Date: 20180302
Docket: IMM-3671-17
Citation: 2018 FC 238
Ottawa, Ontario, March 2, 2018
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Applicant
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and
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VAN BAO CHUNG
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
This is the judicial review of a decision by the Immigration Appeal Division [IAD] allowing the appeal of a visa officer’s refusal of the permanent residence application of the Respondent’s wife. The IAD found the marriage to be genuine.
The real issue in this case is the IAD’s refusal, prior to the hearing date, to grant the Minister a postponement of the hearing due to a lack of available hearing officers.
II.
Facts
[2]
The governing rule for adjournments is contained in the Immigration Appeal Division Rules, SOR/2002-230 [IADR], in section 48:
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[3]
These Rules have been supplemented by the Chairperson Guideline 6: Scheduling and Changing the Date or Time of a Proceeding, Guidelines Issued by the Chairperson, Pursuant to Paragraph 159(1)(h) of the Immigration and Refugee Protection Act, SC 2001, c 27. The applicable provisions are as follows:
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Section 162(2) of the Immigration and Refugee Protection Act [IRPA] is tangentially related:
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[4]
The Respondent is a Canadian citizen. Ms. Tran, the Respondent’s wife, is a citizen of Vietnam. For purposes of this decision, the details of their meeting, subsequent contacts, and marriage are not necessary. They married in late 2012 and the Respondent applied to sponsor his wife as a permanent resident.
[5]
Following a procedural fairness letter and interview of Ms. Tran, the visa was denied because the officer was not satisfied as to the genuineness of the marriage.
The Respondent appealed the refusal to the IAD.
[6]
The hearing of the appeal was set for July 18, 2017.
[7]
On July 7, 2017, the Applicant Minister determined that there were no hearing officers available to attend this hearing and requested that the hearing date be postponed for that reason. The Applicant requested that the hearing be rescheduled to sometime after August 11, 2017.
[8]
The IAD denied the postponement, citing the IAD decision of Ahmad v Canada (Citizenship and Immigration), 2017 CanLII 45644, 2017 CarswellNat 3395 (WL Can) (Imm & Ref Bd (App Div)) which, a few days earlier, had similarly denied a postponement requested on the ground that there were no hearing officers available. The IAD went on to cite the factors in Rule 48(4) of the IADR and section 162(2) of IRPA and concluded that lack of resources were not an exceptional circumstance warranting a postponement.
[9]
The hearing proceeded and the decision, having made reference to the denied postponement, concluded that the marriage was genuine and granted the visa application.
III.
Analysis
A.
Standard of Review
[10]
As with many judicial reviews, the shifting sands of standard of review almost overcome the real issues in dispute.
[11]
As recognized in Chi v Canada (Public Safety and Emergency Preparedness), 2017 FC 641, 280 ACWS (3d) 828, there is mixed jurisprudence on whether in the case of adjournment the standard is reasonableness because the decision is discretionary, or correctness because an unreasonable decision creates a breach of procedural fairness.
[12]
In my view, there is little to be served by dissecting this “how many angels can dance on the head of a pin”
-type issue. This case is not amenable to an analysis of the sharp divide between the two standards. The decision at issue cannot be either unreasonable or unfair – one need not prove which is the greater evil.
B.
Decision to be judicially reviewed
[13]
The Respondent argued that the decision at issue is the postponement decision and therefore the application for judicial review is outside the time required under section 72(2)(b) of IRPA. The Applicant countered that the postponement decision is interlocutory and therefore the decision amenable to judicial review is the final decision on the merits of the visa decision and that postponement is an issue which can be raised in that decision.
[14]
I agree in principle with the Applicant. The postponement decision was interlocutory, and, barring special circumstances, such decisions are not open to judicial review: Canada (Minister of Public Safety and Emergency Preparedness) v Kahlon, 2005 FC 1000, [2006] 3 FCR 493; Szczecka v Canada (Minister of Employment and Immigration) (1993), 116 DLR (4th) 333, 170 NR 58 (FCA). This is driven in part by judicial economy to avoid multiple judicial reviews during the process of an administrative matter, and in part by the requirement that the interlocutory decision has had more than an academic impact, which is usually only discernable after a decision on the merits.
C.
Postponement Decision
[15]
The Applicant claimed that past practice has been for the IAD to accommodate the reduced availability of hearing officers during winter and summer holiday periods by scheduling a reduced number of hearings and providing more flexibility in granting adjournments during these periods. However, the Applicant does not assert that this practice and reliance on it reach the level of a “legitimate expectation”
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[16]
The Applicant also argued that the IAD focused almost exclusively on administrative convenience and failed to consider a number of Rule 48(4) factors, including that the Minister is not consulted in advance about dates, that he has no control over the case load, that the request was unopposed, timely, and for a short period, and that the Minister was not responsible for previous delays. The Applicant also points out that there is a significant public interest in not letting visa applications like this proceed unopposed and without scrutiny for fraud or other adverse effects on the immigration system. In this regard, the Minister points to the fact that there were some unexplained financial dealings which could be challenged and therefore the absence of the Minister’s representation could have made a difference in the end result.
[17]
This last point is a strong one and one of the factors a Court must consider in assessing the postponement decision. I note, however, that it is a ground for possible challenge to the visa application but there is no certainty that it would succeed. Therefore there is no reasonable basis for holding that the postponement decision facilitated a fraud or some adverse effect on the immigration system.
[18]
In order for the Applicant to succeed here, it must show that not only did it claim not to have available resources or hearing officers, but also that it had no reasonable alternative other than postponement.
[19]
There is no evidence that on the hearing date, there were no hearing officers available for other scheduled cases. If some hearing officers were available but insufficient for all scheduled cases, it would be incumbent on the Minister to explain why the present case was selected as one for which there was no hearing officer.
[20]
There was no evidence of how the Minister tried to manage the resources issue. It would not be the Court’s role to second-guess the reasonable choices made by management, if there had been evidence that reasonable choices were made. There was not.
[21]
Absent this type of evidence of justification for the Minister’s action, the Applicant cannot show either unreasonableness or unfairness.
IV.
Conclusion
[22]
For these reasons, this judicial review will be dismissed.
[23]
There is no question for certification.
JUDGMENT in IMM-3671-17
THIS COURT’S JUDGMENT is that the application for judicial review is dismissed.
"Michael L. Phelan"
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET:
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IMM-3671-17
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STYLE OF CAUSE:
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION v VAN BAO CHUNG
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PLACE OF HEARING:
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Toronto, Ontario
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DATE OF HEARING:
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February 14, 2018
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JUDGMENT AND REASONS:
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PHELAN J.
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DATED:
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march 2, 2018
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APPEARANCES:
Manuel Mendelzon
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For The Applicant
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Nicolas Pham
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For The Respondent
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SOLICITORS OF RECORD:
Attorney General of Canada
Toronto, Ontario
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For The Applicant
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Nicolas Pham & Associates
Barristers and Solicitors
Toronto, Ontario
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For The Respondent
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