Date: 19990330
Docket: IMM-4014-98
BETWEEN:
LATHAROOBY RAJADURAI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
______________________________________________________________________________
Docket: IMM-4402-98
BETWEEN:
ITHAYAROOBY RAJADURAI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
REED, J.:
[1] These reasons relate to both IMM-4014-98 and IMM-4402-98. In both cases counsel for the Minister brought a motion that put in issue the proper interpretation of subsection 82.1(2) of the Immigration Act, R.S.C. 1985, c. I-2. That subsection exempts visa officer decisions from the requirement that leave of the Court1 be obtained before an application for judicial review may be commenced:
82.1 (2) Subsection (1) does not apply 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. [Underlining added.]
82.1(2) Le paragraphe (1) ne s'applique pas aux décisions prises par l'agent des visas dans le cadre des articles 9, 10 ou 77 ni aux questions soulevées par toute demande qui lui est faite dans ce cadre. [C'est moi qui souligne.]
[2] The question in issue is the correct interpretation of the words "a decision of a visa officer" ("aux décisions prises par l'agent des visas") and "any other matter arising thereunder" ("aux questions soulevées par toute demande qui lui est faite dans ce cadre"). This question arises because it is a visa officer who issues or refuses to issue a visa in response to an application filed pursuant to section 9 of the Act, but that issuance or refusal may in some circumstances be based on decisions that have been taken by others. In the present case it is decisions denying admission on humanitarian and compassionate grounds made by the Minister's delegate that are in issue.
[3] The applicants are sisters in Sri Lanka who applied as assisted family class applicants to be admitted as permanent residents. The submissions made on their behalf included the representation that even if they did not obtain sufficient points under the point assessment system to entitle them to become landed immigrants, they should be granted landing on humanitarian and compassionate grounds.
[4] Section 9 of the Act provides:
| 9.(1) Except in such cases as are prescribed, and subject to subsection (1.1.), every immigrant and visitor shall make an application for and obtain a visa before that person appears at a port of entry. |
| (1.1.) A person who makes an application for a visa may apply on behalf of that person and every accompanying dependant. |
| (1.2) A person who makes an application for a visitor's visa shall satisfy a visa officer that the person is not an immigrant. |
| (2) An application for an immigrant's visa shall be assessed by a visa officer for the purpose of determining whether the person making the application and every dependant of that person appear to be persons who may be granted landing. |
| (2.1) An application for a visitor's visa shall be assessed by a visa officer for the purpose of determining whether the person making the application and every accompanying dependant of that person appear to be persons who may be granted entry. |
| (3) Every person shall answer truthfully all questions put to that person by a visa officer and shall produce such documentation as may be required by the visa officer for the purpose of establishing that his admission would not be contrary to this Act or the regulations. |
| (4) Subject to subsection (5), where a visa officer is satisfied that it would not be contrary to this Act or the regulations to grant landing or entry, as the case may be, to a person who has made an application pursuant to subsection (1) and to the person's dependants, the visa officer may issue a visa to that person and to each of that person's accompanying dependants for the purpose of identifying the holder thereof as an immigrant or a visitor, as the case may be, who, in the opinion of the visa officer, meets the requirements of this Act and the regulations. |
| (5) A visa officer may refuse to issue a visa on the grounds that the person who made an application pursuant to subsection (1), or any of the person's dependants, is a member of an inadmissible class described in paragraph 19(1)(k) only with the written approval of the Minister and the Solicitor General of Canada. [Underlining added.] |
[5] Decisions to allow landing on humanitarian and compassionate grounds are made by the Minister or the Minister's delegate pursuant to subsection 114(2) of the Immigration Act and subsection 2.1 of the Immigration Regulations, 1978, SOR/78-172. Those provisions read:
| 114 (2) The Governor in Council may, by regulation, authorize the Minister to exempt any person from any regulation made under subsection (1) or otherwise facilitate the admission of any person where the Minister is satisfied that the person should be exempted from that regulation or that the person's admission should be facilitated owing to the existence of compassionate or humanitarian considerations. |
and
| 2.1 The Minister is hereby authorized to exempt any person from any regulation made under subsection 114(1) of the Act or otherwise facilitate the admission to Canada of any person where the Minister is satisfied that the person should be exempted from that regulation or that the person's admission should be facilitated owing to the existence of compassionate or humanitarian considerations. [Underlining added.] |
[6] If a decision is made by the Minister's delegate that an individual should be granted admission for humanitarian and compassionate reasons, the visa officer is so informed and he or she issues the visa pursuant to s. 9(4).
[7] The refusal letter, dated April 13, 1998, that was sent to Latharooby Rajadurai was signed by Alain Gingras, the visa officer. That letter refused her application both because the applicant had not obtained sufficient points to be considered for landing and because sufficient humanitarian and compassionate grounds had not been found to grant landing. Reference was made in the letter to the fact that the latter decision had been made by the Minister's delegate Charles Godfrey, the Immigration Program Manager.
[8] The refusal letter, dated May 19, 1998, sent to Ithayarooby Rajadurai has two separate parts. The part finding the applicant not eligible for landing because she does not have enough units of assessment is signed by Patrice Nectoux, the interviewing visa officer. The second part, stating that there are insufficient humanitarian and compassionate grounds to grant her landing is signed by Charles Godfrey.
[9] This difference in the format of the two decision letters gives credence to counsel for the applicant's argument that until recently a visa officer's decision to issue or refuse issuance of a visa in response to a section 9 application was considered as one decision whether or not it contained the disposition of a humanitarian and compassionate request. The former practice of treating the decision as a single decision is evident in the Conté decision (infra). Counsel argues that the new approach, treating the response as two decisions, one requiring leave and the other not requiring leave, is a technical, impractical and abstractionist approach.2 The subsection 82.1(2) exemption was added, in part, because the 15 day time limit for the filing of applications was impractical with respect to the decisions of visa officers made abroad.3
[10] Counsel for the respondent cites four cases as supportive of the position she is taking: Sajjan v. Canada (Minister of Citizenship and Immigration) (1997), 39 Imm.L.R. (2d) 56 (F.C.A.), Conté v. Canada (Minister of Citizenship and Immigration) (1995), 116 F.T.R. 161 (F.C.T.D.), Fawaz v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1680, (November 17, 1998), and Cheng v. Canada (Minister of Employment and Immigration) (October 25, 1998), IMM-4313-98 (F.C.T.D.).
[11] Some of these clearly deal with proceedings that are separate from a section 9 application. Sajjan deals with an Immigration Appeal Division decision on an appeal of a visa officer's decision that had been made under subsection 77(1). The Court found that a decision of the Appeal Division was not a decision of a visa officer: "[a] decision made by the Appeal Division is a decision made by a different decision-maker than a visa officer, and hence, does not come within the exception." The Court also held that the decision was not one that fell within the concluding words of s. 82.1(2), as being by reference to s. 77 "any other matter arising thereunder." At the same time, the Court stated that those words must be given some effect and they would clearly apply to:
| situations where a visa officer has failed to decide and an application in the way of mandamus is contemplated. There are other matters related to decisions under those three sections, such as procedural rulings, decisions of visa officers that are not appealable to the Appeal Division, etc. which may be covered by these words as well. [Emphasis added.] |
[12] The Conté case dealt with a decision refusing to grant the applicant a Minister"s Permit to re-enter Canada under section 37 of the Act . It was held that that decision was not exempted from the leave requirement under subsection 82.1(2) since the exemption applied only to decisions under sections 9, 10 and 77. A similar result, with respect to a section 37 application was reached in Ching v. Canada (Minister of Employment and Immigration) (1997), 137 F.T.R. 313.
[13] In the Fawaz case, Mr. Justice Evans dealt with an application to review a decision of the Minister under section 19(1)(f)(iii)(B), which decision held that the admission of the applicant to Canada would not be in the national interest. Mr. Justice Evans found that leave was required before a judicial review proceeding could be commenced. He stated "I am bound to conclude that subsection 81.1.(2) . . . applies only to decisions made by visa officers, and not by the Minister or anyone else, on or in connection with an application under section 9, 10 or 77 of the Act."
[14] In the Cheng case, I have been informed that the facts were virtually identical to those that exist in this case, Mr. Justice Denault held:
| This Court has not been persuaded, at the outset of the proceedings, that the decision of the Programme Manager, made pursuant to sect. 114(2) of the Immigration Act is that of a visa officer contemplated in the exemption to the leave provisions set out in ss. 82.1(2) of the Immigration Act. It must therefore be commenced only with leave of a judge of this Court . . . |
[15] The French text of subsection 82.1(2) is clearer than the English in conveying the idea that it is decisions that the visa officer makes on his or her own, rather than those he or she makes as a conduit for another, that are exempt from the leave requirements set out in subsection 82.1(1). Nevertheless, the applicants' counsel raises a significant issue, particularly given the past practice of the Department and the history of the introduction of subsection 82.1(2) into the legislation. A question of general importance exists and, the respondent having indicated that consent to leave will not be given, it may be dispositive of the applicants' cases.
[16] For the reasons given, the respondent's motions will be granted, and the applications dismissed because leave was not obtained. As I indicated, I would be prepared to certify a question for appeal in this case. Counsel for the respondent has suggested a text and counsel for the applicants indicated consent to the "sense" of the question that has been suggested. That text is:
| Is a decision of a Programme Manager, as the Minister's delegate, made under ss. 114(2) of the Immigration Act of s. 2.1 of the Regulations, determining that there are insufficient humanitarian and compassionate grounds to warrant special consideration which arose from an application for permanent residence outside of Canada, subject to the leave provisions under ss. 82.1(1) of the Immigration Act? |
"B. Reed"
Judge
TORONTO, ONTARIO
March 30, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-4014-98 and IMM-4402-98
| STYLE OF CAUSE: LATHAROOBY RAJADURAI |
- and -
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
- and -
ITHAYAROOBY RAJADURAI
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
DATE OF HEARING: THURSDAY, MARCH 11, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: REED J.
DATED: TUESDAY, MARCH 30, 1999
APPEARANCES: Ms. Barbara Jackman
For the Applicants
Ms. Marissa Bielski
For the Respondent
SOLICITORS OF RECORD: Jackman, Waldman & Associates
Barristers & Solicitors
281 Eglinton Avenue East
Toronto, Ontario
M4P 1L3
For the Applicants
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990330
Docket: IMM-4014-98
Between:
| LATHAROOBY RAJADURAI |
| Applicant |
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Docket: IMM-4402-98
Between:
ITHAYAROOBY RAJADURAI
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
__________________
| 82.1(1) An application for judicial review under the Federal Court Act with respect to any decision or order made, or any matter arising, under this Act or the rules or regulations thereunder may be commenced only with leave of a judge of the Federal Court - Trial Division. | 82.1.(1) La présentation d'une demande de contrôle judiciaire aux termes de la Loi sur la Cour fédérale ne peut, pour ce qui est des décisions ou ordonnances rendues, des mesures prises ou de toute question soulevée dans le cadre de la présente loi ou de ses textes d'application " règlements ou règles " se faire qu'avec l'autorisation d'un juge de la Section de première instance de la Cour fédérale. |
2 The approach also requires two separate applications in accordance with Federal Court Rule 302, unless the Court otherwise provides, even though the letter received by the applicant may carry only one date and the signature of one person, the visa officer.
3 The Minister of Employment and Immigration, Barbara MacDougall, introduced the exemption contained in s.82.1(2)(House of Commons Debates , 3 June 1988 at 16097) in response to the comments and suggested amendments contained in the report of the Standing Senate Committee on Legal and Constitutional Affairs:
The Committe heard from a number of witnesses who pointed out that although the purpose of Bill C-55 is to institute a new refugee process, the Bill would also affect judicial review of some non-refugee immigration matters by the Federal Court. Their concerns arise from the provision in the Bill which would require leave to be obtained for an application commenced under section 18 of the Federal Court Act. Leave would have to be requested within 15 days after the applicant is notified of the decision.
Under the present law, no leave is required and there is no time limit for filing the application for judicial review under section 18. Witnesses pointed out that imposing a time limit would make negotiations with visa officers abroad difficult, if not impossible, and would likely result in a great number of pro forma applications being made solely to preserve the right of applicants to challenge a decision. They also stated that in relation to these kinds of cases there has been no evidence of abuse of any kind and that a provision requiring that leave be sought to commence an application, the effect of which would be to impede access to the courts, was therefore unnecessary. In amendment 9 the Committee recommends removal of these requirements. [Twentieth Report of the Standing Senate Committee on Legal and Constitutional Affairs, 33rd Parliament, 2nd Session, May 11, 1988.]