Date: 20000718
Docket: A-403-00
OTTAWA, ONTARIO, THIS 18TH DAY OF JULY, 2000.
EVANS J.A.
MALONE J.A.
BETWEEN:
VLADIMIR DOTSENKO
Applicant
- and -
The MINISTER of CITIZENSHIP
and IMMIGRATION
Respondent
REASONS FOR ORDER
EVANS J.A.
[1] This is a motion filed by the Deputy Attorney General of Canada on behalf of the Minister of Citizenship and Immigration pursuant to Rule 369 of the Federal Court Rules, 1998 to strike out the notice of appeal filed on behalf of the appellant. The motion was filed pursuant to a show cause order of this Court dated June 22, 2000.
[2] The appellant"s notice of appeal was in respect of a decision of the Trial Division, dated May 31, 2000, dismissing an application for judicial review of a decision requiring the appellant to attend for a visa interview at the Canadian Consulate in Buffalo, New York. In her reasons for judgment the learned application judge said that, despite a request by counsel for the applicant, she was of the opinion that there was no serious question of general importance to be certified under subsection 83(1) of the Immigration Act R.S.C. 1985, c. I-2 and accordingly refused to state a question.
[3] As is well known, this subsection provides that a judgment of the Trial Division on an application for judicial review with respect to a decision made under the Immigration Act may be appealed to the Federal Court of Appeal only if the Federal Court - Trial Division, at the time that it rendered judgment, has certified that a question of general importance is involved and has stated the question.
[4] The words of the subsection would seem quite clear. Accordingly, it has been held that appeals in cases described by subsection 83(1) are governed by it and not by section 27 of the Federal Court Act R.S.C. 1985 c. F-7. Further, to the extent that there is a conflict between the general appeal provision in section 27 of the Federal Court Act and the specific provision of subsection 83(1) of the Immigration Act for immigration appeals, the latter displaces the former by virtue of subsection 84(2) of the Immigration Act. See Balaga v. Canada (Minister of Citizenship and Immigration) (1995), 187 N.R. 315, 316 (F.C.A.).
[5] Nonetheless, counsel for the appellant submitted that, since the appellant wished to appeal on the ground that the Judge made findings of fact that were not supported by the evidence in the record before her, he was not in position to formulate the question that he wanted certified until after the reasons for judgment were rendered. Moreover, since the Judge"s error did not concern the interpretation or application of the Immigration Act, this case is not within the mischief at which subsection 83(1) was aimed. Were it otherwise, he contended, a litigant would be left with no redress against egregious factual errors or other improprieties committed by Trial Division judges when disposing of applications for judicial review of decisions made under the Immigration Act. Such a draconian intent should not be imputed to Parliament.
[6] In my opinion, counsel"s argument has no merit in view of the clear wording of subsection 83(1). In order to reduce the volume of appeals to this Court, and the consequent delays in the enforcement of the Immigration Act , Parliament has decided that there shall be no appeal in a case where the grounds of appeal have no significance beyond that case. Inevitably, this means that a litigant whose application for judicial review is dismissed as a result of the judge"s misapprehension of the facts has no legal remedy.
[7] Accordingly, even if the Judge in this case had circulated her reasons in draft to the parties prior to the pronouncement of judgement in written form, and invited them to make submissions on a certified question, she would have been bound not to certify a question that concerned only her findings of fact. I should say, however, that on the basis of the materials before me I was not persuaded that the Judge had committed any error at all.
[8] Counsel referred to Panchoo v. Canada (Minister of Citizenship and Immigration) (2000), 3 Imm. L.R. (3d) 206 (F.C.A.), where (at paragraph 3) a judge doubted whether subsection 83(1) precluded an appeal to this Court from a refusal by the Trial Division to grant a stay pending perfection and consideration of an application for leave to apply for judicial review. However, since the basis of the doubt expressed in that case was that the application for a stay arose under the Federal Court Act, and not the Immigration Act, it has no relevance here.
[9] It remains only to observe that the constitutionality of the restrictions on the right of appeal imposed by subsection 83(1) has been upheld in Chu v. Canada (Minister of Citizenship and Immigration) (1996), F.T.R. 68 (F.C.T.D.).
[10] For these reasons, the motion will be granted and the appellant"s notice of appeal struck, but without costs.
"John M. Evans"
J.A.
"I agree
Robert Décary J.A."
"I agree
Brian Malone J.A."
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