Date: 20090731
Docket: IMM-666-08
Citation: 2009 FC 753
OTTAWA, Ontario, July 31, 2009
PRESENT: The Honourable Louis S. Tannenbaum
BETWEEN:
SANDRA
MARIA DE SOUSA
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
On
October 20, 2008, the undersigned rendered the following order in the present
matter:
“THIS COURT ORDERS AND ADJUDGES that this
application for judicial review is granted and the decision of the immigration
officer dated January 23, 2008 is annulled and set aside for all legal
purposes. The matter is referred back to the respondent so that the application
for permanent residence be processed from within Canada, taking into consideration the
conclusion of the undersigned respecting the best interests of the child Amy.”
[2]
The
respondent now seeks by way of a motion in virtue of section 397(1) and (2) of
the Federal Courts Rules, the following order:
“37. The Respondent also requests that
the Reasons for Order and Order be reconsidered in accordance with the
submissions made herein. In the alternative, the Respondent requests to be
given an opportunity to make submissions on a certified question so that the
matter may be considered by the Federal Court of Appeal.”
[3]
The
submissions referred to are the following:
“34. The Respondent submits that this
Honourable Court overlooked the fact that it does not have the jurisdiction to
make a positive decision on an H & C application where the evidence is not
so conclusive as to allow for only one conclusion, and that its Order is
inconsistent with both the jurisprudence on the applicability of directed
verdicts in cases of Ministerial discretion, and the jurisprudence on how it is
the Minister alone who is authorized to weigh the different factors before
determining whether the requirement to hold a permanent residence visa can be
waived.
35. For all the above reasons, the
Respondent respectfully submits that the Reasons for Order and Order should be
reconsidered.”
[4]
It
is further submitted by the Respondent that in the event that the motion for
reconsideration is denied, the Court should certify the following question,
namely:
“Does the Federal Court have jurisdiction
under s. 18.1(3)(b) of the Federal Courts Act to approve an H&C
application made under s. 25(1) of IRPA, or to direct the Minister to
exercise his discretion favourably and approve an H&C application made
under s. 25(1) of IRPA?
On a motion for reconsideration under
Rule 397 of the Federal Courts Rules, can a Judge of the Federal Court
certify a question of general importance pursuant to s. 74(d) of IRPA
when the proposed question relates to an issue that was invisible to the
parties prior to the issuance of the Reasons for Judgment and Judgment?”
[5]
The
applicant’s position is that the Federal Court, in virtue of s. 18.1(3) of the Federal
Courts Act, has the jurisdiction to issue a directed verdict if the
circumstances warrant it. The applicant made the following submissions, inter
alia:
“The Respondent does not dispute that a
Federal Court judge normally has the authority under s. 18.1(3) to issue a
directed verdict. A judge’s order can contain directions that are “so specific
that they will compel the federal board, tribunal or commission to reach a
specific conclusion,” and can, in fact, simply direct the decision maker to
grant an application, “in effect, substituting its decision” for that of the
first-instance decision maker. While the Court itself cannot directly give
effect to these instructions, since it must always return the matter to the
decision maker for a pro forma reconsideration, it can by issuing a
directed verdict “accomplish indirectly what it is not authorized to do
directly.”
[6]
The
undersigned decided to issue a directed verdict since, according to
uncontradicted evidence, a young child would have been devastated by either being
separated from her mother or by having to move to Brazil.
[7]
Having
reconsidered all of the submissions, I have concluded that I went too far by
ordering the respondent to process the application for permanent residence from
within Canada.
[8]
The
jurisdiction of this Court in virtue of subsection 18.1(3) of the Federal
Courts Act does not permit “orders” to the Minister in matters of
ministerial discretion, but only appropriate directions.
[9]
I
have accordingly decided to reconsider my order of October 20, 2008 in
accordance with the order contained in the present judgment.
[10]
There
is no reason for certification of the question as requested in the motion.
[11]
For
the above reasons the motion for reconsideration is granted without costs, in
accordance with the following order.
ORDER
IT IS ORDERED THAT this application for
judicial review is allowed and the decision of the Immigration Officer dated
January 23, 2008, that is under review, is set aside. The applicant’s application
for landing from within Canada on humanitarian and compassionate grounds
is referred back to the Respondent for reconsideration by a different Officer.
On that reconsideration, the Officer is directed to give special consideration
to the best interests of the applicant’s child and to be guided by the evidence
referred to in paragraphs 22, 23 and 25 of my reasons herein dated
October 20, 2008.
“Louis S. Tannenbaum”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-666-08
STYLE OF CAUSE: Sandra
Maria De Sousa v. MCI
PLACE OF
HEARING: Toronto, Ontario
DATE OF
HEARING: May
25, 2009
REASONS FOR JUDGMENT: TANNENBAUM
D.J.
DATED: July
31, 2009
APPEARANCES:
|
Ms. Hilary
Evans Cameron
|
FOR THE APPLICANT
|
|
Mr. Gregory
George
Ms. Ada Mok
|
FOR THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
Downtown Legal
Services
Toronto, Ontario
|
FOR THE APPLICANT
|
|
John H. Sims,
Q.C”
Deputy
Attorney General of Canada
|
FOR THE RESPONDENT
|
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