Date: 20020411
Docket: IMM-1309-01
Neutral Citation: 2002 FCT 416
Toronto, Ontario, Thursday, the 11th day of April, 2002
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
BEVERLEY JOHNSON
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] On April 6, 2000, the Applicant in the present case made a H & C application for an exemption from the requirement to apply for permanent residence from abroad. The initial finding in the decision refusing the H & C application relates to the Applicant's explanation for not providing a change of address with respect to a wholly different application made in 1994. The Applicant argues that the 1994 application is irrelevant to the year 2000 application, and that the Immigration Officer breached the duty of fairness by not granting an interview to allow the Applicant an opportunity to respond to her concerns on this issue.
[2] While I find that the Applicant's whole immigration record is relevant, I also find it unfair for the Immigration Officer to make a negative credibility finding on an explanation of conduct which occurred 7 years previously without providing the Applicant a meaningful opportunity to respond. It is well-established that an oral hearing in H & C applications is not required (Baker v. Canada (M.C.I.) [1999] 2 S.C.R. 817) and that written representations may be sufficient to meet the duty of procedural fairness. However, in the present case, the sole opportunity afforded to the Applicant to address this concern was in a January 12, 2001, letter sent by the Immigration Officer requesting additional information, in which the following question was included in a paragraph containing numerous other requests: "Why did you not advise Immigration of your change of address from 1994?" (Tribunal Record, p.41).
[3] In my opinion, this request did not sufficiently convey the extent of the Immigration Officer's concerns, specifically, that the Applicant's credibility was at issue. Therefore, on the facts of this case, I find that a breach of the duty of procedural fairness occurred.
ORDER
1. Accordingly, I set aside the Immigration Officer's decision and refer this matter back for redetermination by a different immigration officer.
"Douglas R. Campbell"
J.F.C.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-1309-01
STYLE OF CAUSE: BEVERLEY JOHNSON
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
DATE OF HEARING: THURSDAY, APRIL 11, 2002
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
DATED: THURSDAY, APRIL 11, 2002
APPEARANCES BY: Mr. Osborne G. Barnwell
For the Applicant
Mr. Jeremiah Eastman
For the Respondent
SOLICITORS OF RECORD: FERGUSON, BARNWELL
Barristers & Solicitors
515 Consumers Road
Suite 310
North York, Ontario
M2J 4Z2
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20020411
Docket: IMM-1309-01
BETWEEN:
BEVERLEY JOHNSON
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER