Date: 20071128
Docket: IMM-5343-06
Citation: 2007
FC 1249
Ottawa, Ontario, November 28,
2007
PRESENT: The Honourable Madam Justice Simpson
BETWEEN:
THI
THIET TRAN
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
Minister of Citizenship and Immigration (the Minister) has moved pursuant to
Federal Court Rule 397 for a reconsideration in writing of my Judgment and
Direction of July 31, 2007 (the Motion). It read as follows:
UPON noting that no questions were posed for
certification pursuant to section 74 of the Immigration and Refugee Protection
Act, S.C. 2001, c. 27 and for the reasons given above;
THIS COURT ORDERS THAT the application for judicial
review is allowed and the H&C Application is to be re-determined by a
different immigration officer who is hereby directed to grant the H&C
Application.
[2]
The
purpose of the reconsideration is to have Court certify the following question
(the Proposed Question):
Does subsection 18.1(3)(b) of the Federal
Courts Act permit a judge to direct an officer to grant an application made
pursuant to s. 24 of the Immigration and Refugee Protection Act asking
the Minister to grant an exception on humanitarian and compassionate grounds
from the statutory requirement in s. 11(1) of IRPA that otherwise
requires foreign nationals to apply for a permanent resident status from
outside Canada?
[3]
The
Minister relies on the Federal Court of Appeal’s decision in Huynh v. Canada (Minister of Citizenship and
Immigration),
[1996] 2 F.C. 976 (C.A.). At paragraph 23, the Court held that former Federal
Court Rule 1733 could be used to vary a judgment or order to add a new
certified question of general importance. The Court said that such new questions
could arise if a Judge decided a case on a point that was not argued or based
his decision on his interpretation of a higher Court decision which was not the
subject of submissions.
[4]
Former
Rule 1733 read as follows:
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1733.
A party entitled to maintain an action for the reversal or variation of a
judgment or order upon the ground of matter arising subsequent to the making
thereof or subsequently discovered, or to impeach a judgment or order on the
ground of fraud, may make an application in the action or other proceeding in
which such judgment or order was delivered or made for the relief claimed.
|
1733.
Une partie qui a droit de demander en justice l’annulation ou la modification
d’un jugement ou d’une ordonnance en s’appuyant sur des faits survenus
postérieurement à ce jugement ou à cette ordonnance ou qui ont été découverts
par la suite, ou qui a droit d’attaquer un jugement ou une ordonnance pour
fraude, peut le faire, sans intenter d’action, par simple demande à cet effet
dans l’action ou autre procédure dans laquelle a été rendu ce jugement ou cette
ordonnance.
|
[5]
Rule 1733 clearly did
allow the variation of a judgment on the basis of a new matter or one subsequently
discovered and the Federal Court of Appeal concluded that this could include a
certified question.
[6]
The difficulty is
that Rule 397(1), which is the only rule relied on for the order sought, does
not, in my view, cover new matters. It reads as follows:
|
397. (1) Within 10 days after the making of
an order, or within such other time as the Court
may allow, a party may serve and file a notice
of motion to request that the Court, as
constituted at the time the order was made,
reconsider its terms on the ground that
(a) the order does not accord with any
reasons given for it; or
(b) a matter that should have been dealt
with
has been overlooked or
accidentally omitted.
|
397. (1) Dans
les 10 jours après qu’une
ordonnance a été
rendue ou dans tout autre
délai accordé par la
Cour, une partie peut
signifier et déposer
un avis de requête
demandant à la Cour
qui a rendu
l’ordonnance, telle
qu’elle était constituée à
ce moment, d’en
examiner de nouveau les
termes, mais
seulement pour l’une ou
l’autre des raisons
suivantes :
a) l’ordonnance
ne concorde pas avec les
motifs qui, le cas
échéant, ont été donnés
pour la justifier;
b) une
question qui aurait dû être traitée a
été
oubliée ou omise involontairement.
|
[7]
Instead of dealing
with new matters, this rule looks backwards to reasons and orders already
issued to ensure that they accord with one another. It also looks at matters
that should have been dealt with (presumably because they were before the
Court) but were overlooked or omitted. I am therefore unable to conclude that
the Court of Appeal’s decision in Huynh has any bearing on this motion.
[8]
In my view, Rule
397(1) does not permit the Minister to move to add a question for certification
to a judgment.
[9]
This conclusion
disposes of the motion but, it might be helpful to consider as well whether the
Proposed Question is one of general importance which I would have certified.
[10]
To show that the
Proposed Question is one of general importance, the Minister suggested that the
law is not settled on the question of whether a judge can direct the outcome
when a matter is referred back after judicial review. On this issue, the
Minister relies on a statement made in obiter by the Federal Court of
Appeal in Lazareva v. Canada (Minister of Citizenship and
Immigration), 2005 FCA
181. In that case, the Trial Judge directed the Minister to allow the applicant
to apply for landing from within Canada and refused to certify a question on a
motion under Rule 397 about whether such a direction was within his
jurisdiction.
[11]
The Court of Appeal
concluded that, without a certified question, it was not entitled to entertain
the Minister’s appeal. The Court also said the following at paragraph 6 of its
decision:
The
Minister may well be correct when he says that the judge did not have the
authority to grant the ancillary relief he granted. But for paragraph 74(d) of
the Immigration and Refugee Protection Act, it is more than likely that this
appeal would succeed. However, it would not be appropriate to express a final
opinion on the merits of the Minister’s submissions because, even if they are
well founded, there is no certified question.
[12]
However, this was a
statement by the Court of Appeal in obiter and it does not appear that
the Court of Appeal was referred to in its earlier decision on the point.
[13]
The Court of Appeal
has clearly said that the Federal Court can issue directions under paragraph
18.1(3)(b) of the Federal Courts Act which are in the nature of a directed
verdict. In this regard, see the Federal Court of Appeal’s decision in Turanskaya
v. Canada (Minister of Citizenship and
Immigration) (1997), 145
D.L.R. (4th) 259 and the discussion of this topic in Marsh v. Canada (Royal Canadian Mounted Police), 2006 FC 1466.
[14]
In my view, this case
is one in which the uncontested evidence on the record is so conclusive that
there is only one possible conclusion if the terms humanitarian and
compassionate are to be given any meaning. Accordingly in the circumstances of
this case, the law is settled and I would not have certified the Proposed
Question.
ORDER
THIS COURT ORDERS that the Motion is hereby dismissed.
“Sandra
J. Simpson”
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