IMM-1606-97
B E T W E E N:
LUISA TEN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
GILES, A.S.P.:
The motion before me for an extension of time within which to file the Applicant's Record, turns upon the correctness of extending time to enable information to be obtained by proceedings under the Privacy Act.
In Muthulingam v. Canada (1991), 14 Imm. L.R. (2d) 36 (F.C.T.D., Mr. Justice Strayer then of the Trial Division, noted that a procedure existed under the then Immigration Rules 20 and 21 for obtaining information decided that an applicant should use those Rules and not seek to obtain the information by proceedings authorized under the Privacy Act. Immigration Rules 20 and 21 were not continued when the Federal Court Immigration Rules, 1993 came into effect. Rule 9 of these new Rules provides only for the production of such reasons as may exist, and not for a Court procedure to obtain other materials.
In Mongkondow v. Canada (1994), 77 F.T.R. 237, the Associate Chief Justice, Jerome had to deal with the situation after the new Immigration Rules, 1993 came into force. A motion was made to him to compel production which was being resisted by relying on the Privacy Act. The Associate Chief Justice held that the motion before him was premature and that the Privacy Act proceedings must be followed. Eventually, the Privacy Act proceedings might give rise to judicial review to compel production, but not until an adverse decision with respect to production had been made under the Privacy Act.
It appears from the cases, that where an arguable case can be sketched out leave proceedings should not be delayed pending the completion of Privacy Act proceedings, any information that may come to light later from the Privacy Act proceedings may, if sufficiently important, be subject of an interlocutory motion to add the information late.
In the case before me, the impugned decision was based on the medical condition of one of the applicant's dependents. I find it difficult to see how an argument impugning the medical decision can be made, if the medical diagnosis and reasoning linking that diagnosis with the prohibition sections are withheld.
As the Associate Chief Justice has pointed out, the method of obtaining the information is through the procedures in the Privacy Act. In a case such as this, justice requires that the applicant have the opportunity to inspect the medical information before being required to file the Applicant's Record. Delays are not uncommon in the Privacy Act procedures, and I intend to attempt to retain in this Court some control over the delays. In the initial instance, I intend to provide a sixty day extension and require that any application for a further extension be supported by evidence as to the steps taken to obtain a decision under the Privacy Act.
ORDER
The time for serving and filing the Applicant's Record is extended until August 25th, 1997. Any application for a further extension is to be supported by affidavit evidence outlining the steps taken to obtain the materials withheld under the Privacy Act.
"Peter A.K. Giles"
A.S.P.
Toronto, Ontario
June 27, 1997
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-1606-97
STYLE OF CAUSE: LUISA TEN
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
CONSIDERED AT TORONTO, ONTARIO UNDER THE PROVISION OF RULE 324.
REASONS FOR ORDER
AND ORDER BY: GILES, A.S.P.
DATED: JUNE 27, 1997
SOLICITORS OF RECORD:
Mr. Lorne Waldman
Barrister and Solicitor
281 Eglinton Avenue East
Toronto, Ontario
M4P 1L3
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Court No. IMM-1606-97
Between:
LUISA TEN
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER & ORDER