Date: 20001004
Docket: IMM-3579-00
BETWEEN:
TANG ZHEN ZHEN
Applicant
-and-
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
LAFRENIÈRE P.
[1] On July 7, 2000, the Applicant brought an application for judicial review of the decision of designated visa officer J. Ng dated May 24, 2000 refusing his application for a student authorization and an entry visa to pursue temporary studies in Canada. The Applicant received the letter of refusal from Ms. Ng on June 14, 2000.
[2] In his affidavit in support of the application for judicial review, the Applicant states that he took notes of the interview (presumably before Ms. Ng) and wrote down the questions and his responses immediately thereafter. The Applicant sets out in the body of his affidavit twelve questions posed to him by the interviewer and the answers he provided.
[3] Rather than cross-examine the Applicant on his affidavit or file an affidavit in response, the Respondent moves for an order to strike the Applicant's Notice of Application and to dismiss the application for judicial review on the grounds of mootness. It is not contested that the decision of Ms. Ng was subsequently reconsidered by another visa officer, Ms. Wong, at the request of counsel for the Applicant. Following an interview with the Applicant on June 29, 2000, Ms. Wong rendered a decision refusing his application for temporary entry to Canada as a student. The Respondent maintains that the Applicant has already received the relief requested in his application, in other words, a reconsideration of the decision of Ms. Ng. In view of the reconsideration, the Respondent says that there are no grounds for judicial intervention.
[4] The Applicant responds by asserting that the actual decision being contested is that of Ms. Wong and not Ms. Ng. He acknowledges that errors were made in drafting the application and affidavit in support, but says that these are simply technical in nature. The Applicant therefore seeks leave to amend the application and to file a supplementary affidavit to correct the name of the decision-maker and the date of the decision.
[5] With respect to the Respondent's motion, I am not satisfied that this is an exceptional case in which the originating notice should be struck. Judicial reviews are meant to be summary in nature. The proper course of action is to raise such issues at the hearing rather than bring an interlocutory motion. Such was the conclusion of Nadon, J. in Assn. Of Canadian Distillers v. Canada (Minister of Health)1 where he states:
| In my view, the respondent should have simply filed its application record and then argued before a Trial Judge why the originating notice of motion should be denied. |
[6] As for the Applicant's cross-motion, I have difficulty accepting that the admitted mistakes are technical in nature and that they can be cured by amendment of the Notice of Application and by filing a supplementary affidavit. In my view, the proposed amendments would fundamentally change the focus of the application. In his affidavit, the Applicant clearly and unambiguously refers to a refusal letter from J. Ng dated May 24, 2000 which he received on May 24, 2000. He continues by stating that he "took notes of the interview shortly after its occurrence". The affiant was at best careless in signing a misleading affidavit.
[7] As presently worded, the Applicant's affidavit cannot be corrected merely by substituting the name of the interviewer and the date of the decision. I observe that the Respondent has brought motions to strike in seven other proceedings before the Court: (IMM-3577-00, IMM-3572-00, IMM-3576-00, IMM-3575-00, IMM-3571-00, IMM-3574-00 and IMM-3578-00). The facts in those applications are strikingly similar to those in the present case. In fact, the affidavits of the Applicants in all eight proceedings are identical, word for word, in describing the interview allegedly conducted by the visa officer. I have serious concerns regarding the credibility of these Applicants who appear to have blindly signed a document prepared by a third person. The Applicant has instituted an application which he acknowledges is flawed. If he intends to proceed with his application, he will have to do so based on the record submitted. Leave to amend is denied.
[8] The Respondent has requested as alternative relief an extension of time to serve and file responding affidavit material. In the circumstances, it would be in the interest of justice to grant the extension requested.
[9] For the reasons stated above, the parties' respective motions in IMM-3577-00, IMM-3572-00, IMM-3576-00, IMM-3575-00, IMM-3571-00, IMM-3574-00 and IMM-3578-00 shall be disposed of in a similar manner.
ORDER
[10] The Respondent's motion to strike the Notice of Application and to dismiss the application for judicial review is dismissed, without prejudice to raising similar objections at the hearing of the application.
[11] The Applicant's motion for leave to file a supplementary affidavit and to amend the Notice of Application is dismissed.
[12] The Respondent is granted and extension of time to November 6, 2000 to serve and file the Respondent's affidavit(s).
[13] The time for taking subsequent steps in the proceeding is extended accordingly.
"Roger R. Lafrenière"
Prothonotary
Toronto, Ontario
October 4, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-3579-00 |
| STYLE OF CAUSE: TANG ZHEN ZHEN |
| - and - |
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
CONSIDERED AT TORONTO, ONTARIO PURSUANT TO RULE 369
REASONS FOR ORDER
| AND ORDER BY: LAFRENIÈRE P. |
| DATED: WEDNESDAY, OCTOBER 4, 2000 |
WRITTEN SUBMISSIONS BY: Mr. Cecil L. Rotenberg, Q.C.
For the Applicant
Mr. David Tyndale
For the Respondent
SOLICITORS OF RECORD: Cecil L. Rotenberg, Q.C.
Barrister & Solicitor
255 Duncan Mill Road
Suite 808
Don Mills, Ontario
M3B 3H9
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20001004
Docket: IMM-3579-00
Between:
| TANG ZHEN ZHEN |
| - and - |
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
| REASONS FOR ORDER |
AND ORDER
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