Date: 20101004
Docket: IMM-6213-09
Citation: 2010 FC 973
[UNREVISED CERTIFIED
TRANSLATION]
Ottawa, Ontario, October
4, 2010
PRESENT: The
Honourable Mr. Justice Pinard
BETWEEN:
Sotheary
HUOT
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR
ORDER AND ORDER
[1]
This
is an application under subsection 72(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27, (the Act) for judicial review of a
decision by a visa officer at the High Commission of Canada to Singapore, rejecting
the application by the applicant’s son for permanent residence in the family
class. In addition, the officer did not find any humanitarian or compassionate
considerations that would justify granting an exemption.
[2]
The
applicant is a Cambodian citizen. She came to Canada in 2004 and
claimed refugee status. Her claim was accepted, and she became a permanent
resident on November 30, 2006. She sponsored the two children of her
Cambodian marriage, born in 1998 and 2000.
[3]
Viasna Chan
is the applicant’s son, born out of wedlock in 1991. He lived with his
grandmother from the age of three months to 2006, when she came to Canada, sponsored
by the applicant’s sister (a fact that the applicant was unaware of at the time).
Viasna Chan has been living with his uncle since 2006.
[4]
When
the applicant came to Canada, she declared her two children as dependants,
but she never mentioned Viasna Chan. The grandmother tried to sponsor
Viasna Chan in 2007, but the application was denied.
[5]
According
to the applicant, she happened to meet the grandmother in Montréal in 2007, and
as a result of that meeting, she began speaking with Viasna Chan by
telephone. She wanted to have him come to Canada to live with
her. She filed an application to sponsor and undertaking under the family class
towards the end of 2007. At the same time, Viasna Chan submitted an
application for permanent residence to the High Commissioner to Singapore based on
humanitarian and compassionate considerations.
[6]
The
visa officer in Singapore considered the two applications together. He
rejected both of them on August 18, 2009. A letter was sent to the
applicant telling her that she had the right to appeal the decision refusing
the application for permanent residence to the Immigration Appeal Division
(IAD). The letter stated that, if the IAD determined that Viasna Chan
could not immigrate under the family class heading, it could not consider
humanitarian and compassionate grounds, and the appeal would be dismissed.
[7]
The
applicant filed a notice of appeal but withdrew it on December 7, 2009.
She filed the application for judicial review on December 8 together with
a application for an extension of time on the ground that she pursued the
appeal to the IAD as a result of bad advice from her counsel at the time.
[8]
The
immigration officer found that Viasna Chan was not a member of the family
class and that there were no humanitarian and compassionate considerations that
would justify granting him permanent residence.
[9]
The
officer rejected the sponsorship application because, under 117(9)(d) of
the Immigration and Refugee Protection Regulations, SOR/2002-227, a
person cannot be a member of the family class if he or she was not mentioned in
the foreign national’s application for residence.
[10] With respect
to humanitarian and compassionate considerations, the officer found that the
circumstances did not warrant an exemption. The officer determined that the
mother probably abandoned Viasna Chan when he was a baby because he was
illegitimate and because he was disabled in that he could only see with one
eye. He found that the applicant knowingly omitted to mention Viasna Chan
when she came to Canada, that Viasna Chan was leading a normal
life in Cambodia and that he
had friends and a good school. He concluded that there had been no
communication between Viasna Chan and the applicant since she left Cambodia in 2004. He
stated that he had considered the best interests of the child but found no
undeserved hardship for Viasna Chan.
* * * * * * *
*
[11] The record
shows that the “Application for Leave and Judicial Review” included an application
for an extension of time under paragraph 72(2)(c) of the Act. The order
granting leave to submit the application for judicial review in this case is
completely silent on this preliminary application for an extension of time. At
the hearing before me, in the circumstances, I invited counsel for the parties
to make oral representations strictly on the preliminary issue of the application
for an extension of time because if the extension was going to be refused, this
would necessarily result in the dismissal of the application for judicial
review itself. Moreover, I stated that if an extension of time was going to be
granted, another date would be set for the hearing of the application for
judicial review.
[12] I agree with
counsel for the respondent that the fact that leave was granted to file the
application for judicial review, in this case, is not determinative of the
extension of time issue because the order for leave is silent on this point. It
is sufficient to refer to the relatively recent decision of the Federal Court
of Appeal in Deng Estate v. Canada (Public Safety and
Emergency Preparedness), 2009 FCA 59. In that case, the Federal Court
of Appeal stated the following:
[12] Counsel for the appellant relies upon the decision of this
Court in Subhaschandran v. Canada, [2005] 3 F.C.R. 255 where Sexton J.A.
found that the adjournment of a stay motion to a time when the stay matter
would be moot amounted to a constructive refusal to exercise jurisdiction which
called for a remedy in the nature of mandamus. He submits that Pinard J., in
the present instance, refused to exercise his jurisdiction..
[13] I disagree with this submission. Pinard J. did exercise a
jurisdiction when he dealt with the motion for an extension of time and denied
it. He also exercised his jurisdiction when he dismissed the application for
judicial review.
[14] In the alternative, counsel for the appellant contended
that Pinard J. had no jurisdiction to review the decision of the motions judge
and deny the leave application that the motions judge had granted. According to
counsel, Pinard J. had no power to review the merits of the decision rendered
by another judge of coordinate jurisdiction. Counsel refers us to the decision
of our Court in Bubla v. Solicitor General, [1995] 2 F.C. 680, at page
692.
[15] With respect, I do not think that this is what Pinard J.
did in the present instance. The order of the motions judge was silent on the
issue of the extension of time. The order contained no conclusion either
granting or denying an extension. Pinard J. made a finding of fact that the
matter had been overlooked by the motions judge. That finding is not
unreasonable in the circumstances. The memorandum of fact and law of the
appellant and that of the respondent, while dealing in their arguments with the
extension of time, contained in the part relating to the Order sought no demand
regarding an extension of time. That may explain the oversight: for another
example of an omission to consider the request for an extension of time, see Nayyar
v. Canada (Minister of Citizenship and Immigration) (2007), 62 Imm.
L.R. (3d) 78.
[16] The appellant submits that it should be inferred from the granting
of the leave, by the motions judge, to commence the application for judicial
review that the motions judge also granted an extension of time. A similar
situation occurred in Canada (Minister of Human Resources
Development) v. Eason (2005), 286 F.T.R. 14 (F.C.) where Tremblay-Lamer J. refused to
draw that kind of inference. I agree with the following assertion that she
makes at paragraph 20 of her reasons for judgment:
[20] However,
as stated above, the member was silent on the issue of extension of time. The
respondent suggests that as leave to appeal cannot be granted unless an
extension of time is also granted, it can be inferred from the member’s
decision to grant leave that she also granted an extension of time. I disagree.
While Mr. Eason did apply for the extension of time and for leave, it cannot
automatically be inferred that the member turned her mind to the issue of
extension of time simply because she granted leave. The granting of an
extension of time must be explicitly considered by the decision maker.
[17] Since the motion for an extension of time had not been
dealt with by the motions judge, Pinard J. had jurisdiction to decide the issue.
[18] In dismissing the motion for an extension of time, Pinard
J. disposed, by the same occasion, of the application for judicial review
because that application had no valid legal existence unless duly authorized by
a judge to be commenced after the expiry of the limitation period. To put it
differently, the dismissal of the application for judicial review was a
necessary corollary and consequence of the refusal to extend the time limit.
[13] Thus,
considering the applicant’s application for an extension of time, I am
satisfied, after hearing counsel for the parties and reviewing the evidence in
the record, that the criteria required to obtain a similar extension have been
properly met.
[14] The applicant
must satisfy the Court (a) that she had a continuing intention to pursue
her application for judicial review; (b) that the application for judicial
review deserves consideration; (c) that there is a reasonable explanation
for the delay; and (d) that an extension of time will not prejudice the
respondent.
[15] The
explanations provided by the applicant in paragraphs 33 to 40 of her affidavit
dated December 8, 2009, leave no doubt as to her intention to pursue her
application for judicial review and, in my view, constitute a reasonable
explanation for the delay:
a.
I received
a negative decision with regards to my sponsorship in August 2009;
b.
I went to seek
advice from my legal counsel who told me that the only recourse I had was to
file an appeal to the IRB, joined hereto as Exhibit ‘B’ of my affidavit;
c.
The
Immigration Appeal Board sent me a letter, dated November 16th
2009, joined hereto as Exhibit ‘C’ of my affidavit;
d.
In this
letter, it is written that my appeal will be denied if my son is not considered
a member of the family class;
e.
I decided
to seek another legal opinion and that is how I met Me Annick Legault who
saw me in her office on 2nd December 2009;
f.
I was told
that I should present a federal court application but that the delay to
instigate this relief was passed;
g.
Nevertheless,
I chose to go forward and present my file before the Federal Court;
[16] As to whether
the application for judicial review deserves consideration, the applicant’s
primary argument that the decision-maker based his decision on conjectures
rather than on the facts put in evidence does not appear to me to be frivolous or
clearly bound to fail. In addition, on this point, consideration must be given
to the fact that the application for leave to submit the application for
judicial review was granted in this case.
[17] Last, I do
not see how an extension of time could prejudice the respondent, who, moreover,
has not complained of any prejudice.
[18] In the
specific circumstances of this case, I am therefore of the view that the
interests of justice will be better served if an extension of time is granted.
[19] Accordingly,
the application for an extension of time is granted, and the application for
judicial review will be heard on a date to be determined by the Judicial Administrator
of this Court.
[20] The parties
have indicated that there is no question to be certified in this case.
ORDER
The
application for an extension of time is granted. The application for judicial
review of the decision rendered on August 18, 2009, by a visa officer at
the High Commissioner of Canada to Singapore will be heard at a date to be determined by the Judicial Administrator of
this Court.
“Yvon
Pinard”
Certified true translation
Mary Jo Egan, LLB
Email this Content