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IMM-1370-96

BETWEEN:


RACHEL TESSA BURGIN,


Applicant,


and


THE MINISTER OF CITIZENSHIP AND IMMIGRATION,


Respondent.


REASONS FOR ORDER

NOËL, J.:

     This is an application for judicial review of the decision of an immigration officer wherein it was held that there were insufficient humanitarian and compassionate grounds to grant the Applicant permission to apply for landing from within Canada.

     The Applicant raises as her principal ground for review, the fact that the decision rejecting her application was not made by the officer who conducted the interview, but by her superior. She argues that it is a fundamental principle of the Common Law that he who hears must decide, and that this principle was breached in this instance.

     It is well established that while a claimant has a right to make an application under s. 114(2) of the Act, and to have that application considered and determined on its merits, there is no duty on the part of the Minister to hold a hearing. In the case at bar, the officer charged with the task of making the decision had before her all the facts and circumstances relevant to the Applicant's claim and she specifically noted that she conducted a detailed review of these circumstances. It follows that it cannot be said that the claim was not assessed on its merits or that the Applicant was not given the right to make her case.

     Furthermore, it cannot be said that the factors considered by the decision maker did not include the "illegal de facto policy" on the ground that the interviewing officer took no notes while the criteria set out in this policy were being addressed. As the policy sets out the framework within which the Minister's discretion is to be exercised, it is an ever present consideration which cannot be said to have been excluded merely because no notes were taken.

     Finally, while the Applicant may disagree with the decision reached in this instance, it cannot be said that it is in any way unreasonable having regard to the facts which were before her.

     The application is accordingly dismissed.

     Marc Noël

     Judge

Ottawa, Ontario

January 15, 1997


FEDERAL COURT OF CANADA TRIAL DIVISION

NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD

COURT FILE NO.:

IMM-1370-96

STYLE OF CAUSE:

RACHEL TESSA BURGIN v. THE MINISTER

CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:

TORONTO

DATE OF HEARING:

JANUARY 9, 1997

REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE NOEL

DATED: JANUARY 15, 1997

APPEARANCES:

Mr. Osborne Barnwell FOR THE APPLICANT

Mr. Brian Frimeth FOR THE RESPONDENT

SOLICITORS ON THE RECORD:

Ferguson, Barnwell FOR THE APPLICANT Toronto, Ontario

Mr. George Thomson FOR THE RESPONDENT Deputy Attorney General of Canada

OF

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