Date: 19980731
Docket: IMM-4048-97
BETWEEN:
FAISAL AHMED
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
CAMPBELL, J.
[1] This case concerns the application of s. 2(1)(f) of the Immigration Regulations which reads as follows:
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. |
[2] The Immigration Officer's decision made under this section dated September 9, 1997 reads as follows:
| We are writing in reference to the application which you submitted under the Deferred Removal Orders Class. After careful consideration, we regret to inform you that you do not meet the eligibility criteria for this program due to the following reason(s): you hindered your removal from Canada. Your case in now being referred to your local Hearings or Removals officer for further action. |
[3] Of critical importance to this finding are the facts relating to the applicant's failure to appear at a pre-removal interview on November 20th 1996. As to whether this failure qualifies as a "failure to present" under s. 2(1)(f) of the Regulations, there is no evidence on the face of the record that the applicant got notice of the requirement to appear on that date. Accordingly, it would be an error to base the decision on only the fact of his non-attendance.
[4] Respecting other proof that the applicant hindered his removal, before the decision-maker was detailed medical evidence regarding the applicant's poor health during the fall of 1996. As a result of this evidence, the applicant's removal date was deferred in stages from September 29, 1996 to November 20, 1996. The medical evidence, therefore, was given some credence in the fall of 1996.
[5] I find that the applicant's intentions are central to the conduct he displayed in the fall of 1996, and accordingly, must be the subject of scrutiny by the decision-maker. I think it is fair to say that the decision-maker found that the applicant's intentions were bad. I find, however, that this finding is made without regard to the apparently cogent and credible medical evidence available which casts serious doubt on the applicant's intentions in any of his conduct. Thus, I find a reviewable error has occurred in this case and, therefore, set the order aside and refer the matter to another immigration officer for redetermination.
[6] However, respecting the redetermination, I hereby direct that a personal interview be provided to the applicant, and that such interview shall include the opportunity for the applicant to give and call evidence and make argument, with or without the assistance of counsel, as to the events that transpired up to and including December 13, 1996.
[7] If the applicant fails to appear at the redetermination interview, in my opinion, the immigration officer conducting the interview is entitled to draw an inference adverse to the applicant.
"Douglas R. Campbell"
Judge
Toronto, Ontario
July 31, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-4048-97
| STYLE OF CAUSE: |
FAISAL AHMED
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: FRIDAY, JULY 31, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: CAMPBELL, J.
DATED: FRIDAY, JULY 31, 1998
APPEARANCES:
Mr. Steven R. Solway
For the Applicant
Ms. Sally Thomas
For the Respondent
SOLICITORS OF RECORD:
| Green & Spiegel |
| Barristers and Solicitors |
| 121 King Street West |
Suite 2200, P.O. Box 114
Toronto, Ontario
| M5H 3T9 |
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19980731
Docket: IMM-4048-97
Between:
| FAISAL AHMED |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER
| AND ORDER |