Date: 20080318
Docket: IMM-2345-07
Citation: 2008 FC 361
Toronto, Ontario, March 18,
2008
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
YING HUANG and LI LIYUN
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicant Li Liyun is an adult female citizen of the People’s Republic of China. The other
Applicant, Ying Huang is her daughter and a Canadian citizen. It is not clear
why the daughter is or needs to be an Applicant in this matter. A review of
the Tribunal Record indicates that the lawyer acting as solicitor of record for
the Applicants, one Aliamisse O. Mundulai is the fiancé of Ying Huang and he
filed an affidavit in support of Li Liyun’s application for a visa to visit
Ying Huang and himself in Canada.
[2]
I
have grave concerns as to the conduct of Mr. Mundulai in the events arising a
few days before the scheduled date for the hearing of this application and his
failure to appear at the hearing. Toward the end of the week prior to the day
scheduled for the hearing, Mr. Mundulai wrote to the Court, copying the Counsel
for the Respondent, a letter simply stating that he was unavailable on the date
scheduled for the hearing and proposing alternative dates. No reason for the
unavailability was stated. If the Respondent had consented I would have
adjourned the matter. However, the Respondent did not consent and Mr. Mundulai
was instructed by the Registry to prepare a motion requesting an adjournment
which he did. At the time he asked that the motion be heard on Monday, March
17, the day before the scheduled date for the hearing. Accordingly, the Motion
was set down to be heard on the Monday. The Registry endeavoured several times
to contact Mr. Mundulai or someone at this office with no success. Only a
voicemail answering service was available and messages left were unanswered.
Counsel for the Respondent indicated that his office had sent a fax to Mr.
Mundulai as to the hearing and it went unanswered. The motion was heard on Monday,
and was dismissed. The only basis offered in the Motion Record for seeking an
adjournment was unexplained “personal reasons”. The Registry again endeavoured
to contact Mr. Mundulai or someone in his office to no avail. The hearing of
the matter thus proceeded to be heard, as scheduled, on Tuesday. Mr. Mundulai
did not appear despite the Court delaying matters for a period of time to allow
the premises to be searched and Mr. Mundulai’s name to be called several times.
[3]
This
conduct by Counsel exhibits a disregard of his obligations to the Court and
fellow Counsel. One cannot simply ask and expect to secure an adjournment for
“personal reasons” without more. Counsel are to make themselves available and
to respond to communications from the Court Registry promptly and courteously.
[4]
The
Applicant Liyun has twice applied for a temporary resident visa and has twice
been refused. The first application was refused on November 28, 2006. At that
time, it was noted that several pieces of information that were required were
lacking. No review of that decision was sought.
[5]
The
Applicant Liyun applied for a second time for a temporary resident visa to
visit Canada which was
received by the Minister’s office in Beijing, China on May 15, 2007. On
May 28, 2007 a written decision was made and sent to the Applicant Liyun
refusing the application. The stated reasons for that decision were:
In reaching a decision, an
officer considers several factors; these may include the applicant’s travel and
identity documents, reason for travel to Canada, contacts in Canada, financial
means for the trip, ties to country of residence (including immigration status,
employment and family ties) and whether the applicant would be likely to leave
Canada at the end of his/her authorized stay. I am not satisfied that you meet
the requirements of the Act and Regulations for the reasons indicated below:
…
I am not satisfied that you
are sufficiently well-established and/or have sufficient ties in your country
of residence to motivate your departure from Canada at the end of your authorised period of
stay.
[6]
The
Applicant seeks judicial review of that decision. For the reasons that follow,
I find that the application is dismissed.
[7]
The
Respondent filed an affidavit from the Officer who made the decision in
question. The Officer reviews her CAIPS notes and states that there were
several documents that ought to have been filed that were not and that the
Officer had doubts as to some of the material filed particularly with respect
to investments in China.
[8]
Most
importantly, the Officer’s affidavit stated that “In coming to my decision…”
consideration was given to discrepancies between the Applicant Liyun’s first
and second visa application. It was noted that in the first, Liyun described
herself as a retired office clerk and in the second as a retired chemical
engineer. In one the daughter was described as single, the other described as
a spouse. The Officer concludes in her affidavit that “taking into
consideration these discrepancies” and the “unclear” documentation,
the application was refused.
[9]
Visa
Officers are allowed a reasonable level of discretion in assessing the factual
circumstances presented by an applicant and I find that the Officer in this
circumstance acted reasonably.
[10]
Accordingly,
the application must be dismissed. There is no question for certification.
JUDGMENT
For the Reasons given:
1. The
application is dismissed;
2. There is no question
for certification;
3. No Order as to cost.
"Roger T. Hughes"
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