CITIZENSHIP AND IMMIGRATION
Status in Canada
Permanent Residents
Humanitarian and Compassionate Considerations
Judicial review of Immigration Officer’s decision denying application for exemption from requirement of Immigration Act, s. 9(1)—Applicants entered Canada in 1988—Refugee claims denied by MCI—Applicants made two applications on humanitarian and compassionate (H&C) grounds, one in 1990 and another in 1992—On August 1, 2001, applicants again applied to Immigration Canada for exemption from immigrant visa requirement based on humanitarian and compassionate grounds—Whether Immigration Officer violated rules of fairness and natural justice by failing to disclose extrinsic information pertaining to 1990 and 1992 H&C applications and failed to allow meaningful participation to applicants—Extrinsic information appears drawn from source applicants led to believe no longer existed—Indeed, immigration officer told applicants paper file regarding previous case had been destroyed—Had they known paper file actually existed, applicants would have reviewd its content and made submissions to clarify and correct Immigration Officer’s erroneous interpretation regarding information contradicted by applicants’ assertions—Not given opportunity to do so, situation led to allegedly unfair decision, based on erroneous information resulting in mistake of fact—In Shah v. Canada (Minister of Employment and Immigration) (1994), 170 N.R. 238 (F.C.A.), leading authority on issue of use of extrinsic evidence, Court stated if immigration officer replies on extrinsic evidence, not brought forward by applicant, immigration officer must give applicant chance to respond to extrinsic evidence—Relevant point whether applicant had knowledge of information and therefore had opportunity to correct prejudicial misunderstandings or misstatements—In present case, applicants at all times led to believe paper file no longer existed, which put them in difficult position of having to prove by other means truth of their claim—Court concluding information contained in applicants’ backlog file pertaining to previous H&C applications extrinsic evidence, not brought forward by applicant for purposes of present application and applicants never had opportunity to deal with evidence in question—Whether Immigration Officer subsequently relied on extrinsic information—No clear evidence officer did not draw negative credibility assessment—Evidence clearly shows Immigration Officer had some serious concerns about credibility of applicant’s claim—Mere mention by Immigration Officer in notes that did not consider paper file to be extrinsic information requiring response from client clearly insufficient—Non-disclosure of relevant information leading to perception of unfairness and breach of duty—Further, breach of natural justice appreciably affected final decision—Therefore, application allowed and matter referred back for redetermination to different immigration officer—Immigration Act, R.S.C., 1985, c. I-2, s. 9(1) (as am. by S.C. 1992, c. 49, s. 4).
Ardiles v. Canada (Minister of Citizenship and Immigration) (IMM-3-02, 2002 FCT 1323, Rouleau J., order dated 10/12/02, 16 pp.)