A-247-97
LINDEN, J.A.
ROBERTSON, J.A.
B E T W E E N:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
-and-
JASVIR SAJJAN
Respondent
HEARD at Toronto, Ontario, Tuesday, June 24, 1997.
JUDGMENT delivered from the Bench at Toronto, Ontario, on Tuesday, June 24, 1997.
REASONS FOR JUDGMENT OF THE COURT BY: LINDEN, J.A.
A-247-97
LINDEN, J.A.
ROBERTSON, J.A.
B E T W E E N:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
-and-
JASVIR SAJJAN
Respondent
REASONS FOR JUDGMENT
(Delivered from the Bench, at Toronto, Ontario
Tuesday, June 24, 1997.)
LINDEN, J.A.:
The issue in this appeal is whether a decision of the Immigration Appeal Division (the "Appeal Division") of the Immigration and Refugee Board (the "Board") respecting a decision of a visa officer under ss. 77(1) of the Immigration Act, R.S.C. 1985, c. I-2 (as amended), may be judicially reviewed without the leave of a judge of the Federal Court - Trial Division. It is before this Court as a result of the Minister of Citizenship and Immigration's motion to strike out the respondent's Originating Notice of Motion of July 4, 1996, in which, without leave, he sought to have a decision of the Appeal Division set aside. That motion was dismissed. A serious question of general importance was certified by the Motions Judge as follows:
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Must an application for judicial review under the Federal Court Act of a decision of the Immigration Appeal Division of the Immigration and Refugee Board, on a manner arising under section 77 of the Immigration Act with respect to an application to a visa officer, be commenced only with the leave of a judge of the Federal Court - Trial Division. |
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Subsection 82.1(1) and 82.1(2) reads as follows:
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82.1 (1) An application for judicial review under the Federal Court 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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The Motions Judge found that the decision of the Appeal Division fits within the phrase "... any other matter arising thereunder with respect to an application to a visa officer". He reasoned that the word "arising" was sufficiently broad to include the decision of the Appeal Division as a matter arising under section 77 and also that the Appeal Division's decision could be classified as a decision "... with respect to an application to a visa officer". According to the Motions Judge, "[i]f 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".
With respect, we disagree. In our view, the answer to the certified question should be yes. Subsection 82.1(2), read in its total context and having regard to the French version of the legislation, which is equally official, does not allow the commencement of an application for judicial review in these circumstances without leave.
A decision made by the Appeal Division, such as the one being challenged in this application, is not a decision of a visa officer about a matter arising under sections 9, 10 or 77. A decision made by the Appeal Division is a decision made by a different decision-maker than a visa officer, and, hence, does not come within the exception.
The French version of subsection 82.1(2) makes that abundantly clear for it stresses the requirement of a decision made by the visa officer himself or herself, before this exception can be relied upon. It reads:
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Le paragraphe (1) ne s'applique pas aux décisions prises par l'agent des visas dans le cadre des articles 9, 10 ou 77 ni aux questions soulevées par toute demande qui lui est faite dans ce cadre. (emphasis added) |
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These words can only mean that the exception relates exclusively to decisions of visa officers made under or in the context of sections 9, 10 and 77 and to no others.
In our view the words "any other matter arising thereunder" do not include decisions made by the Appeal Division, following an appeal to it from a visa officer under these sections. Such an important departure from the general scheme of the Act would normally be done by express words to that effect, and not in such a roundabout way. The policy argument advanced by counsel for the Respondents, to the effect that sponsors in Canada are given direct access to the Trial Division following an unfavourable ruling of the Appeal Division because of the urgency of uniting families, has some appeal, but the language of the section does not permit such an interpretation. The counter policy argument of the counsel for the Appellant is more persuasive to the effect that applicants from outside Canada having no appeal to the Appeal Division, may apply for judicial review directly without leave, but sponsors within Canada, who are given a right to appeal to the Appeal Division, cannot challenge that decision by a further application for judicial review except with leave of the Court. A sponsor may appeal to the Appeal Division under subsection 73(3) on (1) a question of law or fact or mixed law and fact, or (2) on compassionate and humanitarian grounds. It, therefore, makes sense in order to limit access to this Court, in cases such as these, to require leave of the Court.
This interpretation does not render superfluous the concluding words of the subsection "or to any other matter arising thereunder with respect to an application to a visa officer". These words would clearly apply to situations where a visa officer has failed to decide and an application in the way of mandamus is contemplated. There are other matters related to decisions under those three sections, such as procedural rulings, decisions of visa officers that are not appealable to the Appeal Division, etc., which may be covered by these words as well.
For these reasons, the appeal will be allowed, the decision of the Motions Judge will be set aside, the Originating Notice of Motion dated July 4, 1996, will be struck and the certified question will be answered in the affirmative.
"A.M. Linden"
J.A.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: A-247-97
STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
- and -
DATE OF HEARING: JUNE 24, 1997
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT BY: LINDEN, J.A.
Delivered from the Bench at Toronto, Ontario
on Tuesday, June 24, 1997
APPEARANCES:
Mr. John Loncar
For the Appellant
Mr. Harry S. Mann
For the Respondent
SOLICITORS OF RECORD:
George Thomson
Deputy Attorney General
of Canada
For the Appellant
Mann & Sehmi
210-2 Robert Speck Pky.
Mississauge, Ontario
L4Z 1H8
For the Respondent
FEDERAL COURT OF CANADA
Court No.: A-247-97
Between:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Appellant
- and -
Respondent
REASONS FOR JUDGMENT
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