Date: 19991006
Docket: IMM-392-99
Ottawa, Ontario, the 6th day of October 1999
PRESENT: THE HONOURABLE J. D. DENIS PELLETIER
BETWEEN:
CHRISTINA ODURO
Moving Party
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] On June 29, 1999, the moving party filed with the Court a motion to reconsider my order dated April 28, 1999, by which her leave application was dismissed on the ground that the Court considered it superfluous. As the motion to reconsider was made more than 10 days after my initial order, the moving party is also seeking an extension of the ten-day period set out in Rule 397 of the Federal Court Rules, 1998.
[2] The facts are neither complex nor contested. The moving party sponsored applications for landing for her daughter and son. As the visa officer was not satisfied with the documentation, she insisted on a D.N.A. test. The parties underwent the test, but the results were disappointing: the identity of the son was established, but not that of the daughter. The analyst officer who evaluated the test results said:
| The tested woman is excluded as the biological mother of the child because she lacks the genetic markers that must be contributed to the child by the biological mother. |
The analyst officer concluded that there was no possibility that the moving party was the mother of her "daughter".
[3] On the basis of this evidence, the visa officer refused to grant a visa to the girl. In accordance with s. 77(3) of the Immigration Act,1 R.S.C., 1995, c. I-2, the moving party appealed the visa officer's decision to the Appeal Division of the Immigration and Refugee Board. She produced more evidence of motherhood, namely photographs of herself and her son and, apparently, a medical certificate. She also stated that she did not have any money and could not pay for a second D.N.A. test.
[4] The Appeal Division held that this evidence was not sufficient to overturn the scientific evidence supporting the visa officer's decision. The Appeal Division noted that there were also contradictions in the mother's evidence. She testified that she was born in a small village named Saborum, while her application for permanent residence indicated that she was born at Kumasi. The Appeal Division did not find the moving party's explanation about this contradiction convincing.
[5] The moving party then brought an application for leave and for judicial review of the Appeal Division's decision. When this matter was brought before me, I determined that the decision was a matter arising under an application under section 77 of the Act and that accordingly leave was not necessary pursuant to section 82.1(2) of the Act. I stated:
| [TRANSLATION] This leave application concerns a decision made under section 77(3) of the Immigration Act. Section 82.1(2) of the Act states that a leave application is not required with respect to a decision of a visa officer on an application under section 9, 10 or 77 "or to any other matter arising thereunder with respect to an application to a visa officer". As the leave application is superfluous, it is dismissed. |
[6] The moving party believes that my decision is ill-founded in light of the Federal Court of Appeal's decision in Sajjan v. Canada [1997] F.C.J. No. 905. In that case, the Federal Court of Appeal indicated that leave was required insofar as the judicial review concerned a decision of the Appeal Division of the Board, and not that of a visa officer, and therefore section 82.1(2) did not apply. However, as section 82.2 of the Act does not provide for any appeal from a judgment of the Trial Division with respect to leave applications, the moving party believes she would have no remedy other than through a motion to reconsider the decision pursuant to Rule 397. But the limitation period provided for such a motion is short and counsel for the moving party submits that he was unable, during those 10 days, to obtain confirmation of the legal aid certificate for which his client had applied.
[7] It is well established that the administrative delays for approval of a certificate at legal aid do not justify an extension of time. The Federal Court of Appeal settled this issue in Espinosa v. M.E.I. (1992), 142 N.R. 158, and the principle set out therein has been applied again and again since that decision. The policy of counsel for the moving party of not accepting to represent anyone without confirmation of the legal aid certificate is understandable, but the effect of such a policy on the extension of time was settled long ago. The motion for an extension of time is accordingly dismissed.
[8] Although it is not necessary to deal with the issue, the Court wishes to indicate that the instant motion does not fall within either of the paragraphs under Rule 397. Counsel for the moving party argues that in making my order dated April 28, 1999, I erred in law in disregarding the Federal Court of Appeal's decision in Sajjan. So be it. In general, the law provides that this type of error is reviewable by the Court of Appeal. However, in this specific situation, the right of appeal is unavailable because of section 82.2 of the Act. Thus, Rule 397 cannot be used to give the moving party a right of appeal which Parliament denied her.
[9] For these reasons, the motion for an extension of time is dismissed and the motion to reconsider which was filed out of time is also dismissed.
ORDER
The motion for an extension of time is dismissed and the motion to reconsider which was filed out of time is also dismissed.
J.D. Denis Pelletier
Judge
Certified true translation
M. Iveson, LL.B.-LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-392-99
STYLE OF CAUSE: CHRISTINA ODURO
v.
MCI
MOTION CONSIDERED ON THE BASIS OF WRITTEN REPRESENTATIONS ON OCTOBER 6, 1999
REASONS FOR ORDER AND ORDER OF THE HONOURABLE J.D. DENIS PELLETIER
DATED OCTOBER 6, 1999
SOLICITORS OF RECORD:
DENIS DE ROME FOR THE MOVING PARTY
MICHEL PÉPIN
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
__________________ 1 77(3) Appeals by Sponsors - Subject to subsections (3.01), (3.02) and (3.1), a Canadian citizen or permanent resident who has sponsored an application for landing that is refused pursuant to subsection (1) may appeal to the Appeal Division on either or both of the following grounds:
(a) on any ground of appeal that involves a question of law or fact, or mixed law and fact; and
(b) on the ground that there exist compassionate or humanitarian considerations that warrant the granting of special relief.
77(3) Appel interjeté par un répondant - S'il est citoyen canadien ou résident permanent, le répondant peut, sous réserve des paragraphes (3.01), (3.02) et (3.1), en appeler devant la section d'appel en invoquant les moyens suivants:
a) question de droit, de fait ou mixte;
b) raisons d'ordre humanitaire justifiant l'octroi d'une mesure spéciale.