Docket: IMM-2831-17
Citation:
2017 FC 1086
[ENGLISH TRANSLATION]
Montréal, Quebec, November 30, 2017
PRESENT: The
Honourable Mr. Justice Martineau
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BETWEEN:
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SYEDA NOOR
FATIMA
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
The applicant is contesting a decision made on
May 11, 2017, by the Immigration Appeal Division [IAD] of the Immigration and
Refugee Board refusing to allow her appeal of an exclusion order.
[2]
The legality of the exclusion order—which was
issued due to failure of the residency obligation under subsection 44(2) of the
Immigration and Refugee Protection Act, SC 2001, c. 27 [IRPA]—is not in
question today. In this case, the IAD found that the humanitarian and
compassionate considerations cited by the applicant do not justify taking
special measures within the meaning of paragraph 67(1)(c) of the IRPA.
[3]
At the opening of the hearing on November 29,
2017, the applicant’s counsel of record, Ms. Meryam Haddad, brought forth a
motion for leave to cease representing her party, as the bond of trust with the
applicant had been broken. The withdrawal request made in Ms. Haddad’s letter
dated November 27, 2017, and her motion record were served on the applicant and
counsel for the respondent, Ms. Isabelle Brochu, on November 27, 2017. The
applicant did not show up to the hearing on November 29, 2017. No opposition to
the withdrawal request and no application to postpone the hearing were made by
the applicant or on her behalf. Given the serious nature of the withdrawal
request and the respondent’s lack of opposition, the Court allowed Ms. Haddad
to withdraw from the case. After that, the Court heard the oral submissions by
counsel for the respondent, who asked for the summary dismissal of this application
for judicial review.
[4]
This application for judicial review cannot
succeed.
[5]
First, no affidavit establishing the facts
reported in support of her application for judicial review was filed by the
applicant in accordance with subsection 10(2) of the Federal Courts
Citizenship, Immigration and Refugee Protection Rules, SOR/93-22. The
affidavit dated July 27, 2017, from a lawyer who works at the former law firm
that represented the applicant is insufficient. Since the application for leave
was granted by the Court on September 14, 2017, no motion has been brought
forth by the applicant or her former counsel to replace the lawyer’s defective
affidavit with an affidavit by the applicant. This is a fatal flaw (see for
example Metodieva v Canada (Minister of Employment and Immigration)
(1991), 132 NR 38, 28 ACWS (3d) 326 (FCA); Dhillon v Canada (Citizenship and
Immigration), 2009 FC 614 at paras 4–10; and case law cited in those
decisions). The Court therefore has no other alternative than to summarily
dismiss this application for judicial review.
[6]
Second, although it is not necessary to review
the merits of the application for judicial review, it should be stated here
that the applicant essentially disagrees with how the IAD analyzed the evidence
on record and weighed the various relevant factors. I concur with the
respondent that the applicant’s written submissions dated July 27, 2017, simply
repeat the arguments that were already raised before the IAD, and essentially
encourage the Court to substitute its opinion for that of the administrative
decision-maker. However, it is not up to this Court to re-assess the evidence
on record. On the other hand, I am satisfied that the IAD was guided by the
relevant factors in exercising its discretionary power. The IAD had full
discretion to determine the weight of those factors, given the special
circumstances of the case. As part of an in-depth analysis, the IAD considered
the favourable and unfavourable factors. It also provided detailed and
intelligible reasons. Dismissing the appeal was therefore one of the possible
and acceptable outcomes.
[7]
For these reasons, the application for judicial
review is dismissed. No questions of law of general importance are raised in
this case.
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