Date: 19990917
Docket: IMM-1537-97
B E T W E E N :
JIANG FAN , HUI JIAN ZHONG and
PING DING
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
SECRETARY OF STATE
Respondents
REASONS FOR JUDGMENT
(Delivered from the Bench at Toronto, Ontario,
Wednesday, August 19, 1998)
HUGESSEN J.
[1] In my view, there can simply be no room for any doubt whatever that the present proceedings are an application "in respect of a decision" of a Visa Officer within the meaning of subsection 18.1(2) of the Federal Court Act1.
[2] The applicants" adopted a child in China pursuant to Chinese law and that adoption is recognized in Ontario pursuant to Ontario law. They then applied to sponsor the child as an immigrant to Canada. That application was refused in May of 1996. Almost a year later, the applicants brought the present proceedings without having obtained an extension of time. The proceedings are said to be for declaratory relief to declare the section of the Immigration Regulations, 19782 which defines the word "adopted" as being ultra vires the Parliament of Canada. It was the application of that definition by the Visa Officer which led to his rejection of the application which was made to him. It is significant that the application presently before me also seeks a "declaration" that the applicants are entitled to have the application for sponsored immigration re-assessed without reference to the definition of "adopted".
[3] In my view, the words in section 18.1(2) of the Federal Court Act "in respect of" are very broad and certainly broad enough to encompass the relief which is sought in the present circumstances. It is, accordingly, out of time.
[4] I would add that should I be wrong in that view, and if, by chance, the present application is not one "in respect" of the decision of a Visa Officer, it equally would not be an application within the meaning of subsection 82.1(2) of the Immigration Act3 "with respect to an application to a Visa Officer" and if it is not an application with respect to an application to a Visa Officer, it does not enjoy the exemption from leave provided by subsection (2) of section 82.1 and leave would be required in virtue of section 82.1(1). No leave has been obtained.
[5] Whatever its procedural defects, the application is also wholly without merit. The sum and substance of the applicants" submission is that the definition of "adopted" in section 2 of the Regulations trenches upon exclusive provincial jurisdiction to legislate with regard to adoption. It does not. It is not legislation about adoption, it is legislation about immigration. That legislation is clearly within federal competence under the provisions of section 91 head 25 of the Constitution Act, 1867 ; "Naturalization and Aliens".
[6] Equally, clearly, the provincial power to legislate with regard to immigration granted by section 95 of the Constitution Act4 is, by the very terms of that section, subject to federal paramountcy. I am not, in any event, aware that there is any legislation in Ontario relating to immigration dealing with the subject matter of adoption. Clearly, the Ontario legislation with regard to adoption is not legislation about immigration.
[7] The federal legislation deals with the admission of aliens to Canada. It defines who may and may not be admitted to Canada and for that purpose it uses ordinary language and defines many of the terms that it uses. The definition of "adopted" in section 2 of the Regulations does not alter the civil status of persons to whom it applies. The child of the applicants is no less the applicants" child because he does not meet the definition of "adopted" in the Regulations. He simply is not able to come into Canada as an adopted child. That is not legislation in respect of adoption.
[8] The decision of the Manitoba Court of Appeal relied on by the applicants in the case of Hildebrand and Doerksen5 is of no assistance whatever. That case dealt with a federal Order in Council which purported to remove certain Mennonites in Manitoba from the application of education legislation in that province. There is nothing of the kind here. The definition of "adopted" in the Immigration Regulations does not, I repeat, impact in any way upon the application of provincial legislation. If the applicants" adopted child comes here, or even if he does not come here, he will enjoy, under provincial law, all the rights that flow to an adopted child. He is not, however, entitled to immigrate to Canada as such.
[9] The application will accordingly be dismissed. I will entertain counsel"s submissions with respect to certification of a question.
[10] (Later) Counsel has asked that I certify the substantive question as being of general importance, namely was I right to hold, as I did, that the definition of "adopted" in section 2 of the Regulations does not trench upon provincial legislative jurisdiction. The difficulty I have with that request is that, in the reasons that I have just given, I have found that the application is out of time and should be dismissed for that reason. As I understand the law, I should only certify a question which is going to be determinative of the issues before me. Since the application is out of time, the proposed question would not be determinative and the Court of Appeal would be simply asked to give an obiter opinion as to the correctness of my own obiter opinion. That is not a good practice in my view.
[11] Counsel has also suggested that I might consider now extending time but, there again, it seems to me that on the view I take of the merits of the constitutional question, namely that there are none, I would not be justified in extending time at this stage. In my view there is not an arguable case to be made. Accordingly, I will not certify the question.
"James K. Hugessen"
Judge
__________________| 18.1 (1) ... (2) An application for judicial review in respect of a decision or order of a federal board, commission or other tribunal shall be made within thirty days after the time the decision or order was first communicated by the federal board, commission or other tribunal to the office of the Deputy Attorney General of Canada or to the party directly affected thereby, or within such further time as a judge of the Trial Division may, either before or after the expiration of those thirty days, fix or allow. |
18.1 (1) ... (2) Les demandes de contrôle judiciaire sont à présenter dans les trente jours qui suivent la première communication, par l'office fédéral, de sa décision ou de son ordonnance au bureau du sous-procureur général du Canada ou à la partie concernée, ou dans le délai supplémentaire qu'un juge de la Section de première instance peut, avant ou après l'expiration de ces trente jours, fixer ou accorder.18.1(3) |
| 82.1 (1) ... (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 |
82.1 (1) ... (2) 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. |
| 95. In each Province the Legislature may make Laws in relation to Agriculture in the Province, and to Immigration in to the Province; an it is hereby declared that the Parliament of Canada may from Time to Time make Laws in relation to Agriculture in all or any of the Provinces, and to Immigration into all or any of the Provinces; and any Law of the Legislature of a Province relative to Agriculture or to Immigration shall have effect in and for the Province as long and as far only as it is not repugnant to any Act of the Parliament of Canada. |
5 Regina v. Hildebrand and Doeksen (1919), 31 C.C.C. 418 (Man. C.A.)