Date: 20040609
Docket: IMM-2067-03
Citation: 2004 FC 828
Toronto, Ontario, June 9th, 2004
Present: The Honourable Mr. Justice von Finckenstein
BETWEEN:
THANALAKSUMI SUPPIAH
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
(Delivered orally from the bench and subsequently written for clarification and precision.)
[1] This is an application for judicial review of the decision of an Immigration Officer ("Tribunal"), dated February 6, 2003 not to grant the Applicant an exemption for humanitarian and compassionate ("H & C") considerations under subsection 25(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] The Applicant is a citizen of Sri Lanka. She came to Canada in 1997, made a refugee claim and her claim was denied. Her H & C request to apply for permanent residence from within Canada, as opposed to from outside the country, was denied on February 6, 2003. The Tribunal gave short reasons making no reference to the Applicant being or having been on social assistance.
[3] However there was hand-written sheet dated January 30, 2003 on the Tribunal record right after the decision. It contained two columns entitled "+" and "-". Below the negative sign, the Tribunal wrote, amongst other things, "on social assistance since 1998".
[4] The Applicant indicated in her application form of September 14, 2001 that she was not on social welfare. Welfare authorities however informed the Tribunal by fax that she was on social assistance from December 1997 to October 2001.
[5] This discrepancy between the information on her application form and the information from welfare authorities was never put to the Applicant. Given the note on the Tribunal record, one can reasonably conclude that it entered into the considerations of the Tribunal.
[6] The duty of fairness requires an immigration officer who consults a third party and obtains information from that source to disclose it so that the Applicant is aware it is being considered and can respond to it. See Akomah v. Canada (Minister of Citizenship and Immigration) 2002 FCT 99, and Sorkhabi v. Canada (Minister of Citizenship and Immigration) (1994), 89 F.T.R. 224.
[7] The Respondent pointed out that the Applicant was less than truthful in her application for leave to bring this application. While this is quite true, it does not excuse the lack of procedural fairness extended to the Applicant.
[8] Consequently this application will be allowed.
ORDER
THIS COURT ORDERS that:
1. This application be allowed.
2. The matter referred back for reconsideration by a differently constituted Tribunal.
"K. von Fickenstein"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2067-03
STYLE OF CAUSE: THANALAKSUM SUPPIAH
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JUNE 8, 2004
REASONS FOR ORDER
AND ORDER: VON FINCKENSTEIN J.
DATED: JUNE 9, 2004
APPEARANCES:
Kristina Kostadinov For the Applicant
Marcel Larouche For the Respondent
SOLICITORS OF RECORD:
Waldman & Associates
Barristers & Solicitors
Toronto, ON For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada For the Respondent
TRIAL DIVISION
Date: 20040609
Docket: IMM-2067-03
BETWEEN:
THANALAKSUM SUPPIAH
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER