Date: 20000615
Docket: IMM-3281-99
BETWEEN:
EET-LEE JESSLYN TIO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is a judicial review application of the decision of the Immigration Appeal Division dismissing the applicant"s motion to reopen the appeal.
FACTS
[2] The applicant was seeking to sponsor her husband Andy Chan who since May 1990, has lived in Canada. The applicant and Mr. Chan have a son born in Toronto on June 2, 1997. They also operate a business.
[3] The visa officer at the Canadian Consulate General at Detroit denied Mr. Chan"s application owing to convictions which occurred in Hong Kong in 1988, when he was 21 years old.
[4] The appeal of that decision was scheduled to be heard on April 14, 1999 at 9:30. However it was delayed until 1:30 in the afternoon, since another case was proceeding in the morning. Counsel for the applicant had to fly to Detroit to meet a client by 1:00, neither counsel nor applicant waited for the 1:30 hearing.
[5] Member Daniele A. D"Ignazio examined all the evidence and concluded that the refusal was valid in law. Member D"Iznazio then went on to consider whether there exist humanitarian or compassionate grounds to allow the appeal but was of the view that the factors in this case are not such that they would lead to a favourable decision and therefore, the appeal was dismissed on April 14, 1999.
[6] The applicant brought a motion to reopen the case. The Appeal Division dismissed the motion without rendering any reasons.
THE APPLICANT"S POSITION
[7] The applicant submits that the Baker v. M.C.I., [1999] 2 S.C.R. 817 case ought to be applied in the present case.
[8] She submits that a reasonable and well-informed member of the community would find that the Appeal Division"s refusal to allow the appeal to be heard on the merits was inconsistent with subsection 3(c) of theImmigration Act and Baker, and thus constitutes a reversible error.
[9] Furthermore, the applicant submits that the Appeal Division erred in dismissing the motion without giving reasons for doing so.
[10] The applicant submits that the tribunal was biased. Either the Appeal Division disregarded Member D"Ignazio"s rants, erroneously finding them not to manifest a reasonable apprehension of bias, or she adopted the same view, which under Baker taints her decision.
THE RESPONDENT"S POSITION
[11] The respondent submits that the Appeal Division committed no reviewable error in this regard.
[12] It is submitted that the applicant was not entitled to written reasons as to why her motion to reopen the dismissed appeal was denied.
[13] Furthermore, the Appeal Division was not obliged to reopen the appeal. There is no basis upon which a reasonably informed person would consider that the appeal division member demonstrated bias in denying the applicant"s motion.
[14] The respondent submits that the applicant is not entitled to costs. The respondent could not have avoided litigation as the decision not to reopen was not made by the respondent but by an independent tribunal.
ANALYSIS
[15] The Immigration Appeal Division Rules state:
| 32(3)The Appeal Division shall grant a motion to reopen an appeal where there are sufficient reasons why the appeal should be reopened and it is in the interest of justice to do so. |
|
[16] In Handjiev v. Canada (M.C.I.) (February 9, 1999), IMM-1331-98 (F.C.T.D.), Justice Evans examining section 32(3) of the Immigration Appeal Board Rules held:
| In my opinion, when determining whether the facts found constitute "sufficient reasons" for reopening an appeal, the Board is not required to be "correct" in order to avoid committing an error of law. The application of this open-textured phrase obviously requires the Board to consider and weigh all the relevant facts before it, a function that lies within its specialized jurisdiction. It is not the function of the Court on an application for judicial review to reweigh these facts and substitute its view for that of the Board on whether they amount to "sufficient reasons" to reopen. This is a decision entrusted by Parliament to the Board. |
[17] The decision to reopen a case is a discretionary matter entrusted to a specialized tribunal. The member was not under a duty to reopen the case unless the statutory criteria (sufficient reasons) were demonstrated. The applicant, in this case, was not able to convince the member that sufficient reasons exist to reopen the case and the motion was dismissed. This Court will not intervene with this finding, since as Justice Evans explained it is a decision entrusted by Parliament to the Board.
[18] The applicant takes issue with the fact that no reasons where rendered.
[19] I have examined the Immigration Appeal Division Rules. Rule 29 provides that a request made pursuant to subsection 69.4(5) of the Act for written reasons for the disposition of an appeal should be made in writing. Section 69.4 of the Immigration Act specifies that the request must be made within 10 days of the notification of the disposition of the appeal. It is clear that the Division is under no duty to even render written reasons of a disposition of an appeal unless requested within the statutory time limit. There is no mention anywhere in the Act or the Immigration Appeal Division Rules of a duty to render reasons for the disposition of a motion.
[20] The applicant suggests that, pursuant to the Baker case, the Appeal Division had the obligation to give reasons supporting her decision.
[21] The applicant also suggests that the refusal letter dated June 1, 1999 does not mention any reasons but simply that the motion was denied. However, the IAD Hearing Disposition Record, dated June 1, 1999, mentioned:
| N.B. Reasons available on request of parties |
| Sign: O"Hare |
The IAD Hearing Disposition Record was not provided to the applicant with the decision.
[22] The applicant argues that if he had been aware of that, he would have asked for those reasons. Nevertheless, so far, he has not asked for them even though he had received the Tribunal Record for several weeks before the hearing.
[23] The respondent suggests that there is no statutory requirement to give reasons for denying a motion to reopen; the subsection 69.4(5) statutory requirement for the IAD to give reasons applies to section 70 and 71 appeals, not to motion.
[24] The respondent suggests that if the applicant had asked for reasons, he would probably had got them because reasons are available, but he never asked for them.
[25] In Baker, supra, at page 848, Justice L"Heureux-Dubé said:
| In my opinion, it is now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision. The strong arguments demonstrating the advantages of written reasons suggest that, in such as this where the decision has important significance for the individual, when there is a statutory right of appeal. |
| (My emphasis) |
[26] In my view, the case at bar is different; detailed reasons were given by the Appeal Division Member D"Ignazio, and the applicant never asked for reason when he received Ms. O"Hare"s decision on the motion to reopen, this case does not enter in the "certain circumstances" identified by the Supreme Court of Canada.
[27] There is no evidence that Ms. O"Hare did not consider arguments made by the applicant relating to subsection 3(c) of the Immigration Act. But there is evidence that the applicant"s arguments were put before Ms. O"Hare, because they were included in the motion to reopen.
[28] The question relating to the allegation of bias of Member D"Ignazio has been dealt with, given that Justice Sharlow has dismissed the application for leave to commence an application for judicial review of Member D"Ignazio"s decision.
[29] In my view, the Immigration Appeal Division has no obligation to give reasons when rendering a decision on a motion to reopen.
[30] For all those reasons, this application should be dismissed.
[31] Both parties have submitted serious questions.
[32] Counsel for the respondent has proposed:
| Does the Immigration Appeal Division have a duty to give reasons in response to a motion to reopen? |
[33] Counsel for the applicant has proposed:
| Does IAD members have a duty to have prepared written reasons before or concommittent with rendering a decision? |
[34]
Counsel for the respondent has opposed the question suggested by the applicant.
[35] I consider that neither questions suggested by counsel raised a question of general importance, in consequence, no question will be certified.
Pierre Blais
Judge
OTTAWA, ONTARIO
June 15, 2000