whether or not the applicant's marriage to Carol Desjarlais was a genuine marriage or whether it was a marriage of convenience. Both the applicant and Ms. Desjarlais were present at the interview and they were interviewed separately. The officer also had before her a written statement from a Ms. Christine Fontaine who indicated in her written statement that the applicant had also proposed marriage to her and that she had indeed borne his child. The officer concluded on a balance of probabilities that the marriage was a marriage of convenience and she therefore refused to recommend humanitarian and compassionate relief to the applicant. That is unquestionably a finding that was open to her on the materials before her.
[4] The only question that has given me pause in this application for judicial review arises from the following paragraph of the officer's affidavit:
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The applicant and Ms. Desjarlais were accompanied by David Davis ("Mr. Davis"), the applicant's counsel. I advised the applicant Ms. Desjarlais and Mr. Davis that CIC policy is to allow counsel to sit in during the interviews as a courtesy, but that he could not assist the applicant or Ms. Desjarlais with their responses. I always conducted my interviews in this way. The reason for it is simply so I can hear the applicant's story and version of events not his or her counsel's version. |
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[5] The applicant submits that he was denied the right to counsel and quotes in support of that submission the decision of this Court in the case of Qi, (1995), 32 Imm.L.R., (2nd), page 57, where Reed J. found that the denial of the right to counsel during an adjudicator's hearing on a section 27 report was a breach of the principles of natural justice. She based herself in part upon the fact that in that case the persons concerned had received a letter in which they were told that they had the right to bring counsel, she felt that once they had been invited to bring counsel, counsel must be allowed to participate in the interview and that the failure to do so was to deny a reasonable expectation which had been created by the department's own letter to them.
[6] In my view the Qi case is of little help to us here. It is I think a clearly distinguishable situation: there is no evidence here of a letter being sent to the applicants inviting them to bring counsel. More importantly still, the nature of the hearing in the Qi case was one where I think we would all agree that counsel have a right to be present, whereas the nature of the hearing here is one where, as I have already said, there are minimal requirements of fairness and the applicants have no rights to any particular outcome.
[7] That being said, however, I think it is important to emphasize that the only evidence that I have before me about the denial of the right to counsel is that contained in the affidavit of the immigration officer in the paragraph which I have just read. I note what that paragraph does not say that counsel were denied the right to make representations either orally or in writing with regard to the client's case. I think I might take a different view of the matter if that had happened. What the immigration officer says, and what I have to assume happened, was that counsel were told that they could not interfere or assist the client with their responses to the questions. That is a perfectly legitimate restriction on counsel and in those circumstances I am not prepared to hold that there has been any denial of natural justice.
,8" I leave open the question as to what would happen if counsel were denied the right to make representations. In this case in particular it was suggested that representations might have been made with respect to the weight to be given to the written statement from Ms. Fontaine. There is no indication that that could not be done or that that right was denied and accordingly I am going to dismiss the application for judicial review. Before signing the order, I invite counsel to make submissions if they have any with respect to the certification of a question.
,9" ,Later" After hearing counsel, I have agreed to certify the following question:
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On an application for humanitarian and compassionate relief, is it a denial of the duty of fairness for the officer to deny counsel the right to assist the applicant with his or her responses? |
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"James K. Hugessen"
Judge
WINNIPEG, MANITOBA
October 8, 1998
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-164-98
STYLE OF CAUSE: Finbar Kevin Charles v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: October 7, 1998
REASONS FOR ORDER
OF THE COURT: THE HONOURABLE MR. JUSTICE HUGESSEN
DATED: October 8, 1998
APPEARANCES:
Mr. David Davis for the Applicant
Ms. Cynthia Myslicki for the Respondent
Department of Justice
310 - 301 Broadway
Winnipeg, Manitoba
R3C 0S6
SOLICITORS OF RECORD:
David H. Davis Law Office
800 - 31 Broadway
Winnipeg, Manitoba
R3C 0S6
for the Applicant
Morris Rosenberg
Deputy Attorney General of Canada for the Respondent
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 19981008
Docket: IMM-164-98
BETWEEN:
FINBAR KEVIN CHARLES
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
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