Date: 20011205
Docket: IMM-2894-01
Neutral citation: 2001 FCT 1339
Toronto, Ontario, Wednesday the 5th of December, 2001
PRESENT: Peter A. K. Giles, Esquire
Associate Senior Prothonotary
BETWEEN:
LAI KAM CHAN and CHEN JIA YUN and CHEN JING HANG
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
GILES A.S.P.
[1] The motion before me seeks leave to file additional evidence in a judicial review proceeding. The judicial review is sought of the decision of a visa officer who found that a child over 19 was not a dependant because he had not been continuously in school. Certain official records produced to the visa officer led to that conclusion despite the allegations of the Applicant herein to the contrary.
[2] The Applicant now seeks to file evidence of the existence of other allegedly more correct records which would indicate that the child was in attendance in school during the period in question.
[3] A judicial review seeks to review the decision of the visa officer based on the material before the visa officer. This new evidence patently was not before the visa officer when the impugned decision was made. How then can it be relevant to the requested review.
[4] The submissions of the Applicants seem to indicate that the new evidence shows that the visa officer failed to seek out the correct evidence. The onus is on the immigrant to put the correct evidence before the visa officer not on the visa officer to seek out evidence which might support the applicant's position. This is most logically so because the applicant is the one who knows of the possible existence of the evidence.
[5] Nevertheless, it is alleged that the evidence before the visa officer which may have been the determining factor was false. Whether or not the evidence was in fact false and whether or not the decision of the visa officer turned on the allegedly false evidence is not something I can determine on a interlocutory motion. I will therefore allow the evidence to be filed so that the judge hearing the application may determine the relevance of the additional evidence.
ORDER
1. The Applicant shall have two weeks from the date of this order to file supplementary affidavit evidence.
2. The Respondent shall then have 30 days to file further responding evidence.
3. The times for cross-examination and for filing of records shall be measured from the first of the day fixed for the filing of Respondent's further evidence and the day the Respondent indicates she will not be filing further evidence, if she so indicates.
"Peter A. K. Giles"
A.S.P.
Toronto, Ontario
December 5, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-2894-01
STYLE OF CAUSE: LAI KAM CHAN and CHEN JIA YUN and CHEN JING HANG
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
CONSIDERED AT TORONTO, ONTARIO PURSUANT TO RULE 369
REASONS FOR ORDER
AND ORDER BY: GILES A.S.P.
DATED: WEDNESDAY, DECEMBER 5, 2001
WRITTEN SUBMISSIONS BY: Mr. Gerald T. Miller
For the Applicant
Mr. Greg. G. George
For the Respondent
SOLICITORS OF RECORD: Gardiner Miller Arnold LLP
Barristers & Solicitors
390 Bay Street
Suite 1202
Toronto, Ontario
M5H 2Y2
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20011205
Docket: T-569-00
Between:
LAI KAM CHAN and CHEN JIA YUN and CHEN JING HANG
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR
ORDER AND ORDER
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