Date: 20010515
Docket: IMM-2291-01
Neutral citation: 2001 FCT 491
BETWEEN:
SALOME SINO CRUZ
Applicant
AND
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER AND REASONS FOR ORDER
BLAIS J.:
[1] This is a motion for an interim order for the issuance of an employment authorization.
[2] On May 9, 2001, the Applicant filed an application for judicial review of a decision rendered on April 27, 2001 by visa officer E.A. Arnott, at the Canadian Consulate General in New York City, who denied the Applicant's application for an employment authorization.
[3] On the same date, the Applicant served to the Respondent a motion for an interim order seeking an employment authorization until a decision is rendered by the Court.
[4] The Applicant based her motion on the fact that she has no other recourse available that would enable her to legally earn a living while waiting for the final disposition of her case by this Court.
[5] She submits that she has not worked since March 1999 and, as there will be an additional delay for this Court to hear the application on the merits, she urgently needs to work during this time.
[6] On April 27, 2001, the visa officer refused the Applicant's application for an employment authorization pursuant to the Live-in Caregiver Program.
[7] In my view, the Applicant is seeking, even though on a temporary basis, a reversal of the refusal of the employment authorization decided by visa officer Arnott.
[8] Counsel for the Respondent is right when he suggests that it is not within the purview of the Court, pursuant to section 18.2 of the Federal Court Act which provides for interim orders, to issue the order sought by the Applicant.
[9] In Strizhko, the Applicants sought an interim order that Minister's permits be granted until final disposition of an application against the decision refusing such permits be made by the Federal Court. Mr. Justice Dubé denied the application, finding as follows:
Counsel for the Minister does not deny the factual situation and, in fact, did not file a respondent's record (because of the short delay and mortality in the family of his colleague who was acting in this case). The sole argument tendered by the respondent's counsel is to the effect that this Court does not have the jurisdiction to grant the instant motion.
It is a valid argument. Section 18.2 of the Act provides that the Trial Division of this Court may make such interim orders as it considers appropriate pending the final disposition of an application for judicial review. However, it cannot be used as a vehicle to by-pass the judicial review stipulated under section 18.1 of the Act. That section enables this Court to order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing.
The instant motion is substantially an attack on Mr. Sprunt's decision of June 23, 1998, refusing to authorize a permit in the instant case. As mentioned earlier, grounds for that decision are outlined in Mrs. Elaine Cooke's letter of June 25, 1998: "the Canadian Visa Officials in Moscow do not issue Minister's Permits in order to allow the applicants to evade military service". Undoubtedly, it is within the Minister's discretion to issue or not to issue a Minister's Permit. Of course, that discretion must be exercised in a reasonable manner. In my view, it is not patently unreasonable for the Minister to refuse a permit to an applicant seeking to evade military service in his own country. To decide otherwise would send an open invitation to millions of young men all over the world to apply for such a permit.
Strizhko v. M.C.I. (1998) 150 F.T.R. 244 (F.C.T.D.)
[10] In Encila, which involved the refusal of an extension of an employment authorization of a live-in caregiver from the Phillippines, Mr. Justice Gibson granted a stay application but found that he was without jurisdiction to grant interim relief to allow the Applicant to work in Canada pending disposition of her application for judicial review.
Regarding the other interim relief sought by the Applicant, I find I have no jurisdiction to grant relief that would "... allow the Applicant to work in Canada pending the disposition of [the Applicant's] application [for leave and for judicial review]."
In Canada (M.E.I.) v. Kahlon, Mr. Justice Mahoney stated:
"... in our respectful opinion, the learned trial judge erred in ordering the Minister to cause visitors' visas to be issued. The visa officer had disposed of the application for the visas and there remained no duty to be performed enforceable by mandamus. Mandamus will issue to require performance of a duty; it cannot, however, dictate the result to be reached."
Generally speaking, I am satisfied that the same can be said by analogy with respect to any order purporting to grant employment authorization or to require the Respondent to cause an employment authorization to be issued, reinstated or extended. There are, undoubtedly, exceptions to this general principle. For example, in Martinoff v. Canada, Madame Justice Reed stated:
"When the merits of the decision have, in fact been determined in the applicant's favour by the deciding officer and the only challenge to the decision is that the officer took into account an additional and extraneous consideration, then, a mandamus order on the merits may be issued. Also, if the decision to be made by the deciding officer is not, in fact, a discretionary one but is mandatory, and if the required conditions have been met, an order of mandamus may issue requiring a positive disposition on the merits."
Neither of the exceptions cited by Madame Justice Reed applies on the facts before me. On those facts, I find that I lack jurisdiction to grant an employment authorization, to direct the Respondent to grant such an authorization or to direct the Respondent to reinstate or extend the Applicant's expired authorization. In this regard, with great respect, I decline to follow the precedents established by the learned Associate Chief Justice.
Encila v. M.C.I. (1996) 34 Imm. L.R. (2d) 180 (F.C.T.D.)
Canada (M.E.I.) v. Kahlon [1986] 3 F.C. 386 (F.C.A.)
[11] In my view, it was wrong for the Applicant to conclude from the decision of Mr. Justice Lemieux's order of June 29, 2000 that the Applicant would be issued an employment authorization and that Mr. Justice Lemieux's order should be seen as a res judicata regarding the employment authorization.
[12] In fact, the Court order returns the matter to a new visa officer for redetermination as is the practice in such cases and the decision of the visa officer to convoke the Applicant to an interview in August 2000 was within his discretion.
[13] Nevertheless, all the circumstances surrounding the decision rendered by the visa officer should be discussed at the hearing on judicial review and are not really relevant to this motion for interim order.
[14] In my view, the Applicant failed to convince the Court that an interim order for the issuance of an employment authorization would be appropriate in this case.
[15] I have carefully reviewed the Encila decision and I cannot conclude the exceptions cited by Madam Justice Reed in Martinoff quoted by Mr. Justice Gibson applies to the facts before me.
[16] Therefore, this motion for interim order is dismissed.
Pierre Blais
Judge
Montreal, Quebec
May 15, 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20010515
Docket: IMM-2291-01
BETWEEN:
SALOME SINO CRUZ
Applicant
AND:
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
ORDER AND REASONS FOR ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2291-01
STYLE OF CAUSE:
SALOME SINO CRUZ
Applicant
AND
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: May 14, 2001
REASONS FOR ORDEROF THE HONOURABLE MR. JUSTICE BLAIS
DATED: May 15, 2001
APPEARANCES:
Vonnie E. Rochester FOR THE APPLICANT
Daniel Latulippe FOR THE RESPONDENT
SOLICITORS OF RECORD:
Vonnie E. Rochester FOR THE APPLICANT
Montreal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
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