IMM-2292-96
BETWEEN:
JASVIR SAJJAN,
Applicant
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and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION AND
THE ATTORNEY GENERAL OF CANADA
Respondents
REASONS
FOR ORDER
GIBSON J.:
By
Originating Notice of Motion filed the 8th day of July, 1996, the Applicant
seeks judicial review, pursuant to section 18.1 of the Federal Court Act and
section 82.1 of the Immigration Act,
of a decision of the Immigration Appeal Division (the "Panel") of the
Immigration and Refugee Board (the "Board"), that the Applicant's
adopted son is not a member of the family class and that therefore the Panel
was without jurisdiction to hear an appeal, pursuant to subsection 77(3) of the
Immigration Act, of a decision of a visa officer under subsection 77(1)
of that Act.
Counsel
for the Applicant takes the position that the application for judicial review
falls within the ambit of subsection 82.1(2) of the Immigration Act
rather than subsection 82.1(1). Those subsections read as follows:
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82.1(1)
An application for judicial review under the Federal
Court Act with respect to any decision or order made, or any matter
arising, under this Act or the rules or regulations thereunder may be
commenced only with leave of a judge of the Federal Court - Trial Division.
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(2) Subsection (1) does not apply with respect to a
decision of a visa officer on an application under section 9, 10, or 77 or to
any other matter arising thereunder with respect to an application to a visa
officer.
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If counsel for the Applicant is correct in his position,
then this application for judicial review can proceed without leave, that is to
say, as of right.
On the face of the
Originating Notice of Motion, the following paragraph appears:
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The
Applicant requests the Appeal Division of the Immigration and Refugee Board,
... to send a certified copy of the following material that is in its
possession to the Applicant and to the Registry [of the Court].
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i) Complete transcript of the hearing of the appeal
on February 22, 1996... alongwith [sic] the Exhibits and documents on file.
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[the
address of the Panel and the Panel's file number have been omitted from the
foregoing quotation].
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Whether or not leave is required in respect of this application for
judicial review, the procedure on the application is governed by the Federal
Court Immigration Rules, 1993.
Section 3 of those Rules reads as follows:
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3.(1)
These Rules apply to applications and appeals which
are commenced after the coming into force of sections 73, 114, 115, 116, 117
and 118 of An Act to amend the Immigration Act and other Acts in
consequence thereof, chapter 49 of the Statutes of Canada, 1992.
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(2) Part V.I of the Federal Court Rules and
Rule 18 of these Rules apply to applications for judicial review of a
decision of a visa officer.
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Subsection 3 (1) clearly applies to this application for
judicial review. The exception provided in subsection 3(2) extends only to
applications for judicial review of decisions of visa officers and that is
clearly not the case here. Paragraph 15(1)(b) of the Rules provides that an
order granting an application for leave shall specify the time limit within
which the tribunal (here the Panel) is to send copies of its record as required
by section 17 of the Rules. Subsection 15(2) requires the Registry of this
Court to send to the Board a copy of an order granting leave "forthwith
after it has made", thus ensuring that the Panel has notice of its
obligation to send copies of its record. Section 17 of the Rules imposes an
obligation on the Board or Panel, upon receipt of an order under section 15, to
prepare a record including "...a transcript, if any, of any oral testimony
given during the hearing, giving rise to the decision or order or other matter
that is the subject of the application," and imposes a further obligation
on the Board or Panel to send certified copies of that record to the parties to
the appeal and to the Registry of this Court.
Counsel
for the Applicant takes the position that a complete transcript of the hearing
before the Panel is essential to allow him to complete his application record.
The Board has refused to provide the requested material on the basis of its
position that leave of this Court is required to commence this application for
judicial review, that is to say that it falls within the ambit of subsection
82.1(1) rather than subsection 82.(1)(2) of the Immigration Act, and that,
since the Federal Court Immigration Rules apply, leave of this Court is
a condition precedent to any obligation on the Board to provide the requested
material.
The Applicant is now out of time to file his application
record.
By
reason of the Applicant's tardiness in filing his application record, on
October 25, 1996, this Court issued an order requiring the Applicant to show
cause why his application for judicial review should not be summarily
dismissed. Counsel for the Applicant responded citing the failure of the Panel
to provide the requested material and, by Notice of Motion, requesting an
extension of time to file the Applicant's application record.
Counsel for the Respondent opposes the application for
an extension of time on two bases: first, that the Board is correct in its
position that leave is required to commence this application for judicial
review and, leave not having been applied for or obtained, the Board is under
no obligation to provide the requested material; and second, even if leave is
not required, the Applicant has not fully justified his delay in filing an
application record in that the Board has offered access to tapes of the Panel's
hearing and both the Applicant and his counsel were present throughout the
hearing and therefore do not require a transcript to complete the application
record. On the basis of the same reasoning, counsel for the Respondent seeks an
order striking the Applicant's Originating Notice of Motion under the authority
of the Court's show cause order.
The
Court is entitled to proceed on the basis of its show cause order without
appearance of counsel. The Applicant's motion for an extension of time is
brought pursuant to Rule 324 of the Federal Court Rules and therefore
can also be disposed of without the appearance of counsel.
The
first issue before the Court is whether or not the Applicant's application for
judicial review is exempt from the requirement for leave established by
subsection 82.1(1) of the Immigration Act by reason of the exception
contained in subsection (2) of the same section. Subsection 82.1(2) is repeated
here for convenience:
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(2)
Subsection (1) does not apply with respect to a
decision of a visa officer on an application under section 9, 10 or 77 or to
any other matter arising thereunder with respect to an application to a visa
officer.
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The decision in respect of which judicial review is
sought is certainly not "... a decision of a visa officer on an
application under section 9, 10, or 77 [of the Immigration Act]...".
Is it then "...any other matter arising thereunder with respect to an
application to a visa officer?" I am satisfied that the words "
arising thereunder" in subsection 82.1(2) refer to matters arising under
section 9, 10 or 77 of the Immigration Act. Subsections 77(1) and (3) of
the Immigration Act read as follows:
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77.
(1) Where a person has
sponsored an application for landing made by a member of the family class, an
immigration officer or visa officer, as the case may be, may refuse to
approve the application on the grounds that
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(a) the person who sponsored the application does
not meet the requirements of the regulations respecting persons who sponsor
applications for landing or
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(b) the member of the family class does not meet the
requirements of this Act or the regulations;
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and
the person who sponsored the application shall be informed of the reasons for
the refusal.
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(3) Subject to subsections (3.01), (3.02) and (3.1),
a Canadian citizen or permanent resident who has sponsored an application for
landing that is refused pursuant to subsection (1) may appeal to the Appeal
Division on either or both of the following grounds:
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(a) on any ground of appeal that involves a question
of law or fact, or mixed law and fact; and
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(b) on the ground that there exist compassionate or
humanitarian considerations that warrant the granting of special relief.
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Subsections (3.01), (3.02) and (3.1) referred to in subsection 77(3)
are not relevant for the purpose of the question that is now before the Court.
I am satisfied that the decision of the Panel with
respect to which judicial review is sought is a decision or matter
"...arising" under section 77 even though it was made under the
authority of subsection 69.4(2) which vests the Panel with exclusive
jurisdiction to determine questions of jurisdiction in respect of appeals made
pursuant to section 77. I am also satisfied that the decision is "...with
respect to an application to a visa officer." The appeal to the Panel
arose out of a decision of a visa officer under subsection 77(1) made following
an application to a visa officer. If subsection 82.1(2) were intended to apply
only to decisions of visa officers on applications under section 77, then all
of the words following "77" in that subsection, as they relate to
that section, would be superfluous. I am not prepared to conclude that
Parliament meant the closing words to be without meaning.
Although the terminology of subsection 82.1(2) is less
than as clear as one would wish,
I am not satisfied that the closing words of that subsection can be interpreted
in any other way but to include an application for judicial review such as that
which is now before the Court. In the result, I conclude that leave of a judge
of this Court to commence the application for judicial review is not required.
The second question that arises is whether or not the
Board is, on the facts of this matter, under an obligation by virtue of section
17 of the Federal Court Immigration Rules to prepare a record, including
a transcript of the oral hearing before the panel, and to provide a copy of
that record to the Applicant. The obligation under section 17 of the Rules
arises "Upon receipt of an order under Rule 15...". An order under
section 15 of the Rules is an order granting an application for leave. On the
facts before me, no application for leave has been made to the Court and, as
indicated in these reasons, I conclude that no such application was required.
In the absence of such an application and an order granting leave, no
obligation is placed on the Board by section 17 of the Rules. In the result, on
the circumstances of this application, the Board is correct in concluding that
it has no obligation in law to provide to the Applicant a record of the
proceedings before the Panel, with or without a transcript of those
proceedings.
I recognize that my foregoing conclusions result in an
anomalous situation under which neither an applicant or this Court has a right
to require of the Board a record of its proceedings to facilitate certain
applications for judicial review. It is for others to determine whether, in
such circumstances, an amendment to the Immigration Act or the Federal
Court Immigration Rules is required.
There remains the question of whether the Applicant, in
his application for an extension of time to file his application record has fully
accounted for the delay to this point in time. There is no doubt that the
Applicant could have proceeded more expeditiously in preparation of his
application record, even in the absence of the material that he requested from
the Board. However, given the fact that the denial of access to material in the
possession of the Board undoubtedly resulted in some prejudice to the Applicant
and the fact that that denial was based on an interpretation of provisions of
law that are not entirely clear on the facts of this matter, I am not prepared
to deny the Applicant a reasonable extension of time to file his Applicant's
application record.
In the result, the Court will not at this time proceed
further under its Show Cause Order and an extension of time to file the
Applicant's application record will be granted.
“Frederick E. Gibson”
Ottawa, Ontario
January 24, 1997
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