Bcherrawy v. Canada (Minister of Citizenship and Immigration), 2003 FC 1427

Date: 20031205

Docket: IMM-2190-02

Citation: 2003 FC 1427

Ottawa, Ontario, the 5th day of December, 2003

Present: THE HONOURABLE MR. JUSTICE NOËL

BETWEEN:

GRACE BCHERRAWY

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

AMENDED REASONS FOR JUDGMENT AND JUDGMENT

[1]        This is an application for judicial review pursuant to Rule 18.1 of the Federal Court Rules, 1998 from the decision by Lise Gignac, Director, Investigations and Removals Division, Citizenship and Immigration Canada, of the Montréal Centre ("CIC"), dated April 26, 2002, denying the applicant's application for non-execution of the performance bond in the amount of $60,000 which she signed in the case of Alphonse Chemali, her husband. Following a change by the respondent, claiming not $60,000 but $120,000, in a letter dated April 29, 2003, this application became a motion to amend asking that the letter of April 26, 2002, be cancelled and replaced by that of April 29, 2003. Further, the latter raised several points of law.

STATEMENT OF FACTS

[2]        The applicant, who was born in Lebanon in 1971, obtained landing in Canada in 1996 and has since become a Canadian citizen. On December 2, 1999, in Montréal, she married Alphonse Chemali, a Lebanese citizen born in 1943. He was also a citizen of the U.S.

[3]        On October 10, 2000, Mr. Chemali obtained a waiver of the application of subsection 9(1) of the Immigration Act, R.S.C. 1985, c. I-2 (hereinafter "the Act") with respect to an application for permanent residence, and from March 1 to September 1, 2001, Mr. Chemali had the status of a visitor in Canada.

[4]        On September 6, 2001, a report was prepared on Mr. Chemali pursuant to section 27 of the Act. An arrest warrant was issued against him by the Ministry of Justice of Lebanon on account of a decision made against Mr. Chemali ex parte for crimes of forgery, breach of trust and embezzlement.

[5]        On September 18, 2001, the Department of Citizenship and Immigration Canada issued an arrest warrant against Mr. Chemali. He was arrested in Verdun, in the province of Quebec, on September 24, 2001.

[6]        On September 27, 2001, an adjudicator ordered that Mr. Chemali be released subject to certain conditions, including that the applicant, as she was solvent, file a performance bond of $120,000 with the Receiver General for Canada, and this was done. This bond, signed on October 1, 2001, included certain supplementary conditions that had to be observed by her husband.

[7]        On November 7, 2001, when the inquiry concerning Mr. Chemali continued, the adjudicator varied the order of September 27, 2001, inter alia by reducing the amount of the bond required from the applicant to $60,000. The new bond, with the alterations, was not signed by the applicant. Additionally, at the hearing the possibility of removal to the U.S. was discussed and the Minister's representative, Ms. Charbonneau, appeared to support the adjudicator's comments in the following exchange:

[TRANSLATION]

Adjudicator:                          At the same time, we know the border is 30 minutes away, and if he goes to the border on the Canadian side with his deportation order, confirms his departure, the removal order is carried out.

Ms. Charbonneau:               Certainly . . .

[8]        On November 15, 2001, Mr. Chemali personally received a summons from an Immigration officer to present himself at Dorval Airport for his departure from Canada for Lebanon, scheduled for November 30, 2001.

[9]        By an order of the Federal Court of Canada the application to stay the deportation order was denied on November 30, 2001.

[10]      On November 30, 2001, Mr. Chemali did not go to the airport: instead, he left Canada for the U.S. by his own means. He had written a letter to the CIC, dated November 30, 2001, but having the Canada Post stamp for December 4, 2001, stating the following:

[TRANSLATION]

Re:          Confirmation of departure

File:         4229-4833

Dear Sir/Madam:

                This is to confirm that I have carried out my departure for the U.S. as required in the decision by the adjudicator Mr. LADOUCEUR on November 7, 2001.

In witness whereof I have signed.

Alphonse CHEMALI

[11]      On or about December 13, 2001, the applicant received a formal request from CIC to pay the Receiver General for Canada $60,000, since her husband had not complied with certain conditions for his release, including the fact that he did not present himself at Dorval Airport on November 30, 2001, to carry out his departure.

[12]      On December 14, 2001, counsel for the applicant wrote CIC indicating that Mr. Chemali had in fact carried out his departure in accordance with the directions given by the adjudicator. On December 17, 2001, the applicant in turn wrote the CIC and stated that her husband had not confirmed his departure for the U.S. with the respondent because the latter wanted him to leave for Lebanon, not the U.S., and his U.S. passport was accordingly retained:

[TRANSLATION]

My husband did not confirm his departure with your authorities at the border in view of the bias demonstrated by IMMIGRATION CANADA against him - because at our meeting of November 7 and 15, 2001, in your offices you refused to give him his U.S. passport so he could leave for the U.S., despite the decision by the adjudicator Ladouceur that "he is a citizen of that country . . . he can easily carry out his removal to the U.S." (November 7).

At around noon on Friday he left the house, telling me he was going to carry out his removal, and he had already mailed a letter to IMMIGRATION CANADA and to his lawyer, without giving me any other explanation.

[13]      On January 1, 2002, Mr. Chemali died in the U.S. from a heart attack.

[14]      After several letters were exchanged, the Director of CIC Investigations and Removals replied to counsel for the applicant on April 26, 2002, that the performance bond of $60,000 was still payable and that CIC's position remained unchanged. The letter from the Director, Lise Gignac, which is the decision currently under judicial review, reads as follows:

[TRANSLATION]

Dear Mr. Montbriand:

                This is in reply to your letter of April 2, 2002, to Carole Lamarre of CIC Inland Services regarding the implementation of a performance bond in the name of Alphonse Chemali.

                The order imposing conditions signed by the adjudicator on November 7, 2001, indicated [TRANSLATION] "amendment of order of September 27, 2001". Accordingly, the performance bond in question is that of October 1, 2001, prepared and signed in connection with the order imposing conditions signed by the adjudicator Rolland Ladouceur on September 27, 2001.

                Mr. Chemali left Canada for the U.S. on November 30, 2001. He was not permitted to leave Canada voluntarily and he did not comply with the conditions imposed with respect to his performance bond.

                Our recommendation that the performance bond be implemented remains unchanged.

Yours truly,

Lise Gignac

Director

[15]      After the hearing of March 19, 2003, the applicant asked the Court in a letter dated March 26, 2003, for leave to file a written pleading regarding [TRANSLATION] "the alleged inadequacy of the reasons given by the decision-maker (Lise Gignac)" in the letter dated April 26, 2002. Counsel for the applicant objected and the undersigned denied the leave requested.

[16]      At the close of the hearing on March 19, 2003, the Court allowed the parties to file the following documents, by April 30, 2003, at the latest:

            -           a reply by the applicant to the respondent's new arguments;

            -           the transcript of the continuance of the investigation involving Alphonse Chemali by the adjudicator Rolland Ladouceur of the Adjudication Division of the Immigration and Refugee Board, dated November 7, 2001;

            -           if necessary, the parties could suggest one or more questions for certification.

[17]      On April 30, 2003, the Court was informed by a motion from the respondent that a new decision had been made dated April 29, 2003, and been sent to the applicant. The letter, signed by Ms. Gignac's replacement, reads as follows:

[TRANSLATION]

Dear Madam:

This is further to the letters to you from this Department on December 11, 2001 and April 26, 2002, regarding the performance bond signed by you on October 1, 2001, in favour of Her Majesty the Queen in right of Canada to ensure compliance with the conditions imposed on release of your husband Alphonse Chemali.

In reviewing our file in this regard we realized that the amount we were claiming from you in our letter of December 11, 2001, should have been $120,000, not $60,000, for the following reasons.

On September 27, 2001, an adjudicator directed that your husband be released on certain conditions, including that you yourself, as you were solvent, deposit a performance bond for the Receiver General for Canada in the amount of $120,000.

On the same day, as you had a net worth of $177,000, you obtained your husband's release, signing the bond requested for $120,000.

In addition to the requirement of this undertaking, the conditions for this release, implementation of which you guaranteed, were the following: (1) that your husband present himself at the Complexe Guy-Favreau in Montréal at 9:00 a.m. on November 7, 2001, or at some other place, date and time, as requested by the Adjudication Division, for his investigation to be held and any continuance thereof; (2) that he present himself at any place, date and time, if requested to do so by an Immigration officer, to arrange for his departure and removal from Canada; (3) that he inform an Immigration officer forthwith of the address where he was going to reside and subsequently report in person any change in address to the Canada Immigration Centre closest to his residence before the address changed; (4) that he submit his Lebanese passport; (5) that he remain not less than 10 km from the Canada-U.S. border.

On November 7, 2001, after completing his investigation, the said adjudicator concluded that your husband was a person covered by subparagraph 19(1)(c.1)(I) of the Immigration Act, R.S.C. 1985, c. I-2 (as amended), then in effect (hereinafter "the Act"), and ordered that he be deported from Canada pursuant to subsection 32(6) idem. At that investigation your husband presented no defence to the allegations made against him of bank fraud in Lebanon totalling a little over U.S.$4.7 million. Further, the aforesaid removal order has not been set aside by a Superior Court.

On November 7, 2001, the adjudicator further reduced the amount of the bond required from you by half, [TRANSLATION] "provided . . . [you] suppl[y] a bond of $60,000". In addition to that bond the conditions imposed for releasing your husband were the following: (1) that he present himself, at any place, date or time, if required to do so by an Immigration officer, to arrange for his departure and removal from Canada; (2) that he inform an Immigration officer forthwith of the address where he was going to reside and subsequently report in person to the Canada Immigration Centre closest to his residence any change of address before the address changed; (3) that he submit his Lebanese passport; (4) that if he departed from Canada he confirm this with Immigration Canada before leaving. Apart from the reduction in the amount of the bond, only the last condition was new compared with the aforementioned order of September 27, 2001.

However, you signed nothing to guarantee implementation of this new condition. You did not undertake to pay the $60,000 as required by the adjudicator. Your husband nevertheless continued at liberty.

On November 15, 2001, he personally received a summons from an Immigration officer to present himself at Dorval Airport for his departure from Canada for Lebanon, scheduled for November 30, 2001, but he did not appear on that date.

The fact that you did not sign the suggested bond of $60,000 to replace that of October 1, 2001, does not cancel the latter, which stipulated that you should guarantee that Mr. Chemali would present himself, if requested to do so by an Immigration officer, at any place, date and time, to arrange for his departure and removal from Canada, and this was not done. Your undertaking regarding observance of this condition further indicated that your bond did not cease to apply when your husband's investigation concluded on November 7, 2001.

In the circumstances, the mere fact that he did not present himself at the airport as requested on November 30, 2001, to carry out his departure from Canada suffices to make you indebted to Her Majesty in the amount of $120,000 in capital, not $60,000 as mentioned in the letter we wrote to you on December 11, 2001. At that time we were wrongly of the opinion that as the adjudicator had reduced the amount of the bond to $60,000 your undertaking was limited to that amount.

Your arguments that you owe nothing to Her Majesty are incorrect for the following reasons.

You cannot be exempted from performing your obligations based on what is stated in section 6, Withdrawals, Refunds and Forfeitures, of Chapter EC8, Cash Deposits and Performance Bonds, of the Immigration Manual - Enforcement and Control of this Department, in effect at the relevant time, since those directions cannot apply in the case of a departure for a country not authorized by the Minister of Citizenship and Immigration.

Under subsection 52(1) of the Act, the Minister has the discretion to decide whether your husband could legally leave Canada for the U.S., but his decision in that regard was a negative one, since he required your husband to present himself at Dorval for his departure for Lebanon. The choice of that country was entirely legal, since paragraphs 52(2)(c) and (d) of the Act authorizes the Minister to deport your husband to the country of which he was a national or citizen or to the country of his birth.

In any case, the choice of the country of destination of an alien who is subject to a deportation order must always be approved by the Minister.

Further, a person such as your husband, who was being sought by the law enforcement authorities in his country, could not be authorized to leave Canada before the compulsory execution of the deportation order made against him and could not choose his country of destination. When the alien in question is a citizen of more than one country, as was the case with your husband in 2001, Canada can legally deport him to the country where he is sought by the law enforcement authorities unless he can show that there are good reasons for believing that he risks torture on return to that country, and this was not the case with your husband according to the decision by the Federal Court regarding him on November 30, 2001, a decision on his motion for a stay of the aforesaid deportation order (Court file No. IMM-5421-01).

In any case, the choice of Lebanon by the Minister as your husband's country of destination has never been set aside by a court.

Further, when a person subject to a deportation order leaves Canada voluntarily, without being authorized to do so by the Minister, the deportation order is deemed not to have been carried out.

Additionally, assuming that the remarks by the adjudicator and the Minister's representative at the investigation concerning your husband on November 7, 2001, indicated that he could legally carry out the deportation order made concerning him by leaving for the U.S. himself, those comments were made subject to your husband informing this Department of his departure before leaving Canada, which by your own admission in the letter you sent us on December 17, 2001, he did not do.

In any case, the adjudicator had no jurisdiction to authorize your husband to select his country of destination and you cannot legally rely against the Minister on the statements of one of his representatives which may have been contrary to the applicable law. At all events, eight days later, on November 15, 2001, your husband received a summons, as has been stated, to his departure at Dorval on November 30, 2001. On November 15, 2001, he had still not left Canada, and it was then quite clear that the Minister had not authorized him to leave for the U.S. by himself.

Of course, under section 104 of the Act your husband's failure to comply with a condition of his release does not automatically authorize the Minister to realize on your bond.

However, in the circumstances, including those set out in your letters to the Department on December 17, 2001, February 11, 2002, April 3, 2002, and May 14, 2002, we see no legal or humanitarian grounds for waiving the payment of the aforesaid amount of $120,000.

As regards the death of your husband in 2002, we have never received from you a certified copy of the original of any document certifying that event, so we cannot be certain of this. In any case, even assuming that your husband died and that he left you nothing, and that you are not the beneficiary of any insurance policy on his life, these facts could not constitute mitigating circumstances of a humanitarian nature since when you signed the bond you had a net worth of $177,000, that is, $57,000 more than the amount of your bond.

In Canada v. Zhang, [2001] 4 F.C.173 (T.D., at 186) the Federal Court noted that "the theory behind the requirement for . . . a performance bond is that the person posting the bond . . . will be sufficiently at risk to take an interest in seeing that the release complies with the conditions of release including appearing for removal". Even if you did not have a financial obligation in this regard, which is denied, you have not established that you really did everything you could to urge your husband to leave for Lebanon rather than for the U.S.

For these reasons, you now owe the Canadian government the sum of $120,000, in addition to interest amounting to $3,751.43 as of March 31, 2003, on the $60,000 claimed in the letter we wrote you on December 11, 2001.

Your certified cheque, postal money order or bank money order made out to the Receiver General for Canada and having the number of the aforementioned file should be sent to the following address:

Citizenship and Immigration Canada

Accounting

300 Slater Street

Jean Edmonds Tower North, 4th Floor

Ottawa, Ontario K1A 1L1

Please return a copy of this letter with your payment.

If you still consider that the performance bond should not be paid or if you do not agree with the total amount claimed, please send us your comments in this regard within 30 days of receipt hereof.

Please return a copy of this letter with your comments, if applicable.

On expiry of the aforesaid thirty-day period, unless there is a favourable written decision by us releasing you from your undertaking, you will still owe the Canadian government the aforesaid amount of $120,000 and the aforementioned interest.

René D'Aoust

Director

CIC Montréal, Investigations and Removals

1010 ouest, rue St-Antoine, 2^e étage

Montréal, Quebec H3C 1B2

c.c. your counsel, Jean-Michel Montbriand, by fax this date

Compared to the letter from Ms. Gignac on April 26, 2002, that from René D'Aoust was in exhaustive detail and the amount claimed was no longer $60,000, but $120,000.

[18]      Consequently, on April 30, 2003, counsel for the respondent asked by motion pursuant to Rule 369 of the Federal Court Rules that the Court:

            -           declare the letter from Lise Gignac on April 26, 2002, void in view of the letter from René D'Aoust on April 29, 2003;

            -           stay this proceeding regarding the application for judicial review until August 14, 2003, to allow the respondent to communicate his final decision (which was done on that date);

            -           direct the applicant to discontinue her application for judicial review if the new decision was completely favourable to her;

            -           allow the applicant to file, in Court file IMM-2190-02, an amended application for leave and judicial review against the Minister's new decision dated April 29, 2003, within 15 days of being informed thereof;

            -           direct that if such an application is filed the proceeding shall follow the usual course of applications for leave and judicial review.

[19]      The book of authorities in support of the respondent's motion dated April 30, 2003, was filed on May 6, 2003, and the applicant responded to the arguments by written submissions, adding that recognition of the amount of $60,000 had been admitted [TRANSLATION] "on humanitarian grounds", rather than $120,000, as the amount of the security in the pleading of counsel for the respondent on March 19, 2003. A series of new motions was served and filed by counsel for the respondents:

            -           on May 16, 2003, the respondent's motion record for leave to file affidavits in support of the motion filed on April 30, 2003, in accordance with Rule 369(3) of the Federal Court Rules;

            -           on May 19, 2003, a motion for leave to retract an admission by counsel for the respondent, pursuant to Rule 369 of the Federal Court Rules;

            -           replies and filing of affidavits by the applicant to the various arguments and motions made by the respondent;

            -           replies by the respondent to the applicant's written argument.

[20]      In view of the new direction taken by the case, and in accordance with Rule 369(4) of the Court Rules, the undersigned convened a hearing for May 20, 2003. At the close of the hearing it was agreed that the respondent had until May 23, 2003, to file the book of authorities. The applicant would have until June 6, 2003, to respond to the new arguments. This deadline was extended by the Court to June 17, 2003, at the request of counsel for the applicant, and with the respondent's consent.

[21]       On June 5, 2003, the respondent gave the applicant an extension of time to June 20, 2003, to respond to Mr. D'Aoust's letter dated April 29, 2003.

[22]       The applicant subsequently argued her point of view about the contents of Mr. D'Aoust's letter dated April 29, 2003.

[23]       In a 13-page letter, dated August 14, 2003, Mr. D'Aoust responded to the applicant's objections, setting out the reasons why the Department's claim in the amount of $120,000, in principal and interest, was upheld.

[24]       On August 29, 2003, the applicant filed and served an application for leave and judicial review of the aforementioned decision dated August 14, 2003. The Court's file concerning these applications bears docket number IMM-6732-03.

[25]      Due to the changes in the respondent's decisions, no longer claiming $60,000 as security but $120,000, and providing exhaustive reasons for the said decision, and consequently asking that Lise Gignac's letter of April 26, 2002, be declared void, this case raises new questions of law both at this stage and at the time of any judgment disposing of the matter as a whole.

QUESTION AT THIS STAGE OF THE PROCEEDING

[26]      However, the preliminary question that must be answered is whether René D'Aoust signed the letter of August 29, 2003, when he was functus officio as to exercise of the discretion conferred by section 104 of the Act, since Lise Gignac had signed a decision on the same matter in her letter of April 26, 2002.

ANALYSIS

[27]      Section 104 of the Act, which is the legal basis for both the letters of April 26, 2002 and April 29, 2003, reads as follows:

104.         Where a person fails to comply with any of the terms or conditions imposed under paragraph 103(3)(c) or with any of the terms or conditions subject to which he is released from detention under any provision of this Act

                (a)           any security deposit that may have been made either pursuant to paragraph 103(3)(c) or as a condition of the person's release may be declared forfeited by the Minister, or

                (b)           the terms of any performance bond that may have been posted may be enforced

                and, where the person has been released from detention, he may be retaken into custody forthwith and held in detention.

[28]      The kind of decision under review is one of the decisions taken daily by public servants acting for and on behalf of the Minister. It does not correspond to decisions in the form of orders made by courts of law, or even by administrative tribunals.

[29]      Such everyday decisions do not have the same formality as those of the courts and their implementation requires a certain flexibility. As a case develops it may be that the circumstances change and consequently the decisions have to be amended, or changed completely.

[30]      Although there is no provision for a power of review, I note that Parliament has not made this kind of decision subject to any system of appeal. Additionally, I note the use by Parliament of the verb "may" in section 104 of the Act, which implies a discretion, a choice and the possibility of reviewing the decision if the circumstances warrant. To say the contrary would be to make the government structure subject to an immobility which would defeat the objectives of government. Accordingly, the administrator may change his mind, and that is what appears to have happened in the case at bar. Thus, when René D'Aoust replaced Lise Gignac on April 29, 2003, he was not functus officio.

[31]      Having said that, I must note that there cannot be two administrative decisions differing in content on the same matter from the same official decision-maker. I have been asked to conclude that the decision of April 26, 2002, was void. It goes without saying that the decision of April 29, 2003, cancels the decision of April 26, 2002. The writer took the trouble to refer to it, contradict certain parts of it and to provide exhaustive reasons.

[32]      For the purposes of these reasons and of the costs to be awarded, it is important to note that the undersigned considers that the brief decision of April 26, 2002, did not provide sufficient information about the reasons justifying the request for payment of the $60,000 bond or about the exercise of the discretion mentioned in section 104 of the Act and Chapter EC8 of the Enforcement Manual.

[33]      I adopt the comments of my colleague Dawson J. in Gayle v. Canada (M.C.I.), [2002] F.C.T. 335, F.C.T.D., regarding facts which are similar to those in the case at bar, when she wrote:

[19]         In the present case, the Operations Manager set forth in her decision letter one reason, and one reason only, for the decision to require forfeiture and enforcement. That reason was that Mr. Lynch had failed to comply with a term of his release. While that was a condition precedent for the exercise of the discretion reposed in the officer, such reason does not evidence that the officer directed her mind to the exercise of discretion or to the principles which should guide the exercise of that discretion.

[20]         Aside from acknowledging in the opening sentence of the decision letter the existence of correspondence, the decision letter is silent as to any matter considered by the officer other than the fact that Mr. Lynch's passport was not surrendered to an immigration officer in the required time frame.

[34]      As the decision of April 26, 2002, subject to this judicial review is void, what becomes of the proceeding?

[35]      In his motion dated April 30, 2003, counsel for the respondent asked me, inter alia, to stay the hearing to a later date in order to allow the applicant to respond to the decision dated April 29, 2003, which was done as of August 14, 2002, as mentioned above.

[36]      Counsel for the respondent asked the Court to maintain this proceeding, to replace the decision of April 26, 2002, by that of August 14, 2003, and to allow the proceeding to take the normal course of applications for leave and judicial review, thus enabling the parties to refer to the pleadings and documents already filed.

[37]      For the sake of fairness to the applicant, and taking into account the respondent's about-face in changing the decision, and the consequences that result, I do not wish to place a heavy burden on the applicant, and as such I wish to minimize the consequences of my decision for her. Accordingly, I will authorize use of this pleading in the same case, replacing by amendment the decision subject to judicial review by that of August 14, 2003, if the applicant so requests within 15 days of receipt of this judgment.

[38]      Further, also to minimize the consequences for the applicant, and if she so requests, I consider that the case raises several serious questions, including:

            -           did the respondent's representative correctly apply the ministerial policy in implementing section 104 of the Act?

            -           is the respondent bound by the statements of his representative at the hearing before the adjudicator on November 7, 2001?

            -           is the respondent bound by his counsel's admission in the pleading of March 19, 2003, when he mentioned in his pleading that the respondent was claiming $60,000, rather than $120,000, for humanitarian reasons?

            -           if the applicant had to pay the amount of the security, should she pay $60,000 or $120,000?

[39]      Also with a view of moving the matter forward and obtaining a decision as soon as possible, I suggest that the undersigned retain control of the case in view of his experience with the matter.

COSTS

[40]      In concluding, I must discuss the question of costs. The applicant and her counsel cannot be blamed for all that has happened since March 19, 2003, in this case. It was the respondent who asked to be allowed to file a supplementary memorandum regarding the [TRANSLATION] "alleged inadequacy of the reasons" in the decision of April 26, 2002, and who subsequently through his representative decided to issue a new decision, which created much more work for the applicant. In view of this situation and of the respondent's argument that some $3,000 in interest not be claimed, I conclude that costs of $2,500 should be paid to the applicant by the respondent forthwith. This seems quite appropriate in the case at bar.

[41]      The respondent asked the Court to reserve its decision on submitting questions for certification. As this is an interlocutory decision, and referring to paragraph 72(2)(e) of the Act, I consider that the right to submit certified questions does not exist.

FOR ALL THESE REASONS, THE COURT ORDERS THE FOLLOWING:

            -           DECLARES that the decision of Lise Gignac on April 26, 2002, the decision subject to this judicial review, was cancelled by the decision of René D'Aoustdated August 14, 2003, in which he upheld his preliminary decision dated April 29, 2003;

            -           AUTHORIZES the applicant, in Court file No. IMM-2190-02, to substitute the decision dated August 14, 2003, for that dated April 26, 2002, within 15 days of receipt of this amended judgment, informing the respondent and the Court of her agreement in writing, failing which this proceeding shall cease;

-           AUTHORIZES the applicant, should the applicant avail herself of the foregoing, to amend her Application for Leave and Judicial Review accordingly. The application for leave for review of the Minister's decision dated August 14, 2003, will then be deemed to have been allowed and the applicant shall now abandon her applications in Court docket number IMM-6732-03. The applicant will have 30 days after the filing of her above-mentioned agreement to serve and file another record; the respondent will then have 30 days in which to serve and file its amended record, the period between December 21, 2003 and January 7, 2004 being excluded in the calculation of this time limit. The applicant may, within 10 days, serve and file a reply to the respondent's new record.

-           The parties may then file a joint application for hearing, indicating the dates that they will be available, as well as the number of hours required for the hearing;

-           When this application is filed, the parties shall inform the administrator of the Court that I am seized of this file and that the hearing should be scheduled before me;

            -           AWARDS the applicant costs in the amount of $2,500 to be paid by the respondent forthwith.

Certified true translation

Kelley A. Harvey, BA, BCL, LLB

                                                 FEDERAL COURT OF CANADA

                                                      SOLICITORS OF RECORD

FILE:                                                                           IMM-2190-02

STYLE OF CAUSE:                                                   GRACE BCHERRAWY

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

PLACE OF HEARING:                                             Montréal, Quebec

DATE OF HEARING:                                               March 19, 2003

REASONS FOR AMENDED ORDER:                  S. NOËL J.

DATE OF REASONS:                                               December 5, 2003

APPEARANCES:

Jean-Michel Montbriand                                                FOR THE APPLICANT

Normand Lemyre                                                          FOR THE RESPONDENT

Roberto Godoy

SOLICITORS OF RECORD:

Doyon & Montbriand                                                    FOR THE APPLICANT

Montréal, Quebec

Morris Rosenberg                                                          FOR THE RESPONDENT

Deputy Attorney General of Canada