Date: 19990930
Docket: IMM-6172-98
BETWEEN:
SABRY AHMED MOHAMED THAWOOS
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
PELLETIER J.:
[1] The Applicant seeks judicial review of the refusal of his application for favourable consideration under s. 114 (2) of the Immigration Act R.S.C. 1985 c. I-2. He relies upon 3 grounds:
| 1) the Immigration Officer who made the assessment relied upon extrinsic evidence which was not disclosed to the applicant; |
| 2) no risk assessment was done; and |
| 3) he was not given the opportunity to bring to the immigration officer"s attention the fact that the proposed to marry a Canadian citizen. |
[2] The only affidavit filed in support of the application is that of the Applicant which contains a transcript of the interview with the Immigration Officer which the Applicant reconstructed from memory some time after the interview. In the affidavit, the Applicant refers to documents which he believes were before the Convention Refugee Determination Division (CRDD) and before the Immigration Officer as follows:
| I think that I was refused [ by the CRDD] because my cousin sister - wrote negative letters about me - even though there were not questions put to me about the letters I think it was the reason for my refusal. |
| The main reason why I think the Board took the letters seriously is that the letters allege that I am a drug dealer and sell drugs to school children and that I know "big big people in the United States" and that I was caught in Cuba for drug dealing. That is not true." |
[3] There is no reference in the Convention Refugee Determination Division"s decision to any correspondence from the Applicant"s cousin"s sister, nor is there any suggestion of any sort that the Applicant was considered to be a drug dealer. The certified Tribunal Record does not contain any such letters or any references to them.
[4] Counsel seeks to draw an inference from the fact that the "transcript" has the immigration officer saying: "I will then consider the letters that were sent to your refugee hearing". It is argued that this could be a reference to the cousin"s sisters letters. The Tribunal Record contains letters from the Applicant"s lawyer and his employer.
[5] There is no evidence of the existence of the letters in question other than the Applicant"s assertion that they exist. The affidavit does not disclose the basis of the Applicant"s belief that the documents in question exist. I am asked to draw an adverse inference from the failure of the Respondent to submit an affidavit denying the existence of the letters. There may well be circumstances where an adverse inference could be drawn, but, in my view, a bald unsupported assertion of the existence of a document does not require denial by means of an affidavit.
[6] In the end result, it does not matter if the letters exist or not because this is not a case of extrinsic evidence as that term is used in some of the cases. In Shah v. Canada [1994] F.C.J. No 1299, Hugessen J.A., speaking for the Court of Appeal said that the obligations on an officer conducting a humanitarian and compassionate assessment was not onerous. "No hearing need be held and no reasons need be given"1. He goes on to say "Of course, if she is going to rely on extrinsic evidence not brought forward by the Applicant, she must give him a chance to respond to such evidence." Rothstein J. in Dasent v. Canada ( M.C.I.) [1995] 1 F.C. 720 described extrinsic evidence as "evidence of which the Applicant is unaware because it comes from an outside source. This would be evidence of which the Applicant has no knowledge and on which the immigration officer intends to rely in making a decision affecting the Applicant."
[7] The Applicant cannot be said to lack knowledge of the letters since he is the one who brought the subject up in the course of his interview with the immigration officer. As a result, he had an opportunity to speak to them and in fact, did so. The failure of the immigration officer to disclose the letters to him did not deprive him of the opportunity to confront the allegations apparently contained in the letters. This ground of review fails.
[8] The second ground of review is that the officer did not do a risk assessment in coming to her decision. Counsel corrected this at the hearing to say that, having received the tribunal record, she conceded that a risk assessment had been done, but contended that it had not been done properly. Even if the standard of review is reasonableness simpliciter as opposed to patently unreasonable, the result is the same. While there was evidence on which the immigration officer might have come to a different conclusion, it cannot be said that her conclusion was unreasonable.
[9] The final ground of review is that the Applicant was not allowed to tell the immigration officer of his projected marriage to a Canadian citizen. The affidavit of the Applicant says that the interview lasted approximately 35 minutes. The transcript prepared by the Applicant could be read aloud in 5 minutes or less. Assuming that conversation is twice as slow as reading a transcript, this would still leave approximately 25 minutes of conversation in which the Applicant could have spoken of his proposed marriage had he thought it important to do so. The tribunal record contains a lengthy letter from his former counsel to the immigration officer dealing with various aspects of the Applicant"s humanitarian and compassionate grounds application. There is no mention of the impending marriage in that letter. It may be that the Applicant now has a different appreciation of the significance of his proposed marriage but there is no credible evidence which would support a claim that he was not given the opportunity to bring this to the Immigration Officer"s attention. This ground of review fails as well.
[10] For these reasons, the application for judicial review should be dismissed.
[11] Neither counsel suggested a serious question of general application to be certified.
ORDER
The application for judicial review is dismissed.
"J.D. Denis Pelletier"
JUDGE
TORONTO, ONTARIO
September 30, 1999
| FEDERAL COURT OF CANADA |
Names of Counsel and Solicitors of Record
| COURT NO: IMM-6172-98 |
| STYLE OF CAUSE: SABRY AHMED MOHAMED THAWOOS |
| - and - |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
| DATE OF HEARING: TUESDAY, SEPTEMBER 28, 1999 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER AND ORDER BY: PELLETIER J. |
DATED: THURSDAY, SEPTEMBER 30, 1999
| APPEARANCES: Ms. Mary Lam |
For the Applicant
Mr. Brian Frimeth
For the Respondent
SOLICITORS OF RECORD: Cecil L. Rotenberg, Q.C.
Barristers & Solicitors
255 Duncan Mill Road
Suite 808
Don Mills, Ontario
M3B 3H9
| For the Applicant |
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date:19990930
Docket: IMM-6172-98
Between:
| SABRY AHMED MOHAMED THAWOOS |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
| REASONS FOR ORDER |
AND ORDER
__________________
1This must now be read in the light of Baker v. Canada (M.C.I.) [1999] S.C.J. 39