Date: 20011129
Docket: IMM-767-00
Neutral Citation: 2001 FCT 1295
Between:
FATIMA HAMAMA BELHARKAT
AMINE HAMAMA
FAISAL HAMAMA
FATINE HAMAMA
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
[1] The applicants seek judicial review of the January 26, 2000 decision of Immigration Officer Alain Tassé, determining that there were insufficient humanitarian and compassionate grounds to exempt the applicants from the requirements of subsection 9(1) of the Immigration Act, R.S.C. 1985, c. I-2 (the Act).
[2] The principal applicant, Fatima Hamama Belharkat, is a citizen of Morocco. She submitted an application for herself and her two youngest children plus another for her oldest son, who was over 20 years old at the time. The husband of the applicant is assumed to be living abroad, however his address is unknown. The applicant's mother, father, six brothers and two sisters are well established in Canada, some since 1972.
[3] The applicant arrived in Canada on August 9, 1996 and filed a refugee claim against her country of origin on December 12, 1996. The applicant's claim was rejected and leave for judicial review of this decision was dismissed on March 26, 1998.
[4] The applicant's removal order became effective on May 2, 1998. However, on several occasions this was postponed due to the alleged fact that the daughter was unfit to travel due to illness.
[5] Subsequently, the applicant made an application for landing in Canada on humanitarian and compassionate grounds, pursuant to subsection 114(2) of the Act and section 2.1 of the Immigration Regulations, 1978, SOR/78-172 (the Regulations) based on the allegation that the applicant and her husband are separated and that she fears to return to Morocco which is "male-dominated".
[6] The officer's reasons for denying the applicant's application are found in his notes and read in part as follows:
- I have weighed subject's allegations of being separated from husband, having absolutely no relatives or family left in Morocco as well as her fears of returning to Morocco for her safety and her children's. However, just as the C.R.D.D. found her declarations and statements to be lacking in credibility, I have to come to the same conclusions especially when noting the repeated attempts from subject and her "Canadian" family to postpone indefinitely her leaving Canada and going to the extent of purposely misleading their family doctor to write erroneous statements concerning her daughter's ability to travel.
[7] In Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817, L'Heureux-Dubé J. determined at pages 857 to 858 that the appropriate standard of review for decisions made under subsection 114(2) of the Act and section 2.1 of the Regulations is reasonableness simpliciter:
. . . I conclude that considerable deference should be accorded to immigration officers exercising the powers conferred by the legislation, given the fact-specific nature of the inquiry, its role within the statutory scheme as an exception, the fact that the decision-maker is the Minister, and the considerable discretion evidenced by the statutory language. Yet the absence of a privative clause, the explicit contemplation of judicial review by the Federal Court - Trial Division and the Federal Court of Appeal in certain circumstances, and the individual rather than polycentric nature of the decision, also suggest that the standard should not be as deferential as "patent unreasonableness". I conclude, weighing all these factors, that the appropriate standard of review is reasonableness simpliciter.
[8] In the case at bar, the applicant made an important submission that the officer made credibility assessments based on extrinsic evidence without offering the applicant an opportunity to respond. In Dasent v. Canada (M.C.I.), [1995] 1 F.C. 720 at 730-731, Justice Rothstein defined the term extrinsic evidence as "evidence of which the applicant has no knowledge and on which the immigration officer intends to rely in making a decision affecting the applicant".
[9] Moreover, in Malkine v. Canada (M.C.I.), [1999] F.C.J. No. 1604 (T.D.) (QL), Justice MacKay followed Amoateng v. Canada (M.C.I.), [1994] F.C.J. No. 2000 (T.D.) (QL), and Shah v. Canada (M.E.I.) (1994), 170 N.R. 238 at 239 (F.C.A.), and held that reliance upon extrinsic evidence, without advising the applicant and without permitting comment on it, violated the duty of fairness.
[10] Like Amoateng, supra, the officer in this case made a decision based on evidence obtained by an unknown person, has relied on evidence which does not appear in the file, and also has not given the applicant a chance to confront the extrinsic evidence. In his notes, the officer makes reference to the fact that "an immigration officer spoke to Dr. Alsaffar on daughter's illness and condition to travel". There is no reference in the decision as to who exactly had this conversation with the physician. Moreover, there does not exist an affidavit from Dr. Alsaffar or the immigration officer in question supporting this affirmation. I am therefore of the view that this constitutes a breach of fairness as the applicant did not have at any time an opportunity to review or respond to the evidence that the physician had been mislead, which was clearly relied upon in the decision.
[11] Such a breach of procedural fairness is sufficient to warrant the intervention of this Court.
[12] Consequently, the application for judicial review is allowed, the decision of the immigration officer quashed and the matter remitted for reconsideration by another immigration officer.
JUDGE
OTTAWA, ONTARIO
November 29, 2001
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