Date: 20020221
Docket: IMM-4849-00
Neutral citation: 2002 FCT 189
Toronto, Ontario, Thursday, the 21st day of February, 2002.
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
OLUWATOYIN JOSEPH MARTINS
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review of a decision of Visa Officer Sue Kwan denying the Applicant's Humanitarian and Compassionate (H & C) application.
[2] The Applicant made the H & C application in January 1994. In June 2000, he was interviewed by Ms. Kwan. On September 1, 2000, the Applicant received a letter from Visa Officer D. Larson, informing him that additional documentation was required to assess his case. Visa Officer Larson closed the letter with the following statement:
Your earliest attention to this matter is appreciated, as no further action will be taken on your H & C application until this information is received.
[3] Despite this assurance, the Applicant subsequently received a refusal letter dated September 8, 2000. The letter contained the following information:
On 29 June 2000, a delegate of the Minister of Citizenship and Immigration reviewed the individual circumstances of your request for an exemption from the requirement of subsection 9(1) and decided that an exemption will not be granted for your application.
[4] These facts are not in dispute. In fact, the Tribunal Record contains the negative 29 June 2000 decision signed by Ms. Kwan. However, no affidavit was supplied by the Respondent to explain why the representation of 1 September 2000 was made.
[5] I am in agreement with the Applicant's submission that the above misleading communications constitute a breach of procedural fairness in this case. Visa Officer Larson made specific representations to the Applicant regarding the processing of his application. Of particular importance is the assurance that no further action on the application would be taken until the materials requested were received. In my opinion, the letter of September 1, 2002, gave rise to the Applicant's legitimate expectation that a final decision in his case had not been made and that the materials to be submitted might have had an effect on that decision.
[6] It is well-established that legitimate expectations may determine the duty of fairness required in given circumstances (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at para. 26). While this doctrine does not afford any substantive rights, the Applicant in this case is entitled to the procedures promised in Visa Officer Larson's letter.
ORDER
1. Accordingly, this application for judicial review is allowed and the matter is remitted to a different visa officer for redetermination.
2. I consider that special circumstances exist in the present case. The due process error is obvious, and, in my opinion, no judicial review was necessary for the Minister to recognize it. Accordingly, I award $750.00 costs to the Applicant.
"Douglas R. Campbell"
J.F.C.C.
Toronto, Ontario
February 21, 2002.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-4849-00
STYLE OF CAUSE: OLUWATOYIN JOSEPH MARTINS
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
DATE OF HEARING: THURSDAY, FEBRUARY 21, 2002
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
DATED: THURSDAY, FEBRUARY 21, 2002
APPEARANCES BY: Mr. Damonze
For the Applicant
Mr. David Tyndale
For the Respondent
SOLICITORS OF RECORD: Mr. Damonze
Barrister & Solicitor
50 Richmond St. E. Suite 101
Toronto, Ontario
M5C 1N7
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20020221
Docket: IMM-4849-00
BETWEEN:
OLUWATOYIN JOSEPH MARTINS
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER