Akomah v. Canada (Minister of Citizenship and Immigration)

IMM-5341-00

2002 FCT 99, Hansen J.

28/1/02

9 pp.

Application for judicial review of decision by Citizenship and Immigration Officer denying applicant processing from within Canada on humanitarian and compassionate grounds --Officer finding applicant's marriage one of convenience --Applicant citizen of Ghana, married to Frank Oduro in Scarborough, Ontario in April 1997--Husband applied to sponsor application for landing in November 1998-- Applicant, husband swore affidavits stating marriage genuine--After having interviewed both parties, immigration officer denied application on basis marriage not bona fide--Applicant alleging denial of natural justice on basis immigration officer did not reveal adverse information in file with respect to whether marriage genuine --Also alleging denial of meaningful opportunity to present case--Duty of fairness requiring immigration officer assessing H&C application to provide applicant with notice of extrinsic evidence, to give applicant opportunity to respond to it prior to rendering decision--Respondent relying on affidavit of Gregory G. George, solicitor with Immigration Law Section of Department of Justice-- Federal Court Immigration Rules, 1993, s. 12(1) applied-- Effect of rule usual common law rules of evidence, including hearsay rule, will govern admissibility of George affidavit--Hearsay evidence only admissible when Court satisfied two-part test of necessity, reliability met--Direct contradiction between testimony of applicant, position taken by respondent--Latter failing to satisfy Court of necessity of bringing forward immigration officer's testimony in proper manner--No weight given to George affidavit herein--Duty of fairness requiring officer to bring extrinsic evidence adverse to applicant's interest to her attention--Applicant must be afforded opportunity to respond to information--Not afforded that opportunity-- Application allowed--Federal Court Immigration Rules, 1993, SOR/93-22, s. 12.