Date: 20000718
Docket: IMM-217-00
BETWEEN:
ZENAIDA BLENZA ANTONIO, And minors DONNA KRYSTAL
ANTONIO and SHERYL NICOLE ANTONIO (Through their Litigation Guardian ZENAIDA BLENZA ANTONIO)
Applicants
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
CAMPBELL J.
[1] In reaching a negative decision on the Applicant"s application for humanitarian and compassionate relief under s.114(2) of the Immigration Act in the present case, I am satisfied that the immigration officer made a fundamental error of fact which warrants a re-determination.
[2] In his decision, the immigration officer says this:
| Ms. Antonio has not sufficiently established herself in Canada. She has stated that she has been employed as a cleaning lady since August 1998, yet this appears unsubstantiated and is even contradicted by her statements at the interview. Prior to her present employment, she had been unemployed for the previous eight years. In her application, she stated "she was on social assistance for 2-3 months in 1993". This statement was refuted by Metro Community Services that states her family received assistance from 01 February 1992 until 31 January 1996. This information not only highlights the applicants reliance on the government for support, but lends doubt to the credibility of other statements she has made. |
[3] I am satisfied that the record contains inadequate evidence upon which to base the very important negative credibility finding made, and, thus, the finding is made in reviewable error.
[4] At the time of scheduling the Applicant"s personal interview, the immigration officer provided an opportunity to the Applicant"s counsel to be present. However, because the opportunity was extended on extremely short notice, and, therefore, counsel could not attend on the few hearing date options supplied, the Applicant could not take advantage of this opportunity. I find that, in this case, on these facts, to ensure that no misunderstanding of the Applicant"s evidence can arise, counsel must be present at her interview.
ORDER
[5] Accordingly, I hereby set aside the decision herein and refer this matter to a different immigration officer for re-determination. With respect to the re-determination, I direct that, if it is the Applicant"s wish, she be represented by counsel during her interview as part of the re-determination process.
[6] Counsel for the Respondent argues that my direction constitutes a finding of law that Applicants for humanitarian and compassionate relief have a right to be represented by counsel in personal interviews if granted, and, therefore, asks that a question be certified on this issue. I decline this request because my direction has importance only on the facts of this case.
[7] I make no order as to costs.
"Douglas R. Campbell"
J.F.C.C.
Toronto, Ontario
July 18, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-217-00 |
| STYLE OF CAUSE: ZENAIDA BLENZA ANTONIO, And minors DONNA KRYSTAL ANTONIO and SHERYL NICOLE ANTONIO (Through their Litigation Guardian ZENAIDA BLENZA ANTONIO) |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
| DATE OF HEARING: MONDAY, JULY 17, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
REASONS FOR ORDER
| AND ORDER BY: CAMPBELL J. |
DATED: TUESDAY, JULY 18, 2000
| APPEARANCES BY: Mr. Roger Rowe |
| For the Applicants |
| Mr. David Tyndale |
| For the Respondent |
| SOLICITORS OF RECORD: Roger Rowe |
Barrister & Solicitor
1183 Finch Avenue West
Suite 405
North York, Ontario
M3J 2G2
| For the Applicants |
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20000718
Docket: IMM-217-00
BETWEEN:
| ZENAIDA BLENZA ANTONIO, And minors |
DONNA KRYSTAL ANTONIO and SHERYL
NICOLE ANTONIO (Through their Litigation
Guardian ZENAIDA BLENZA ANTONIO)
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
| REASONS FOR ORDER |
AND ORDER