Date: 19990217
Docket: IMM-1116-98
BETWEEN:
BHAJAN SINGH GILL
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
[Delivered from the Bench at Toronto,
Ontario on February 17, 1999]
McGILLIS J.
[1] The applicant has challenged by way of judicial review the decision of an immigration officer, pursuant to subsection 114(2) of the Immigration Act, R.S.C., 1985, c. I-2, refusing to grant him permission to apply for landing from within Canada on humanitarian and compassionate grounds.
[2] During his interview with the immigration officer on February 4, 1998, the question of the applicant's identity was raised. The immigration officer requested him to attempt to obtain an original birth certificate in order to establish his identity. She also requested the applicant's daughter, who was his sponsor, to send a certified true copy and an English translation of her birth certificate in order to prove her blood relationship with the applicant. In her notes of the interview, the immigration officer wrote "pending - sponsor's birth certificate." At the conclusion of the interview, the immigration officer advised the applicant that she would not render an immediate decision.
[3] On February 10, 1998, six days after the interview, the immigration officer made her decision refusing the applicant's application for humanitarian and compassionate relief.
[4] On February 20, 1998, the applicant's counsel forwarded documentation and submissions to the immigration officer by overnight courier. In particular, he sent a certified true copy of the daughter's original birth certificate, as well as a certified English translation of that document. However, he stated that he applicant would probably not be able to obtain an original birth certificate, as he was born in Pakistan before the partition of India and Pakistan.
[5] By letter dated February 24, 1998, the immigration officer informed the applicant of her decision to refuse his application for humanitarian and compassionate relief.
[6] The documents forwarded by the applicant's counsel were not reviewed by the immigration officer prior to the making of her decision.
[7] Counsel for the applicant submitted that the immigration officer breached the duty of fairness by making her decision without waiting to receive the documents specifically requested by her. I agree with that submission. In my opinion, the minimal duty of fairness owed to an applicant on an application for humanitarian and compassionate relief required the immigration officer, in the circumstances of the present case, to provide the applicant with a reasonable opportunity to produce the documents specifically requested by her. Her failure to do so constitutes a breach of the minimal duty of fairness owed to the applicant.
[8] During the course of her submissions, counsel for the respondent submitted that the immigration officer was not required to wait for the documents requested by her, in that the general Request for Information form forwarded to the applicant prior to the interview indicated that identity documents and translations had to be produced at the interview. I cannot accept that submission. The provision of the form document to the applicant did not relieve the immigration officer from complying with the minimal duty of fairness owed to him following her specific request in the interview that he provide her with particular documents. In other words, having instructed the applicant to provide certain documents, she was obliged to provide him with a reasonable opportunity to comply with her request.
[9] Given my decision in this matter, it is unnecessary for me to consider the other issues raised by counsel.
[10] The application for judicial review is allowed. The decision of the immigration officer is quashed and the matter is remitted to a different immigration officer for redetermination. The case raises no serious question of general importance.
"D. McGillis"
Judge
Toronto, Ontario
February 17, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-1116-98
| STYLE OF CAUSE: BHAJAN SINGH GILL |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: WEDNESDAY, FEBRUARY 17, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT BY: McGILLIS J.
DATED: WEDNESDAY, FEBRUARY 17, 1999
APPEARANCES: Mr. Stephen Green
For the Applicant
Mr. Lori Hendriks
For the Respondent
SOLICITORS OF RECORD: Green & Spiegel
| Box 114, Standard Life Centre |
| 2200-121 King Street West |
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990217
Docket: IMM-1116-98
Between:
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR JUDGMENT
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