Date: 20080318
Docket: IMM-1797-07
Citation: 2008 FC 360
Ottawa, Ontario, March 18,
2008
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
ZAHRA MOAZENI
MAHYAR YOUSEFI
KAMYAR
YOUSEFI
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The applicants seek judicial review of the decision of a visa officer
dated February 15, 2007, wherein Zahra Moazeni’s two sons - Mahyar and Kamyar
Yousefi - were found not to be “dependent children” as contemplated by section
2 of the Immigration and Refugee Protection Regulations.
[2]
This decision was based on the visa officer’s finding that the boys had
not been continuously enrolled in, and attending, post-secondary educational
institutions after they completed high school. As a result, the two boys were
removed from Zahra Moazeni’s application for permanent residence.
[3]
Approximately six weeks after receiving the February 15 decision, the
applicants’ counsel wrote to the Canadian embassy in Syria providing, amongst
other things, additional information regarding the boys’ educational history.
Counsel asked that the boys be included in Ms. Moazeni’s application for
permanent residence.
[4]
A second decision was then rendered in relation to this issue on May 23,
2007. This decision affirmed the original decision, but provided additional
reasons for the finding that the boys were not “dependent children” within the
meaning of the Regulations. No application for judicial review has been
brought with respect to the May 23 decision.
[5]
Although the issue was not initially raised by the parties, the Court
invited the parties to make submissions as to whether the application for
judicial review of the February 15 decision is moot, in light of the May 23
decision. In this regard, the parties were specifically asked to address the
decision of the Federal Court of Appeal in Vidéotron Télécom Ltée v.
Communications, Energy and Paperworkers Union of Canada, [2005] F.C.J. No.
398.
[6]
Having considered the parties’ submissions in this regard, this Court is
of the view that the application for judicial review must be dismissed as moot.
Analysis
[7]
In Vidéotron, the Federal Court of Appeal made it clear that
where a decision has been rendered, which decision is subsequently reconsidered
and affirmed, the losing party must seek judicial review of both decisions, and
cannot simply seek judicial review of the first decision.
[8]
As the Federal Court of Appeal observed, the two decisions are
distinct. Even though the second decision affirms the result in the first
decision, “it nevertheless replaces the other for the purposes of judicial
review”: Vidéotron at ¶12. As a consequence, the second decision must be
challenged directly, and cannot be collaterally attacked through the first
application for judicial review.
[9]
The applicants argue that Vidéotron is distinguishable, in that
there is no express statutory power in this case for a visa officer to
reconsider a decision once it has been made.
[10]
Be that as it may, the principles articulated by the Federal Court of
Appeal in Vidéotron are equally applicable here. Indeed, a review of
the facts in this case discloses that no practical purpose can be served by
this application for judicial review. Even if the Court were to accept the
applicants’ argument that the visa officer erred in her interpretation of the Regulations,
and quashed the February 15, 2007 decision on that basis, the May 23 decision
would still stand.
[11]
Moreover, the findings of fact made by the second officer as to the
inadequacy of the evidence with respect to the boys’ attendance at school in
the period after they each reached 22 years of age have not been impugned, and
are sufficient, by themselves, to disqualify the boys.
[12]
I do not accept the applicants’ argument that the principle of functus
officio should operate so as to nullify the May decision, leaving the
February 15 decision as the only lawful decision: see Park v. Canada
(Minister of Citizenship and Immigration), [2001] F.C.J. No. 848.
[13]
Moreover, having sought and obtained reconsideration of the February
decision, it ill behooves the applicants to now criticize the Embassy staff for
doing precisely what the applicants asked them to do.
[14]
More fundamentally, however, the functus argument and the
procedural fairness argument advanced by the applicants with respect to the May
decision are collateral attacks on that decision. Having failed to challenge
the May 23 decision by way of an application for judicial review, the second
decision must be taken as final.
Conclusion
[15]
For these reasons, the application for judicial review is dismissed.
The applicants have proposed a number of questions for certification. In my
view, the law in this area is well-settled, and as a result, no question will
be certified.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1. This
application for judicial review is dismissed; and
2. No
serious question of general importance is certified.
“Anne
Mactavish”
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