Date: 19980515
Docket: A-916-97
C O R A M: STRAYER J.A.
LINDEN J.A.
ROBERTSON J.A.
B E T W E E N:
MIRANDA WAI CHU YUEN
MANDY MAN YEE CHAN
ROXANNA NAM WAH CHAN and
MING YIN CHAN
By Their Ligigation Guardian
MIRANDA WAI CHU YUEN
Appellants
" and "
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Appeal dealt with in writing at Ottawa, Ontario, on Friday, May 15, 1998
JUDGMENT delivered at Ottawa, Ontario, on Friday, May 15, 1998
REASONS FOR JUDGMENT BY: STRAYER J.A.
CONCURRED IN BY: LINDEN J.A.
ROBERTSON J.A.
Date: 19980515
Docket: A-916-97
C O R A M: STRAYER J.A.
LINDEN J.A.
ROBERTSON J.A.
B E T W E E N:
MIRANDA WAI CHU YUEN
MANDY MAN YEE CHAN
ROXANNA NAM WAH CHAN and
MING YIN CHAN
By Their Ligigation Guardian
MIRANDA WAI CHU YUEN
Appellants
" and "
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
STRAYER J.A.
[1] On April 1, 1998 the appellants were required by order to show cause why their appeal should not be quashed for lack of jurisdiction in this Court. The parties have now made submissions.
[2] The appellants seek to appeal a decision of the Trial Division of November 26, 1997 in which the learned judge refused to quash a decision of a visa officer and refused to certify that there was a serious question of general importance so as to permit an appeal to this Court pursuant to subsection 83(1) of the Immigration Act.
[3] This appeal must be quashed for want of jurisdiction. Section 83 provides as follows:
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83.(1) A judgment of the Federal Court-Trial Division on an application for judicial review with respect to any decision or order made, or any matter arising, under this Act or the rules or regulations thereunder may be appealed to the Federal Court of Appeal only if the Federal Court-Trial Division has at the time of rendering judgment certified that a serious question of general importance is involved and has stated that question. |
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(2) Where a judgment of the Federal Court-Trial Division is appealed to the Federal Court of Appeal pursuant to subsection (1), the appeal shall be commenced by filing a notice of appeal within fifteen days after the pronouncement of the judgment. |
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(3) A judge of the Federal Court-Trial Division may, for special reasons, extend the time referred to in subsection (2) for filing a notice of appeal. |
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(4) For greater certainty, a refusal of the Federal Court-Trial Division to certify that a serious question of general importance is involved in any matter is not subject to appeal. |
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The appellants contend that because by virtue of subsection 82.1(2) no leave to apply for judicial review is required in respect of judicial review of the decisions of visa officers, such judicial review is also excluded from the limitations in section 83 on the ability to appeal decisions of the Trial Division. There is no support in the language of the Immigration Act for this view.
[4] On the normal meaning of the language of section 83 it covers judicial review of a decision of a visa officer because that is a "decision . . . made . . . under this Act . . . ." Further, it is apparent from the language of section 82.1 that such decisions were thought to be covered by the identical terminology of subsection 82.1(1) which makes the requirement of leave to apply for judicial review also to apply to any "decision . . . made . . . under this Act . . ." For this reason it was obviously thought necessary to put an exception in subsection (2) as follows:
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82.1(2) Subsection (1) does not apply with respect to a decision of a visa officer on an application under section 9, 10, or 77 or to any other matter arising thereunder with respect to an application to a visa officer. |
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An exception to subsection (1) would not be necessary unless that subsection covered visa decisions, using as it does the same language as subsection 83(1). There is nothing to suggest that the exception in subsection 82.1(2) applies to any requirement other than the requirement of obtaining leave to apply for judicial review.
[5] Therefore, as the limitations on appeals imposed by section 83 clearly apply to judicial review of the decision of a visa officer, and as the learned motions judge declined to certify a question, this Court cannot entertain this appeal. Further, by subsection 83(4) there can be no appeal from a refusal to certify.
[6] The appellants question the constitutionality of the limits on appeals as prescribed in section 83. This issue has already been considered by this Court in cases such as Huynh 1 from which leave to appeal has been refused by the Supreme Court, and which has since been applied by us in cases such as Baker.2 Those cases indicate means of raising constitutional issues other than by the appeal process. But the effect of these decisions is that there is no general constitutional guarantee of a right of appeal where a matter has been considered and determined by a court at first instance.
[7] The appeal is therefore quashed.
"B.L. Strayer"
J.A.
I agree
"A.M. Linden"
I agree
"J.T. Robertson"
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1 [1996] 2 F.C. 976 (C.A.).
2 [1997] 2 F.C.127 at 135.
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