Date: 20000724
Docket: IMM-431-00
BETWEEN:
QIONGYU HU,
Applicant,
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
MR. JOHN A. HARGRAVE,
PROTHONOTARY
[1] This judicial review application seeks review of the decision of a Visa Officer who, on processing an application for permanent residence, apparently miscalculated the credit given for Mr. Qiongyu Hu"s formal education. These reasons arise because the Respondent now seeks a second extension of time within which to file an affidavit to be sworn by the Visa Officer in question.
[2] It is clear that the Citizenship and Immigration service are either not taking this matter seriously, or are not dealing with it competently. Everyone"s time is being wasted. The motion is therefore denied.
[3] More specifically, Mr. Qiongyu Hu"s case first came before the Court by means of an application for judicial review in a predecessor proceeding IMM-2995-99. In that proceeding the Respondent consented to the application: it appeared clear that the Visa Officer dealing with Mr. Qiongyu Hu"s application for permanent residence had made an incorrect assessment of the Applicant"s education.
[4] In dealing with that consent, having in mind the caution of Mr. Justice Rothstein, as he then was, in Sheng Xie v. M.E.I. (1994), 75 F.T.R. 125 at 130, I specifically declined to give the new Visa Officer instructions on how to handle the application, or specifically on assessing a degree in a discipline related to translation. I wrote in part:
| As to a direction to the new visa officer, I am not convinced that the Applicant is entitled, as a right, to any particular outcome, for whether a bachelors degree, with a major in French, from Sichuan Institute of Foreign Languages, with courses in translation, intensive reading, dictation, grammar, speaking and listening is a degree in a discipline related to a bachelors degree in translation is in all likelihood a matter of both fact and law. However, it clearly ought not to be necessary, in this instance, for the Court to explain to the new visa officer how to do her or his job. In making recommendations it is implicit that the new visa officer will take into consideration and apply both the concept that a bachelors degree with a language major, with courses clearly on point for a professional career as a translator or interpreter may be a degree in a related discipline within National Occupational Classification 5125 and the concept that some meaning must be given to the idea set out in the National Occupation Classification of a degree in a related discipline. |
I had in mind that the Visa Officer, notwithstanding that my comments did not constitute a direction, might take some guidance, or at least not fall into the same error, when assessing and applying the concept, set out in the National Occupation Classification, of a degree in a related discipline. It appears that my decision did not get before the Visa Officer.
[5] In the interim Mr. Justice Muldoon made it clear in Yue Wu Dai v. M.C.I., an unreported 19 April 1999 decision in file IMM-749-99, a case involving the assessment of a degree similar to a degree in translation, that someone who had passed relevant courses including in "written English translation, English composition, translation, interpretation, English language newspapers, current affairs, spoken English, oral comprehension, English grammar, extensive reading in English ..." in fact had a degree in a discipline related to translation. Mr. Justice Muldoon sent the matter back to the Visa Officer with instructions amounting to a directed verdict. The courses taken there by the Applicant, Mr. Yue Wu Dai and found satisfactory are essentially the same courses taken here by Mr. Qiongyu Hu and found wanting.
[6] In any event, when Mr. Qiongyu Hu"s second application for permanent residence came before a new Visa Officer, that Officer made the same apparent error in considering the concept of degree equivalence. This repeat error resulted in the second application, the present judicial review application, IMM-431-00.
[7] As with the first time around counsel for the Respondent recognized that the second Visa Officer has again erred and sought, by motion, to have the judicial review application allowed, the application to be done again and put before a third Visa Officer. Mr. Justice Campbell, without reasons beyond noting the lack of consent, refused to allow that motion.
[8] Mr. Justice Campbell"s decision, given that the Citizenship and Immigration Department had already made the same apparent error twice running, was practical and reasonable. As an applicant, Mr. Qiongyu Hu, particularly in that he does not live near any centre where he might easily attend for a third assessment, ought not to be put through the process which, as I say, the Department of Citizenship and Immigration is either not taking seriously or is treating incompetently.
[9] This brings us to the present motion seeking a second extension of time within which to file the Respondent"s Affidavit. It seems the preparation of the Visa Officer"s Affidavit was left rather late into the first extension, counsel only then discovering that the relevant Visa Officer was on holiday.
[10] Time extensions are governed by well established law and particularly by Grewal v. M.E.I.. (1986), 63 N.R. 106 (F.C.A.), a decision of Chief Justice Thurlow. At page 110 he pointed out the underlying consideration of a time extension, that of doing justice between the parties:
| The underlying consideration, however, which, as it seems to me, must be borne in mind in dealing with any application of this kind, is whether, in the circumstances presented, to do justice between the parties calls for the granting of an extension. |
Now there are additional criteria, as set out in Grewal (supra), Moreno v. M.C.I. (1996), 110 F.T.R. 57 and Valyenegro v. Canada (1994), 88 F.T.R. 196, requiring that an applicant for an extension of time must account for the delay, show there is an arguable case and establish that the applicant for the time extension will suffer prejudice without an extension and that the respondent will suffer no prejudice if an extension is granted.
[11] In the present instance, the Respondent submits, among the grounds for the motion, that "The Respondent has an arguable case, in that the legal issues raised by the Respondent are addressed in the jurisprudence of this Honourable Court;...". There is no follow up on that statement, which is a bare statement and, except where such is patently so, requires some elaboration. Moreover, in the present instance, the Respondent, by requesting that the material be sent back to a third visa officer for another try, has effectively admitted that there is no arguable case.
[12] The Respondent may always have intended to file the necessary affidavits and does account for part, but not all of the delay. Finally, I do not see that the Respondent will suffer any prejudice if denied an opportunity to file an affidavit in support of a case that is not arguable, however the Applicant, Mr. Qiongyu Hu will, if there is a meaningless affidavit, suffer the further indignity and prejudice, in the sense of wasted time and money, which in these particular circumstances is prejudice, should the extension be allowed.
[13] All of this comes back to Chief Justice Thurlow"s view that the underlying consideration in a time extension of this sort is to do justice. Here, to the contrary, justice would not be done to Mr. Qiongyu Hu if the extension were allowed.
[14] The extension is denied with the costs of this motion payable to Mr. Qiongyu Hu forthwith.
(Sgd.) "John A. Hargrave"
Prothonotary
July 24, 2000
Vancouver, British Columbia
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-431-00
STYLE OF CAUSE: QIONGYU HU
v.
MINISTER OF CITIZENSHIP
AND IMMIGRATION,
MOTION DEALT WITH IN WRITING PURSUANT TO RULE 369
REASONS FOR ORDER OF HARGRAVE P.
DATED: July 24, 2000
WRITTEN SUBMISSIONS BY:
Mr. Dennis Tanack FOR PLAINTIFF
Mr. Mark Sheardown FOR DEFENDANT
SOLICITORS OF RECORD:
Dennis Tanack
Vancouver, BC FOR PLAINTIFF
Morris Rosenberg
Deputy Attorney General
of Canada FOR DEFENDANT
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