Date: 19981120
Docket: IMM-826-98
BETWEEN:
KALARANJANI THARMALINGAM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.
[1] These reasons arise out of an application for judicial review of a decision of a Senior Immigration Officer rejecting the application of the Applicant for landing from within Canada on the basis of humanitarian and compassionate considerations pursuant to subsection 114(2) of the Immigration Act.1
[2] The decision letter is dated the 6th of February, 1998. The substance of the decision is in the following terms:
| Your application and personal circumstances have been carefully and sympathetically reviewed. It has been determined, however, that there are insufficient compelling humanitarian and compassionate grounds to warrant an exemption from the normal legislative requirements. |
[3] The "normal legislative requirements" are reflective of subsection 9(1) of the Immigration Act which provides, among other things, that a person seeking to immigrate to Canada must make an application for and obtain a visa while outside Canada.
[4] Counsel for the Applicant urged that the Senior Immigration Officer erred in a reviewable manner in two respects: first, by relying on "extrinsic evidence" that was not disclosed to the Applicant and to which the Applicant was not given an opportunity to reply; and second, by fettering her or his discretion in reaching the decision under review by failing to act in accordance with guidelines reflecting the manner in which applications of the nature here under consideration should be reviewed and determined.
[5] For the reasons that follow, I conclude that this application for judicial review should be allowed.
[6] It is now well established that the duty of fairness owed by the Respondent on an application for humanitarian and compassionate relief is minimal. In Shah v. Canada (Minister of Employment and Immigration)2, Mr. Justice Hugessen wrote:
| It is a commonplace that the content of the duty of fairness varies according to the circumstances. In the present case we are all of the view that such content was minimal. |
[7] Mr. Justice Hugessen was speaking of a case such as this. Mr. Justice Hugessen went on to describe the following element of the duty of fairness that remains applicable in a case such as this:
| ... if she is going to rely on extrinsic evidence not brought forward by the applicant, she must give him [the applicant] a chance to respond to such evidence. |
[8] What constitutes extrinsic evidence is now reasonably well established.3 The Applicant was advised of the material considered by the Senior Immigration Officer in arriving at his decision and that was not provided to the Officer on behalf of the Applicant. Some of that material, which was not disclosed to the Applicant in the course of consideration of her application or in the course of this application for judicial review, might have been in the nature of extrinsic evidence. Such material included a letter from an Embassy of the United States dated March 6th, 1997, not further described, a Return of Non-Resident Alien-Reciprocal Arrangement dated April 25th, 1996 and a "Preliminary Survey of Medical and Psychosocial Services for Victims of Human Right Violations-Sri Lanka: Family Rehabilitation Centre providing Medical, Psychological and Social Services-Amnesty International dated January 5th, 1994.
[9] The Order granting leave to commence this application for judicial review required the "Tribunal" to provide copies of its record to the parties and to the Registry of the Court on or before September 23, 1998, unless it had been already done so. The "Tribunal", in this case the Respondent as represented by the Senior Immigration Officer, failed to comply with this Order of the Court. In the result, both counsel and this Court were left to speculate as to the nature of the material taken into account that is described above.
[10] Counsel for the Respondent urged that the Applicant had simply failed to meet the onus on her to establish that the material to which I have earlier referred constituted extrinsic evidence. In essence, Counsel urged that the Respondent should benefit by her contempt of an Order of the Court since a tribunal record would, presumably, and in the circumstances I am prepared to make this presumption against the Respondent, have helped to clarify whether the material that I have described was or was not extrinsic evidence.
[11] I cannot accept the submission of Counsel for the Respondent. A party cannot benefit by its contempt of an Order of this Court. While I accept that the onus on an application such as this is a "heavy one"4, I conclude that it is not so heavy as to require the Applicant to prove the nature, extrinsic or otherwise, of material considered by the Senior Immigration Officer that the Respondent failed to put before the Court in contravention of an Order of the Court.
[12] For the forgoing reasons, as indicated earlier, this application for judicial review will be allowed, the decision of the Senior Immigration Officer that is under review will be set aside and the matter referred back to the Respondent for redetermination by a different Officer. The Applicant will have 60 days from the date of my order to make new or supplementary submissions and the Respondent will be at liberty to consider such material in addition to any such submissions by the Applicant as she considers appropriate in the circumstances of the day.
[13] Neither Counsel recommended certification of a question. No question will be certified. There will be no order as to costs.
"Frederick E. Gibson"
Judge
Toronto, Ontario
November 20, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-826-98 |
| STYLE OF CAUSE: KALARANJANI THARMALINGAM |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: TUESDAY, NOVEMBER 17, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: GIBSON J.
DATED: FRIDAY, NOVEMBER 20, 1998
APPEARANCES: Mr. Yehuda Levinson
For the Applicant
Mr. Brian Frimeth
For the Respondent
SOLICITORS OF RECORD: Levinson & Associates
| Barristers & Solicitors |
| 212 King Street West |
| Suite 410 |
| Toronto, Ontario |
| M5H 1K5 |
| For the Applicant |
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19981120
Docket: IMM-826-98
Between:
| KALARANJANI THARMALINGAM |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER
__________________
2 (1994), 29 Imm. L.R. (2d) 82 at 83 (F.C.A.).
3 See Dasent v. Canada (Minister of Citizenship and Immigration), (1996), 193 N.R. 303 (F.C.A.) and Mancia v. Canada (Minister of Citizenship and Immigration), [1998] 3 F.C. 461 (C.A.).