Date: 19991015
Docket: IMM-4702-99
BETWEEN:
SOUAD OMAR ALI
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
CAMPBELL J.
[1] This is an application for judicial review of an alleged decision of Georges Boisse, a visa officer at the Canadian Embassy in Tunis, Tunisia in September 1999. The Applicant alleges that the visa officer (the "Minister"s Delegate") unlawfully refused to issue a Minister"s Permit ("MP") to the Applicant pursuant to section 37 of the Immigration Act (the "Act"). The Applicant seeks judicial review of this alleged decision. By consent, leave is hereby granted on this application.
A. Agreed facts
[2] The Applicant, Mrs. Souad Omar Ali ("Mrs. Omar Ali") and her husband, Dr. Hussein Khalaff-Abourawi ("Dr. Khalaff"), live in Swift Current, Saskatchewan with their son, Abd Al-Aleem Khalaff, and daughter, Amera Gamela Khalaff.
[3] Dr. Khalaff is a citizen of Libya. He came to Canada in 1983 and trained as a Urologist at the University of Toronto. He was hired as a full-time, permanent Urologist in Swift Current, Saskatchewan in September 1994.
[4] Mrs. Omar Ali is also a citizen of Libya. She moved to Canada in August 1994 and has been living with her husband in Swift Current since that time. Their son, age 4", was born in Swift Current on January 2, 1995 and is a Canadian citizen. Their daughter, age 3, was born in Swift Current on August 22, 1996 and is also a Canadian citizen.
[5] Dr. Khalaff filed an application for permanent residence (the "Permanent Residence Application"), with Mrs. Omar Ali as a dependent, on October 28, 1995 at the Canadian Consulate General in Buffalo, New York (the "Buffalo Visa Office").
[6] Mrs. Omar Ali"s sister recently passed away in Tripoli, Libya and Mrs. Omar Ali flew there with her two children. To return home, Mrs. Omar Ali drove with the two children approximately 800 kilometres to the nearest Canadian Embassy, in Tunis, Tunisia (the "Tunis Visa Office").
[7] Mrs. Omar Ali had been issued a visitor"s visa by the Tunis Visa Office on May 21, 1997. She had also obtained an extension of her visitor status in Canada, valid until January 1, 2000.
[8] The Minister"s Delegate interviewed Mrs. Omar Ali on September 10, 1999. At the beginning of the interview Mrs. Omar Ali informed the Minister"s Delegate that she was returning to Canada to join her husband, and that their intention was to remain in Canada. She also stated that she and her husband had filed an application for permanent residence.
[9] Mrs. Omar Ali informed the Minister"s Delegate that members of her family resided in Libya.
[10] The Minister"s Delegate informed Mrs. Omar Ali of his decision to refuse her application for a visitor"s visa as she did not meet the definition of a visitor. The Minister"s Delegate found that she did not meet the definition of visitor as she was not seeking to enter Canada for a temporary purpose, but to reside permanently in Canada.
[11] The Minister"s Delegate explained to Mrs. Omar Ali that he was not satisfied that she and her husband had the intention of leaving Canada if their application for permanent residence was rejected considering the number of years that they had already spent in Canada and the fact that they had two Canadian-born children.
[12] The Minister"s Delegate further advised Mrs. Omar Ali that he would be willing to consider issuing her a Minister"s Permit allowing her an early entry into Canada, upon receipt of confirmation from the immigration office processing her application for permanent residence that the statutory requirements had been met for the eventual issuance of her immigrant visa. Such a Minister"s Permit would be issued under s.37(1)(a) of the Immigration Act .
[13] The Minister"s Delegate advised Mrs. Omar Ali at the interview that her application for a visitor visa had been refused. The practice at the visa office in Tunis is that no letter is given to a refused applicant unless one is requested. As Mrs. Omar Ali did not ask for a refusal letter, the Minister"s Delegate did not provide her with one.
[14] By letter dated September 15, 1999, the Visa Officer wrote to the Honourable Minister Ralph Goodale, in response to Minister Goodale"s inquiry dated September 14, 1999, and explained his decision regarding Mrs. Omar Ali"s application for a visitor"s visa. With respect to the possibility of a Minister"s Permit, the Minister"s Delegate stated, "However, I am not in position to issue such a permit until assured that all statutory requirements for permanent residence will be met by her and her husband."
B. Agreed issues
1. Whether the Minister"s Delegate made a "decision" within the meaning of section 18.1 of the Federal Court Act.
2. Whether the Minister"s Delegate erred in law and improperly exercised his discretion by failing to consider either
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(i) whether humanitarian and compassionate considerations, and the Applicant"s need to come into Canada, outweighed her risk to Canadian society, or |
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(ii) the interests of the Applicant"s children; and if so |
3. Whether this Court has jurisdiction to direct the result of the Minister"s Delegate"s exercise of his discretion to issue or not to issue an MP under s.37 of the Act .
C. Analysis respecting issue 1
[15] Subsequent to the Agreement of Facts being submitted, a new affidavit of the Minister"s Delegate, dated October 14, 1999, has been filed which states in paragraph 24 as follows:
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24. Mrs. Ali did not raise the prospect of a Minister"s Permit with me. Rather, I raised it with her. I have not refused to issue a Minister"s Permit as I never received a request from the Applicant for such a Permit. I have however set the condition under which I would be ready to issue a Permit. I must be satisfied that Mrs. Ali and her husband have met the statutory requirements of their permanent residence application. Mrs. Ali is free to submit an application for a Minister"s Permit at any time. |
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[16] I find that the words "I have however set the condition under which I would be ready to issue a Permit" constitute a decision to limit the criteria to be considered on a Ministerial Permit respecting the Applicant to those contained in section 2.8.1 of the Immigration Manual, Overseas Processing, Ch. OP 19, Minister"s Permits (the "Manual").
[17] On the authority of Baker v. Canada (Minister of Citizenship and Immigration) (1999), 174 D.L.R. (4th) 193 (S.C.C.), I find that the Manual has significant importance respecting the soundness of the decision-making in the present application. According to its provisions, the criteria to be applied on an application for a Minister"s Permit includes all those outlined in section 2.8. Therefore, I find the limit placed by the Minister"s Delegate to be an error in law.
ORDER:
[18] Accordingly, I hereby set the decision aside, and refer the matter to another Minister"s Delegate for a decision on a Ministerial Permit for the Applicant, taking into consideration all relevant factors including all those under section 2.8 of the Manual .
[19] I also direct that the decision be rendered not later than 5 p.m. G.M.T. on October 22nd, 1999, based on the record as it exists at the moment, but with the addition of written representations to be supplied by the Applicant"s counsel.
[20] No Order as to costs.
(Sgd.) "Douglas Campbell"
Judge
October 15, 1999
Vancouver, British Columbia
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-4702-99
STYLE OF CAUSE: SOUAD OMAR ALI
v.
M.C.I.
PLACE OF HEARING: VANCOUVER, BC
DATE OF HEARING: OCTOBER 15, 1999
REASONS FOR ORDER AND ORDER OF CAMPBELL, J.
DATED: OCTOBER 15, 1999
APPEARANCES:
Mr. Daniel R. Bennet
| Mr. Christopher S. Wilson for the Applicant |
| Mr. Mark Sheardown for the Respondent |
SOLICITORS OF RECORD:
Bull Housser & Tupper
| Vancouver, BC for the Applicant |
Morris Rosenberg
Deputy Attorney General
| of Canada for the Respondent |
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