Federal Court Decisions

Date: 20020124

Docket: IMM-4235-01

Neutral citation: 2002 FCT 82

BETWEEN:

                                                         JOHN ALAN SUTHERLAND

                                                                                                                                                       Applicant

                                                                                 and

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                  Reasons for Reconsideration and Variation of an Order

MacKay J.

[1]                 By Order dated October 25, 2001 I dealt with an application by the applicant for an extension of time to file an affidavit, and at the same time with an application by the respondent for an order summarily dismissing the applicant's notice of application for judicial review filed on September 5, 2001. Both motions were filed to be dealt with in writing pursuant to Rule 369. By that Order I allowed both motions.

[2]                 Despite the applicant's request that the motion for summary dismissal be dealt with at a hearing with personal appearance, I allowed the motion to dismiss which the respondent had requested be dealt with on written submissions, on the basis that the applicant had also appealed to the Immigration Appeal Board in relation to the same decision as that questioned by his application for judicial review and that Board had jurisdiction pursuant to s-s. 77(3) of the Immigration Act, R.S.C. 1985, c. I-2, as amended, to consider any ground of appeal involving a question of law or fact or mixed law and fact as well as humanitarian or compassionate considerations.

[3]                 Thereafter, on October 31, 2001, the applicant filed a notice of appeal with respect to the Order dated October 25, 2001. Included in the grounds of appeal as set out in that notice is the following:

Learned Trial Judge's Order was contrary to the law and in particular without limiting the generality of the foregoing contrary to section 18.1 of the Federal Court Act, subsection 82.1(2) of the Immigration Act and the Canadian Charter of Rights and Freedoms.

[4]                 On December 4, 2001 the applicant filed a motion for an order extending the time to file a motion to reconsider the Order of October 25, 2001 and an order pursuant to Rule 397 and Rule 399 to vary the terms of that Order to comply with Rule 18(1) of the Federal Court Immigration Rules, 1993. A full motion record was filed for consideration of that motion pursuant to Rule 369. To those representations the respondent filed an application record opposing reconsideration of the matter. The matter was referred to me on December 18, 2001 and by Order dated December 20, 2001 I dismissed the applicant's application, noting in a preamble to that Order:

UPON the Court concluding that opportunity to state a question for consideration by the Court of Appeal pursuant to s. 83(1) of the Immigration Act is not a basis for reconsideration of a motion to refuse leave to proceed by judicial review

[5]                 Thereafter by letter of January 9, 2002 the applicant seeks clarification of the following matters arising from the Order of December 20, 2001:

a)          whether the Court refused to deal with his earlier motion under Rule 399 to vary the terms of the Order of October 25, 2001 to comply with Rule (section) 18(1) of the Federal Court Immigration Rules, 1993, and

b)          whether the Court erred in referring to the earlier motion for which reconsideration was requested as a motion concerning "leave to proceed by judicial review".

[6]                 Having considered the representations by the applicant in his letter of January 9, 2002, and upon review of the record, the Court concludes that it did overlook the applicant's representation to vary the order of October 25 to accord with the applicant's interpretation of section 18(1) of the Federal Court Immigration Rules, 1993. That provision of the Rules requires:

A judge shall not render judgment in respect of an application for judicial review without first giving the parties an opportunity to make a request that the judge certify that a serious question of general importance as contemplated by section 83 of the Act is involved.

[7]            I have reviewed the respondent's submissions made in regard to her earlier opposition to reconsideration that is, that Rule 18(1) does not deal with circumstances of this case where the application for judicial review was dismissed on summary grounds rather than on the merits. I am persuaded there is a serious question of general importance raised by the applicant that is, whether the Court in finally disposing of the application for judicial review, by dismissing it, is required to provide an opportunity for the parties to propose certification of a serious question of general importance, pursuant to s-s. 83(1) of the Immigration Act.

[7]                 I further note that the Court by its Order of December 20, 2001, erred in referring to the application as one for leave and for judicial review. The application then before the Court was for reconsideration of the Order of October 25, 2001. That Order did not refer to an application for leave and for judicial review, but to an application for judicial review for which leave was not required.

[8]                 This Court, having erred in the Order of December 20, 2001, in the interests of justice now varies the terms of that Order, in effect reconsidering the terms of the Order of October 25, 2001, by

(i)          certifying the following question pursuant to s-s. 83(1) of the Immigration Act:

Is an applicant's right to apply to the Federal Court for judicial review of a visa officer's decision a substantive right for which the applicant is entitled to a full hearing by the Court on the merits of the application without regard to any other rights the applicant may have before the Immigration Appeal Division?

(ii)         deleting the paragraph in the recitals of the December 20, 2001 which refers to the matter before the Court as an application for leave and for judicial review.

[9]                 In other respects the Order of December 20, 2001 is maintained so that the application for reconsideration, otherwise than as here noted, is dismissed.

[10]            I trust that in effect this leaves open for consideration by the Court of Appeal the serious question raised by the applicant, that is, whether in the circumstances of this case, summary dismissal of the application for judicial review without a hearing is warranted where the applicant has also appealed to the Immigration Appeal Division the decision that is raised as the subject of the application for judicial review.

                                                                                                                              (signed) W. Andrew MacKay

                                                                                                              ___________________________

                                                                                                                                                           JUDGE

OTTAWA, Ontario

January 24, 2002.