Siddiqui v. Canada (Minister of Citizenship and Immigration), docket IMM-1030-97

     Date: 19990917

     Docket: IMM-1030-97

B E T W E E N :

     FARHEEN A SIDDIQUI

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR JUDGMENT

     (Rendered from the Bench at Toronto, Ontario,

     Tuesday, May 26, 1998)

HUGESSEN J.

     [1]      The applicant seeks the review of the decision of the Appeal Division of the Immigration and Refugee Board which quashed for want of jurisdiction an appeal to that Board against a decision of a Visa officer which refused a visa to the applicant's brother as the dependant child of the applicant's parents who had been sponsored by the applicant. The basis of that quashing was the decision of the Court of Appeal in the earlier case of Bailon¹ and also a later decision of the Court of Appeal in the case of Lidder².

     [2]      At the hearing of the application for judicial review, counsel for the applicant originally took three points but the first and third were later abandoned. The first point was that the decision with respect to jurisdiction was wrong. That was, as I say, abandoned. The third point was that there had been some kind of breach of fairness by estoppel arising from the letter written to the applicant telling her that she had the right to be represented by counsel of her choice and that such counsel could be either a lawyer, a family member or a friend. That too was abandoned.

     [3]      One point only remains and that is, that there had been a breach of the rules of fairness because of the incompetence of the applicant's representative at the hearing of the motion to quash before the Board. That submission is based on a single decision of a judge of this Division in the case of Shirwa³.

     [4]      I may say at the outset that I have considerable doubt as to the applicability of the case of ShIrwa on a general basis. It was a very exceptional case and the degree of professional incompetence manifested by the lawyer representing the claimant in that case gave rise to considerable and wholly justified adverse comments on the part of the presiding judge. There is authority that goes the other way; there is a judgment of a single judge of the Court of Appeal, Mahoney J.A., in a brief speaking order issued by him in the case of Paterno⁴ and a decision of Rothstein J. in the case of Huynh⁵.

     [5]      However, I do not find it necessary to reach the issue as to whether there can be a degree of incompetence in the representation by counsel which would be so high as to give rise to a breach of fairness on the part of the relevant adjudicative body. In my view, however, when the representation by the applicant's counsel before the Board in this case is reviewed, and I note that the applicant's counsel was in fact her husband and was clearly, on a reading of the transcript, quite capable of expressing himself and of understanding what was being said, that representation was, I say, not by any means of such a level of incompetence as to require intervention.

     [6]      Indeed, in my view, the representation of the applicant by her husband was in fact about as much as she could have hoped for. The case for the Minister on the motion to quash was one that was virtually unanswerable given the text of the Act and this Court's jurisprudence. The best hope that the applicant had of persuading the Board otherwise was to convince the Board, if he could, that the son whose application for landing had been refused was in fact a dependant son and that the refusal had been misconceived or made under the wrong paragraph of the applicable regulation. Indeed, without disrespect to counsel who appeared for the applicant on this application, some part of his argument before this Court today was along much of those same lines. In my view, that was really the only counsel that could be followed even though it might perhaps be characterized as a counsel of desperation.

     [7]      Finally, I simply note that counsel for the respondent also relies on a recent decision of the Court of Appeal⁶ in which that Court held that, even where there has been a breach of the rules of natural justice or fairness, that will not necessarily give rise to a reference back to the Tribunal for a new hearing where the outcome of such hearing is a foregone conclusion. That basically is the case here. As I said at the beginning of these reasons the result of the judgment of the Court of Appeal is that, in law, the Appeal Division was without jurisdiction to entertain the applicant's appeal and that the Minister's motion to quash had to be allowed.

     [8]      Accordingly, I propose to enter an order dismissing the application but before doing so, I would invite counsel to make submissions, if any, on whether or not there is a question of general importance raised in this file.

     "James K. Hugessen"

     judge

¹      Bailon v. M.E.I. (June 16, 1986), (F.C.A.) A-783-85 [unreported]

²      Lidder v. Canada (1992), 16 Imm L.R. (2d) 241

³      Shirwa v. Canada (M.E.I.), [1994] 2 F.C. 51

⁴      Paterno v. M.E.I. (June 23, 1992), (F.C.A.) 92-A-1770 [unreported]

⁵      Huynh v. M.E.I. (1993), 21 Imm L.R. (2d) 18

⁶      Yassine v. Minister of Employment and Immigration, [1994] 172 N.R. 308 (Stone, Linden, McDonald, JJ.A)