Date: 20030324
Docket: IMM-911-03
Citation: 2004 FC 453
Toronto, Ontario, March 24th, 2004
Present: The Honourable Mr. Justice Phelan
BETWEEN:
HETTIARACHCHIGE MILROY JAYANTHA PERERA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This judicial review became an argument over the remedy which this Court should fashion in the face of the Respondent's concession that the application should be granted.
[2] In the course of cross-examination of the Visa Officer in this judicial review, the Respondent conceded that an error had been made in the calculation of the units required for immigration to Canada. That error was sufficient to give the Applicant at least the 65 units of assessment required.
[3] The Respondent's counsel then undertook to obtain instructions to consent to the judicial review. The cross-examination was adjourned for that purpose. The Respondent advised that it would consent to the judicial review.
[4] A series of communications then took place between counsel, most of which are irrelevant to the issues here other then to add colour to these proceedings. The matters in dispute dealt with the terms of settlement of the judicial review.
[5] The Respondent finally brought a Rule 369 motion to set aside the Visa Officer's decision on the grounds that the Respondent had consented to the judicial review.
[6] The Applicant objected and asked that the motion not be dealt with until he had an opportunity to respond.
[7] Justice Noël, in reviewing the Rule 369 motion, directed that the motion be dealt with by the Justice scheduled to hear the judicial review.
[8] On the day of the judicial review hearing, the Applicant brought a motion for, amongst other matters, an extension of time to complete the cross-examination of the Visa Officer and extensions of time to file memoranda and related materials.
[9] The basis for the motion is that the Respondent had not agreed to terms of settlement. The motion affidavit contained several serious allegations of misconduct against the Respondent's counsel, many of which were repeated at the hearing.
[10] The only issue on the judicial review was the terms which ought to be imposed by the order granting the judicial review.
Analysis
[11] The motion, for what was tantamount to an adjournment, was dismissed for the following reasons:
a) There was no sufficient justification for delay in bringing this motion;
b) The Applicant has known the Respondent's position on the judicial review for several weeks and the Applicant failed to take any steps until the day of the hearing;
c) The Motion was brought to permit the Applicant to bring forward further evidence of mistakes in the visa assessment process despite the Respondent's concession that the Applicant was entitled to the relief sought in the judicial review;
d) This Motion is part of an effort to have the Court impose terms of settlement not agreed to;
e) The issues of mistakes in the visa assessment process have been conceded and therefore the primary issue in the judicial review is moot;
f) The Motion is grounded in substantial part on allegations against the Respondent's counsel which are unsubstantiated, vicious and to which the Court is not prepared to give credence;
g) The Court does not require this so-called additional evidence to make its decision on the judicial review. The motion was frivolous and vexatious;
[12] On the question of allegations against the Respondent's counsel, the material before this Court discloses absolutely no basis for their support.
[13] While litigation is not a stroll in the park, nor is it a walk down a desk alley in a tough neighbourhood. Professional courtesy is essential for the administration of justice and unsubstantiated allegations and personal attacks on counsel do not assist the Court.
[14] Counsel for the Applicant is fortunate that costs of his motion and of this day were not awarded against him personally.
[15] As to the merits of the judicial review, there is no issue. The Respondent admitted the error by the Visa Officer; an error which went to the root of the refusal to issue the visa.
[16] The Applicant is rightly concerned that he has suffered unjustified delay in the assessment of his visa application. To be placed at the end of the queue of newer applications would be unfair.
[17] The Applicant is rightly concerned that referral to a different visa officer would start the assessment process again and potentially raise new and inconsistent assessments. The Applicant consents to the Visa Officer finalizing his assessment by correcting his error and otherwise processing the application.
[18] The Applicant wishes that the three or four remaining steps in the process be ordered completed in 90 days. Those steps include a determination of the family member assistance, medicals for the Applicant and his family, security clearances and the potential for the exercise of negative discretion under s.11 of the Immigration Regulations 1978. The Court cannot impose deadlines which may be completely unrealistic.
[19] On the issue of the reference back to a visa officer with specific directions, the Court cannot usurp the exercise of the Minister's discretion. However where the conclusion is simple, obvious and inescapable, the Court may issue directions (El Alleti v. Canada (MCI), [1998] F.C.J. No. 201). For at least that part of the assessment to be performed, the assessment of at least 65 units is simple, obvious and inescapable.
[20] The only remaining function of the Visa Officer after issuing the minimum of 65 units is to consider the exercise of negative discretion. The Court will make no order with respect to this aspect of the assessment. However one would have to wonder if such discretion were exercised to deny the visa, whether it would, on the facts of this case, be proper and in good faith.
[21] Regarding the remaining steps in the consideration of the visa application, the Court is in no position to set arbitrary deadlines. However the Court would expect, as a matter of fairness (there is no evidence that the error in assessment was anything other than an honest mistake), that this visa application would be expedited in a reasonable manner in order to rectify, to the extent possible, the delays experienced by the Applicant through no fault of his own.
[22] There are no special reasons justifying a cost award.
[23] There is no certifiable question.
ORDER
THIS COURT ORDERS that:
a) The motion for extensions of time is dismissed without costs.
b) The application for judicial review is granted and the Respondent's Rule 369 motion is subsumed in this Order.
c) The visa application is referred back to the same visa officer with the direction to award the Applicant not less than 65 units.
d) The visa application is to be processed with reasonable expedition consistent with these reasons.
e) No costs are awarded.
f) If there are any issues regarding the failure of the Respondent to implement this Order, a motion related thereto shall be brought before me. Therefore the Court remains seized with this matter.
"Michael L. Phelan"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-911-03
STYLE OF CAUSE: HETTIARACHCHIGE MILROY JAYANTHA PERERA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MARCH 22, 2004
REASONS FOR ORDER
AND ORDER BY: PHELAN J.
DATED: MARCH 24, 2004
APPEARANCES:
SOLICITORS OF RECORD:
|
Mr. T. Viresh Fernando
Barrister & Solicitor
Toronto, Ontario
|
FOR THE APPLICANT
|
|
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario
|
FOR THE RESPONDENT
|
FEDERAL COURT
Date: 20040324
Docket: IMM-911-03
BETWEEN:
HETTIARACHCHIGE MILROY JAYANTHA PERERA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
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