Date: 20021217
Docket: IMM-5288-01
Neutral citation: 2002 FCT 1311
BETWEEN:
KI PO FUNG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
DAWSON J.
[1] Mr. Fung is an applicant for permanent residence in Canada in the investor category. He brings this application for judicial review of the decision of a foreign service officer at the Consulate General of Canada in Hong Kong not to transfer Mr. Fung's file from that visa post to the Consulate General of Canada located in New York City.
BACKGROUND
[2] Mr. Fung is a citizen of Hong Kong who at all material times was a lawful visitor to Canada. In November of 1999, he applied to the Hong Kong visa post for permanent residence in Canada pursuant to the Province of Quebec Immigration Regulations and Guidelines. In December of 2000, Mr. Fung received his Quebec Selection Certificate. After that, on August 7, 2001, the Hong Kong visa post wrote to Mr. Fung requesting further information, which was provided under cover of a letter dated August 14, 2001 from Mr. Fung's counsel. On September 5, 2001, Mr. Fung's counsel wrote to the visa post requesting that the post acknowledge receipt of the August 14, 2001 letter. No response was received to that letter and on October 10, 2001, Mr. Fung's counsel requested that Mr. Fung's file be transferred from the Hong Kong visa office to the New York visa office.
[3] By letter dated October 23, 2001, Mr. Fung was notified that his request was denied.
THE DECISION OF THE FOREIGN SERVICE OFFICER
[4] The October 23, 2001 letter from the foreign service officer denying the request simply states that "I have reviewed your request and do not find sufficiently persuasive reasons for this transfer". In an affidavit sworn in opposition to this application, the foreign service officer stated that once the request was received she reviewed Mr. Fung's file and then weighed his request "against program integrity in deciding whether to transfer the file". The foreign service officer further swore that no explanation was provided for the request, and that:
From a review of the Applicant's file, I noted that the Applicant is resident in Hong Kong, that his past businesses were located in mainland China and Hong Kong and that his present business is located in Hong Kong. I also considered the fact that Hong Kong is a Business Immigration Centre (New York is not) and has the local expertise to perform a statutory assessment of a Hong Kong based applicant. Further, the Applicant's English and French language abilities were listed as "not at all" on his application form; as such, it can be presumed that he would require Chinese language interpretation at interview and Hong Kong regularly provides this service to our applicants. As a result, I did not find sufficiently persuasive reasons for transferring his file.
[5] The foreign service officer was not cross-examined on this evidence.
THE ISSUES
[6] Mr. Fung raises one issue with respect to this decision: did the foreign service officer make a reviewable error in refusing to approve the transfer of his application from the Hong Kong office to the New York office? The respondent raises a further issue: is this a decision which can properly be the subject of an application for judicial review pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, on the ground that as a matter of law there is, in the absence of special circumstances, no immediate judicial review of an interlocutory decision.
ANALYSIS
[7] After hearing counsel, and reviewing their submissions, I conclude that this application should be dismissed on the ground that it is premature.
[8] The jurisprudence of this Court is consistent that interlocutory, procedural rulings generally ought not to be the subject of judicial review. In Szczecka v. Minister of Employment and Immigration (1993), 170 N.R. 58 (F.C.A.) Mr. Justice Létourneau, writing for the Court of Appeal, said at paragraph 4:
[...] unless there are special circumstances there should not be any appeal or immediate judicial review of an interlocutory judgment. Similarly, there will not be any basis for judicial review, specially immediate review, when at the end of the proceedings some other appropriate remedy exists. These rules have been applied in several court decisions specifically in order to avoid breaking up cases and the resulting delays and expenses, which interfere with the sound administration of justice and ultimately bring it into disrepute. [...] In the case of judicial review under s. 28 of the Federal Court Act, which is the case now before the court, the interpretation of that section by the court is even more strict. [underlining added]
[9] Thus, in the absence of exceptional circumstances, this Court will not intervene on judicial review to set aside an interlocutory decision.
[10] As to what constitutes exceptional or special circumstances, in Pfeiffer v. Canada (Superintendent of Bankruptcy), [1996] 3 F.C. 584 (T.D.) Madam Justice Tremblay-Lamer found special reasons to exist because the issue raised on judicial review involved "an attack on the very existence of the tribunal". [At p. 596] In Novopharm Ltd. v. Aktiebolaget Astra, [1996] 2 F.C. 839 (T.D.) Mr. Justice Gibson found no special circumstances to exist because an adequate, alternative remedy existed.
[11] Turning to the facts before me, I am satisfied that the decision in this case is interlocutory in nature because the decision whether to transfer the file did not dispose of the substantive issue raised on the application for permanent residence. For the following reasons, I have not been persuaded that special reasons exist which would justify the Court's intervention at this time.
[12] First, Mr. Fung has sworn to no hardship to be caused if he is required to travel to Hong Kong to be interviewed. Mr. Fung simply avers that "it would be convenient for me as principal applicant to be interviewed in New York City" and that the "Hong Kong visa office would not be inconvenienced were it to transfer my file". Second, an adequate, alternative remedy exists in that if Mr. Fung's application for permanent residence is refused, he will be able to include in the application for judicial review of that decision the foreign service officer's decision denying the request to transfer the file. This was the procedure followed in both Voskanova v. Canada (Minister of Citizenship and Immigration) (1999), 167 F.T.R. 258 (T.D.) and Chen v. Canada (Minister of Citizenship and Immigration) (1999), 166 F.T.R. 78 (T.D.).
[13] While Mr. Fung argued that special reasons exist as a result of the delay of the Hong Kong visa post and its failure to respond to correspondence, even if delay could give rise to special reasons there is insufficient delay in the present case to justify the Court's intervention at this time.
[14] The respondent seeks the costs of this application on the ground that special circumstances are said to exist because a written offer to settle was made by the respondent in April of this year, after the records were filed, which was initially accepted by Mr. Fung and then rejected.
[15] Assuming, without deciding, that it is necessary for me to be satisfied that special circumstances exist, I am satisfied that the unaccepted settlement offer is a special circumstance, and that the respondent is entitled to an award of costs in respect of services performed since the making of the offer. It is preferable that those costs be fixed. In the exercise of my discretion, considering the amount of the time required to be expended in order to prepare and attend at the hearing of this matter, and the relative simplicity of the issues, I fix those costs in the amount of $500.00.
[16] Counsel for the applicant may serve and file any submissions on certification of a question within 14 days of receipt of these reasons, and thereafter counsel for the respondent may serve and file responsive submissions within 14 days. Following that, counsel for the applicant may serve and file any reply submissions within 5 days of service of the respondent's submissions upon counsel for the applicant.
[17] Following consideration of those submissions an order will issue dismissing the application for judicial review.
"Eleanor R. Dawson"
Judge
Ottawa, Ontario
December 17, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-5288-01
STYLE OF CAUSE: Ki Po Fung v. Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 19, 2002
REASONS FOR ORDER
OF THE HONOURABLE MADAM JUSTICE DAWSON
DATED: December 17, 2002
APPEARANCES:
Mr. Irwin H. Sherman FOR THE APPLICANT
Ms. Patricia MacPhee FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Irwin H. Sherman FOR THE APPLICANT
Don Mills, Ontario
Mr. Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
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