FEDERAL
COURT OF CANADA
TRIAL
DIVISION
BETWEEN: IMM-3489-96
ZABEEDA
RAMPERSAUD,
Applicant,
-
and -
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION,
Respondent
----------
Heard before the
Honourable Mr. Justice J.A. Jerome, ACJ, sitting in Courtroom No. 7 of the
Federal Court of Canada, 9th Floor, Canada Life Building, 330 University
Avenue, Toronto, Ontario, on Monday, July 28, 1997.
----------
REASONS
FOR ORDER
----------
APPEARANCES:
Arlene Tinkler for
the Applicant
Kevin Lunney for
the Respondent
Stuart
Ziegler - Registrar
----------
Nethercut
& Company Limited
Official
Reporters
180
Dundas Street West,
Suite
2304
Toronto,
Ontario
M5G
1Z8
Per: C.
F. Nethercut, C.V.R. (Sworn)
HIS
LORDSHIP: I thank you, Ms Tinkler. I'm going to allow the application and
here are my reasons.
I'm
aware fully, of course, of the jurisprudence that says that this isn't a right,
that humanitarian and compassionate review is an extra bonus that applicants in
Canada get and that this process or this section doesn't create any rights, but
there are two concerns that I have. I have seen several occasions and I will
certainly turn out these decisions, but I have seen cases, and the first one of
these was a foreign domestic, and it was many years ago, and what I found there
was that the person who had turned down the merits of the application was the
same one who recommended to the Minister that there be no favourable
consideration of the humanitarian question applications, and I didn't think
necessarily that it had to be done by different people, and that would be, --
and I don't want to start getting into something like the Singh decision
where everybody gets a separate oral hearing, and don't worry, Mr. Lenney,
we're not going to overwork your client, but the automatic pilot phrase catches
me too, and I'm afraid that I see many people do this, and in this case what
triggers my concern is that 96 or 97, those pages:
"Upon a complete review of the submission filed,
information and statements made at the interview, it appears that the subject
and her son have not provided sufficient reasons to meet the humanitarian and
compassionate criteria defined in IE 9.
It is unfortunate, but the abusive situation is not a
reason to grant permanent residency within Canada."
I
don't see any conclusion here as to whether there really is one or not. I
think it must surely deserve some finding of does the abusive situation exist
because if it does, then this woman is clearly in danger of her life by going
back and then she must surely be worth some consideration, and it might be
better anyway that it be done by a separate officer. Obviously now we have to
do it by a separate officer anyway because by my having concluded that this
conclusion may be valid within various applications within the law and the
Regulations, it doesn't seem to me to be -- it seems to be sort of
contradictory in its own language, that the abusive situation is there but it
doesn't warrant the humanitarian consideration.
To
me, I think it should go back to a fresh Immigration Officer who will
reconsider it on fresh grounds and including my reasons which will highlight
that if she really is trapped in a situation, I think the Visa Officer has to
find that out and he has to conclude yes or no and it isn't enough to say that
the abusive situation is unfortunate, but it doesn't warrant her being
consideration on humanitarian and compassionate grounds.
If
the abusive situation really is what she says, and it may not be, but if it is
then she does deserve consideration, or she certainly may. So I think this
officer got it wrong and a new one should do it. Thank you. I'll file written
reasons as soon as a transcript of my own reasons are finished. Thank you.
--- Adjournment
at 5:40 p.m.
--- CERTIFIED
CORRECT:
C. F.
Nethercut, C.V.R.
Date
Transcribed: August 8, 1997
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