Date: 19991004
Docket: IMM-5482-98
Ottawa, Ontario, the 4th day of October 1999
PRESENT: THE HONOURABLE MADAME JUSTICE SHARLOW
BETWEEN:
JAINANAN ARJUN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
The motion is dismissed with costs which are fixed at $1,000.00.
Karen R. Sharlow
Judge
Date: 19991004
Docket: IMM-5482-98
BETWEEN:
JAINANAN ARJUN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
SHARLOW J.:
[1] This is a motion by the Crown under Rule 397 for reconsideration of my order dated September 8, 1999, allowing the application for judicial review. The order was made from the bench after a hearing.
[2] Counsel for the Crown relies on Rule 397(1)(b) and argues that the order should be varied because there was a matter that should have been dealt with that was overlooked or accidently omitted during the hearing. Counsel for Mr. Arjun argues that the conditions for the application of this rule have not been met.
Ground on which the application was allowed
[3] At the hearing, counsel for Mr. Arjun argued that the visa officer failed to grant Mr. Arjun an interview even though he had received more than 60 points in the initial assessment of his application. The Crown's written argument asserted that Mr. Arjun had not received the requisite 60 points. However, counsel for the Crown conceded at the hearing that Mr. Arjun had received more than 60 points, and thus was entitled to an interview.
[4] Counsel for the Crown also conceded that the failure to grant Mr. Arjun an interview was an error that entitled Mr. Arjun to have the decision of the visa officer quashed and to have his application referred back for reconsideration by a different visa officer.
[5] It was on the basis of that second concession that the order allowing the application for judicial review was made.
Basis of motion for reconsideration
[6] Counsel for the Crown belatedly realized that he should not have conceded that Mr. Arjun was wrongly denied an interview. Instead, he should have brought Regulation 11.1 to my attention. It provides, in effect, that because Mr. Arjun had not achieved any points in the category of "occupational factor," he would not have been entitled to an interview even if he had achieved more than 60 points. Counsel for the Crown now argues that his failure to refer to that legal point at the hearing led to an order that may be based on an error of law.
[7] The Crown's argument is based on the assumption that if Regulation 11.1 had been brought to my attention at the hearing, the other arguments raised at the hearing would have been decided in the Crown's favour. That is not necessarily the case. Any reconsideration would necessarily require me to consider the other grounds for review that were fully argued before me but not resolved.
Whether the order should be reconsidered
[8] The Crown's motion raises an important threshold question, whether the failure by counsel to raise a legal argument in the course of a hearing is an appropriate basis for reconsideration of an order under Rule 397(1)(b).
[9] Counsel for Mr. Arjun argues that the doctrine of res judicata should preclude such an oversight from being a ground of reconsideration. In response to that argument, counsel for the Crown relies on Jhajj v. Canada, [1995] 2 F.C. 369 (F.C.T.D.) and says that Rule 397 overrides the doctrine of res judicata.
[10] The Crown's reliance on that case is mistaken. It deals with the predecessor to Rule 399, Rule 1733. Rule 399 deals with the Court's power to set aside or vary an order on the basis of new evidence, an order made ex parte, an order in the absence of a party whose failure to appear was by accident, mistake or insufficient notice, or an order obtained by fraud. Rule 399 has no application in this case.
[11] I have considerable doubt whether this is an appropriate case for the application of Rule 397. The Crown's arguments are in the nature of an appeal, and do not allege any failure on my part to deal with a point that was argued.
[12] However, it seems to be more appropriate in the particular circumstances of this case to be guided by Rule 3, which underlines the Court's overall objective to secure the just, most expeditious and least expensive determination of every proceeding on its merits.
[13] Thus I will assume, without deciding, that the Crown has properly invoked Rule 397. I will reconsider all of the arguments made on the merits of the case.
Reconsideration -- Mr. Arjun's other arguments
[14] Mr. Arjun's application for judicial review challenged the decision of a visa officer denying his application for permanent residence. The challenge was based on several grounds, one being the failure to grant the interview, as discussed above.
[15] Counsel for Mr. Arjun also argued that Mr. Arjun's application for permanent residence was based on erroneous information provided by the Crown.
[16] Mr. Arjun prepared his application himself, with no assistance from counsel or other professional adviser. He said in his affidavit that in early 1998 he asked the Crown for an application kit to assist him in making his application, but the kit he was sent related to regulations that had been repealed the year before. He framed his application around the outdated information, which is why he indicated that his intended occupation in Canada was electrical wiring inspector. Mr. Arjun further alleged that he was also qualified as a machinist, but he did not apply as such.
[17] It is argued that if Mr. Arjun had been given the correct information, he would have known that the regulations actually in force would have resulted in a better evaluation under the category of machinist. That obviously is so. Thus, if Mr. Arjun's story is believed, the inescapable inference is that his application for permanent residence was prejudiced from the outset by erroneous advice from the Crown.
[18] Mr. Arjun was cross-examined on his affidavit. The cross-examination casts no doubt on his credibility.
[19] The Crown has not suggested that Mr. Arjun's argument is ill founded in principle. Rather, the Crown has simply denied that Mr. Arjun was sent outdated information. The Crown relies on an affidavit of an official who said that she was the person responsible for ensuring that correct, current information was included in all application kits, and that to the best of her knowledge no outdated kits had been sent after the new regulations came into force.
[20] However, the official admitted in cross-examination that no record was kept of the information actually sent to particular individuals, and that she could not be certain that Mr. Arjun was sent the correct kit.
[21] I find as a fact that the Crown sent Mr. Arjun an outdated application kit on which he relied in making his application. Mr. Arjun's affidavit evidence is credible and I accept it. The affidavit relied on by the Crown is truthful but does not rebut Mr. Arjun's assertion that the Crown gave him outdated information.
[22] Mr. Arjun's reliance on the outdated information is obvious from his application form. It should have been clear to the visa officer that Mr. Arjun had been misinformed about some very fundamental questions. In these circumstances, the visa officer ought to have noticed the blatant error and taken steps to permit Mr. Arjun to correct it. I have no doubt that if Mr. Arjun had been given the correct information, his application would have been substantially different and might well have resulted in a positive result for him.
[23] For these reasons, my order of September 9, 1999 will stand. The Crown will bear the costs of this motion, which are fixed at $1,000.00.
Karen R. Sharlow
Judge
Ottawa, Ontario
October 4, 1999