Date: 19981023
Docket: IMM-5109-97
BETWEEN:
BARBARA ENGREED REDMAN
RENEE AYANNA HINDS and
SEAN RYAN HINDS
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROTHSTEIN J.
[1] In this judicial review of a negative humanitarian and compassionate decision rendered by an Immigration Officer, the issue involves extrinsic evidence. The Immigration Officer received an anonymous letter that was prejudicial to the applicants. The letter was not disclosed to the applicants. It was only discovered by applicants' counsel when the respondent's files were examined in preparation for this judicial review.
[2] The Immigration Officer filed an affidavit saying she did not consider the letter as relevant to the assessment of the applicants' application.
[3] In the circumstances of this case I am not satisfied that there was compliance with the requirements of procedural fairness. I come to this conclusion bearing in mind the minimal standard of fairness applicable to humanitarian and compassionate proceedings prescribed by Shah v. Minister of Employment and Immigration, A-617-92, per Hugessen J.A. (as he then was) June 24, 1994.
[4] When an anonymous letter prejudicial to an applicant is received by an Immigration Officer, such letter must be disclosed. The alternative - non-disclosure discovery by an applicant after a negative decision has been made and then an assertion by the Immigration Officer that the letter was not relied upon - leads to a perception of unfairness.
[5] Of course, apparent irregularities discovered after a negative decision is made are often explained or justified. In some circumstances, however, such after the fact explanation or justification will not satisfactorily meet the requirements of fairness. In the immigration context, anonymous prejudicial letters are particularly nasty and offensive. In most cases, the contents of such communications will rightly be disregarded. However, fairness requires that when such potentially damaging information is received it must be disclosed so that an applicant may be satisfied, before a decision is made, that it will be disregarded, or that he or she has had an opportunity to respond to it.
[6] The judicial review is allowed and the matter is remitted for redetermination by a different Immigration Officer. The parties did not ask that a question be certified for appeal.
"Marshall Rothstein"
Judge
TORONTO, ONTARIO
October 23, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-5109-97
| STYLE OF CAUSE: BARBARA ENGREED REDMAN |
RENEE AYANNA HINDS and
SEAN RYAN HINDS
- and -
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
DATE OF HEARING: THURSDAY, OCTOBER 22, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: ROTHSTEIN, J.
DATED: FRIDAY, OCTOBER 23, 1998
APPEARANCES: Ms. Marie Chen
For the Applicants
Mr. Toby J. Hoffmann
For the Respondent
SOLICITORS OF RECORD: Jackman, Waldman and Associates
| Barristers & Solicitors |
| 281 Eglinton Avenue West |
Toronto, Ontario
M4P 1L3
For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19981023
Docket: IMM-5109-97
Between:
BARBARA ENGREED REDMAN
RENEE AYANNA HINDS and
SEAN RYAN HINDS
Applicants
- and -
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
Respondent
REASONS FOR ORDER