Date: 20020626
Docket: IMM-4222-01
Neutral citation: 2002 FCT 718
Toronto, Ontario, Wednesday, the 26th day of June, 2002
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
CARLOS NAVARRO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of an Immigration Officer's decision, dated, August 23, 2001, wherein the Applicant's humanitarian and compassionate ("H & C") application for permanent residence from within Canada was denied.
[2] The Applicant arrived in Canada as a visitor from Argentina and has remained in Canada for over 12 years. The Applicant's H & C application was primarily based on his establishment in Canada, and with respect to this factor, the Immigration Officer made a critical finding about the Applicant's work history as follows:
Subject states he is very established as he has been employed for the same company for almost 12 years. However, it is to be noted that subject cannot prove he has been employed for 12 years with the same employer as he states that he has been using a name and social insurance number that was obtained for him through improper means. Unfortunately, his employer can only confirm that a Mr. Julio Rocca has been employed at his company for 12 years and not the subject. I note the affidavit provided confirming that Julio Rocca is indeed subject is from a personal friend. With respect to subject's declared income, it is to be noted that all filings have taken place under the name and social insurance number of Julio Rocca, not Carlos Navarro.
(Emphasis added)
[3] The record discloses that the Immigration Officer requested a confirmation from the Applicant's employer respecting his work history, and that the Applicant's counsel responded that to attempt to do so would jeopardize the Applicant's employment since his false identity would be exposed. Instead, the Applicant's counsel supplied the statutory declaration of the co-worker.
[4] There is absolutely no reason to question the veracity of the statements made in the statutory declaration, yet the Immigration Officer did not accept them. I find that the only way that this evidence could not be accepted is on the basis that it is untrue. As there is no reason on the record to reach this conclusion, and as no reasons are given for not accepting the evidence as true, I find the conclusion emphasised in the quotation above is made in reviewable error.
[5] It is also important to note that the Immigration Officer's decision is internally inconsistent on the employment issue. On one hand, the Immigration Officer was not able to find that the Applicant had been employed for 12 years as maintained, but on the other criticized the Applicant for not paying back social assistance money until two months before his H & C application "whereas he has been in fully employed for the past 12 years" (Applicant's Application Record, p. 8). I find that this internal inconsistency also constitutes a reviewable error .
[6] In my opinion, so that the re-hearing of this matter can be made on the exact facts as they exist at the time of the re-determination, it is incumbent upon the Applicant to face the consequences of his past deception. Counsel for the Applicant has agreed to the direction set out below to facilitate this result.
ORDER
1. Accordingly, the Immigration Officer's decision is set aside and the matter is referred back to a different immigration officer for redetermination, on the direction that the onus is on the Applicant on the reconsideration to provide evidence from his employer that he has been employed under an assumed name for at least 12 years.
"Douglas R. Campbell"
J.F.C.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-4222-01
STYLE OF CAUSE: CARLOS NAVARRO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: WEDNESDAY, JUNE 26, 2002
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
DATED: WEDNESDAY, JUNE 26, 2002
APPEARANCES: Mr. Lorne Waldman
For the Applicant
Ms. Mary Matthews
For the Respondent
SOLICITORS OF RECORD: Jackman, Waldman & Associates
Barristers & Solicitors
281 Eglinton Avenue East
Toronto, Ontario.
M4P 1L3
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20020626
Docket:IMM-4222-01
Between:
CARLOS NAVARRO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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