Date: 20000608
Docket: IMM-2267-99
BETWEEN:
CONCEPCION AQUINO CARPIO
PABLO GALDAMEZ
Applicants
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROULEAU, J.
[1] This is an application pursuant to subsection 82.1(1) of the Immigration Act, R.S.C. 1985, c. I-2, for judicial review of the decision of Immigration Officer L.M. Nunez dated April 14, 1999 wherein it was determined that there were insufficient humanitarian and compassionate considerations under subsection 114(2) of the Act to warrant an exemption from subsection 9(1) of the Act.
[2] The applicants are citizens of El Salvador. Concepcion Aquino left El Salvador in January, 1993, and, after living in the United States for a period of almost two years, came to Canada on October 7, 1994. Her husband, Pablo Galdamez, joined her in Canada on June 8, 1995.
[3] Their Refugee claims were heard jointly and the Convention Refugee Determination Division of the Immigration and Refugee Board rejected their claims on May 5, 1997.
[4] An application for leave and for judicial review of that negative decision was denied by this Court on August 27, 1997.
[5] The applicants prepared an Application for Landing from within Canada under humanitarian and compassionate grounds. On February 25, 1998, the applicants were interviewed by Immigration Officer Stock. On April 14, 1999, the applicants" application was denied on the grounds that there were insufficient humanitarian and compassionate considerations pursuant to subsection 114(2) of the Act to warrant an exemption from subsection 9(1) of theAct.
[6] The applicants submit that the Immigration Officer who rendered the decision did not properly follow the guidelines which she is bound to consider when rendering a decision. More importantly, the applicants submit that Immigration Officer Nunez, who rendered the decision, had not personally conducted the inquiry; that the decision was rendered in a hurried fashion some 14 months after the original application had been dealt with by another Immigration Officer and, as a result the second officer had breached the duty of fairness.
[7] The respondent, on the other hand, argues that the Immigration Officer committed no reviewable error.
[8] The initial interview was conducted in February of 1998 by Immigration Officer Stock. In her notes, she outlined that the female applicant had 25 relatives in Canada including three brothers and sisters as well as her father. The couple has one child born in Canada in late 1994.
[9] Under section 4 of the interview notes, entitled Humanitarian and Compassionate Considerations, the officer pointed out that the wife has all of her relatives in Canada and that her husband had no one to return to in El Salvador. She further pointed out that if the male applicant were to be deported, he would be faced with leaving his wife and child in Canada. In her notes, the officer indicated that the applicants" life appears to be well settled in this country; that even the great-grandmother resides in Canada and that they are a very attached and integrated family. The officer further pointed out that the male applicant has a good employment record; that he has no roots in El Salvador and that though he failed to report for removal, they have always resided at the same address and have no criminal record.
[10] Immigration Officer Stock"s notes do not in any way provide any expression of opinion with respect to this application.
[11] The officer who rendered the decision some 14 months later suggests that she made a thorough review of the file and the interview notes which had been written by Immigration Officer Stock; all was done over the telephone. She suggested that the applicants" integration into the community is limited; she stated "everything that I should know has been presented to me" during the course of the telephone conversation and, as a result of speaking with the applicants, she concluded that nothing had been changed since February 1998.
[12] No doubt we are dealing with applicants who have a stable history of employment, who appear integrated into the community and who have extended family in this country. It is evident that to render a humanitarian and compassionate decision, an immigration officer who takes over a file some 14 months after the initial interview and verifies its contents simply by telephone appears to lack a genuine attempt to adhere to the guidelines provided by the Minister. The seriousness of this decision and the lack of weight the Immigration Officer may have given to the evidence, particularly with respect to the close family ties in Canada; the fact that there is a child born in this country who is surrounded by relatives, even the great-grandmother, do not appear in the notes of the officer who rendered the decision and do not appear to have been thoroughly canvassed.
[13] In light of the fact that the interviewing officer did not make the final decision and the considerations for humanitarian and compassionate grounds were looked into some 14 months later by another officer who conducted her investigation over the telephone with people who obviously had some difficulty with the language, this situation offends my sense of fairness.
[14] I am satisfied that this application for judicial review should be allowed and that these applicants should be entitled to file a further application pursuant to subsection 114(2) of the Act.
JUDGE
OTTAWA, Ontario
June 8, 2000
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