IMM-310-96
BETWEEN:
ROBERT KWASI OBENG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
ROTHSTEIN, J.:
The issue in this judicial review is whether the applicant hindered or delayed the execution of his removal from Canada so as to exclude him from the Deferred Removal Orders Class (DROC). The relevant provision is paragraph (f) of the definition of "Member of the Deferred Removal Orders Class" in subsection 2(1) of the Immigration Regulations:
| 2. (1) "Member of the Deferred Removal Orders Class" means an immigrant |
| . . . |
| (f) who, where the immigrant is subject to an exclusion order or a deportation order, has not hindered or delayed its execution, including failing to present himself or herself for a pre-removal interview or for removal in accordance with the removal arrangements made by an immigration officer. |
The applicant arrived in Canada on November 24, 1990 and submitted a claim for refugee status. On November 26, 1990, he was released from detention after signing an Acknowledgement of Terms and Conditions of Release. Included in that Acknowledgement was a requirement:
| Shall report your address, and any subsequent change in address, in person or by registered mail, to the Canada Immigration Centre, Mississauga Enforcement, 6900 Airport Road, Entrance "J", BEFORE ANY CHANGE in address as undertaken. |
On November 30, 1990, he informed the Mississauga office that his address was 3000 Victoria Park, No. 417.
The applicant's refugee claim was dismissed by the CRDD on May 5, 1992 and this decision was sent to the applicant at the Victoria Park address. Apparently, it was received as the applicant on or about May 8, 1992 filed a judicial review application respecting the CRDD decision.
The applicant says he moved to 1600 Sandhurst Circle, apt. 1906, Scarborough in May 1992, and then to 10 Humber Line, apt. 701, Etobicoke, in November 1992. He says he told Immigration of these changes of address by telephone but has no verification to prove he did so.
In early 1993, the respondent forwarded a call-in letter to the applicant at the Victoria Park address, requesting that he present himself for an interview on February 18, 1993 regarding his pending removal. The letter was not returned. However, the applicant did not appear. A warrant for his arrest was issued on March 20, 1993. The respondent says that in November 1994 it was ascertained through an application for a work authority made by the applicant that he had moved to the Humber Line address. However, this was well after the call-in letter scheduling the applicant's interview for removal on February 18, 1993. Further, it appears the respondent's investigator did not believe the applicant was living at Humber Line based on the inference that since the female occupant was on mother's allowance, she was living alone.
In June 1995, the applicant made a DROC application. An investigation was carried out to see if the arrest warrant issued on March 20, 1993 was valid. After investigation, the Minister wrote to the applicant on December 19, 1995, informing him that because he had hindered or delayed his removal from Canada by not reporting changes of address to Immigration, his DROC application was refused. This is the judicial review of that decision.
The applicant, as indicated, did seek judicial review of the dismissal of his refugee claim in May 1992. On his judicial review application, filed on or about May 8, 1992, he stated that his address was 1600 Sandhurst Circle, apt. 1906, Scarborough. His address for service was indicated as:
| c/o Sam Reisenberg |
| Barrister & Solicitor |
| 49 College Street, Suite 303 |
| Toronto, Ontario |
| M6G 1A5 |
| (416 - 926-8034) |
Documents were filed in the judicial review application by the respondent and there is no indication they were not served on the applicant either at his personal address or at his address for service.
For some reason, in conducting her investigation, the respondent's investigator did not have regard for the personal address and the address for service given by the applicant in his judicial review application or for the fact that the respondent served the applicant with documents in that judicial review. On the contrary, the affidavit of L.M. Mansfield, the respondent's investigator states:
| 4. There is no record on the file of subject ever residing at 1900-1600 Sandhurst Circle, Scarborough, Ontario. This address, provided in Mr. Obeng's affidavit, is the first time that this address has come to the attention of Immigration. |
That statement, apparently upon which the DROC decision-maker relied, is not in accord with the facts. The address of the applicant at 1906-1600 Sandhurst Circle came to the attention of "Immigration" when the judicial review application was filed and served.
By memo dated November 23, 1995, from L.M. Mansfield to D. Clark, it is stated:
| 12 August 92 |
| Notice on file regarding Federal Court dismissal. |
| Letter from new Counsel - Sam Reisenberg submitting H & C to Central Removals on 01 Oct. 1992. |
| Negative H & C and negative post-claim review. |
The date of the negative H & C decision and negative post-claim review is not indicated nor is the address at which the decision was served on the applicant indicated (there is nothing in the file to suggest it could not be served on him). The relatively close timing of the H & C application (October 1, 1992) and the sending of the call-in letter (early 1993) raise the question why the call-in letter was not sent to the same address as the H & C decision. It is thus apparent that the decision that the applicant hindered or delayed execution of his removal from Canada was made without regard to all the facts that were in the possession of the respondent.
Counsel for the respondent relies heavily on the Acknowledgement of Terms and Conditions for the applicant's Release that he signed in 1990 which specified precisely how he was to advise the respondent of any change of address. The applicant did not follow the instructions in the Acknowledgement precisely. Failure to comply with the Acknowledgement may often amount to hindering or delaying the removal, but such failure is not always automatically equivalent to hindering or delaying. The circumstances in each case must be considered.
The respondent's department is large and instructions are given to applicants as to precisely how they are to notify Immigration of a change of address so that the change is properly recorded. It may be that addresses in court documents do not readily find their way onto the Minister's computer records. However, the test in the Immigration Regulations is whether the applicant hindered or delayed his removal and not whether he complied with the condition of his Acknowledgement. When a change of address is provided to Immigration, that information cannot be ignored by the officer who decides whether an applicant has hindered or delayed his removal.
The judicial review is allowed and the matter remitted to the respondent for redetermination by a different officer having regard to all relevant information pertaining to the question of hinderance and delay.
"Marshall E. Rothstein"
Judge
TORONTO, ONTARIO
APRIL 11, 1997
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-310-96
STYLE OF CAUSE: ROBERT KWASI OBENG
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: MARCH 20, 1997
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: ROTHSTEIN, J.
DATED: APRIL 11, 1997
APPEARANCES:
Mr. Raoul Boulakia
For the Applicant
Mr. Godwin Friday
For the Respondent
SOLICITORS OF RECORD:
Barrister and Solicitor
2 College Street
Toronto, Ontario
M5X 1K6
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Court No.: IMM-310-96
Between:
ROBERT KWASI OBENG
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER