Machado v. Canada ( Minister of Citizenship and Immigration )
IMM-2694-94
MacKay J.
22/9/95
6 pp.
Salvadoran applicants, husband, wife and child, first arrived in Canada in 1987 and claimed Convention refugee status-Application dismissed in 1992-In 1993, husband, suffering from bone marrow cancer, described as aplastic anemia, and also diabetes mellitus, received bone marrow transplant, followed by serious complications which might develop into chronic condition-In April 1994, departure notice issued against applicants for medical inadmissibility of husband and for economic inadmissibility of applicants collectively-Two days later, applying for permanent resident status, invoking humanitarian and compassionate grounds, asking for speedy reply, as applicant thought delay might result in deportation-Refusal based mainly on medical inadmissibility of husband-Applicants alleged treatment would not be available in El Salvador; respondent's own inquiry led to conclusion treatment in fact available in El Salvador-Decision dismissing H & C application before applicant could request details of medical evidence and comment thereon-Application for judicial review of immigration officer's decision allowed-Applicant should have been provided with opportunity to respond to extrinsic evidence relied upon by officer in making decision, before decision made: Shah v. Minister of Employment and Immigration (1994), 170 N.R. 238 (F.C.A.)-Request for speedy reply not waiver of rights to procedural fairness and not allowing respondent to avoid responsibility to act fairly-However, even if medical services not available in El Salvador, immigration officer, not Court, will determine whether recommendation should be made on H & C grounds for permanent resident status to be granted.