Date: 19980403
Docket: IMM-1806-97
Ottawa, Ontario, the 3rd day of April 1998
Present: the Honourable Mr. Justice Pinard
Between:
MARINA LIPATOVA
OLESYA LIPATOVA
ALEXANDR LIPATOV
Applicants
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
ORDER
The application for judicial review of the decision dated April 21, 1997 by a delegate of the Minister of Citizenship and Immigration that the applicants (a mother and her two children) had not established that a ministerial exemption was justified in their case, is dismissed.
YVON PINARD
JUDGE
Certified true translation
M. Iveson
Date: 19980403
Docket: IMM-1806-97
Between:
MARINA LIPATOVA
OLESYA LIPATOVA
ALEXANDR LIPATOV
Applicants
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of a decision dated April 21, 1997 by a delegate of the Minister of Citizenship and Immigration, pursuant to subsection 114(2) of the Immigration Act, that the applicants (a mother and her two children) had not established that a ministerial exemption was justified in their case.
[2] The applicants applied for a ministerial exemption under subsection 114(2) of the Immigration Act on October 31, 1996, and their application was based on the marriage of the principal applicant, the mother, to Igor Kirilyuk. Kirilyuk had previously claimed and been granted refugee status based on his fear of persecution because of his sexual orientation.
[3] The heavy burden of proof borne by the applicants in the instant case must be mentioned. In Shah v. Canada (M.E.I.) (1994), 170 N.R. 238, at pages 239-40, the Federal Court of Appeal stated the following about the duty of an immigration officer to act fairly in exercising the discretionary power under subsection 114(2) of the Immigration Act:
| In a case such as this one the applicant does not have a "case to meet" of which he must be given notice; rather it is for him to persuade the decision-maker that he should be given exceptional treatment and exempted from the general requirements of the law. No hearing need be held and no reasons need be given. The officer is not required to put before the applicant any tentative conclusions she may be drawing from the material before her, not even as to apparent contradictions that concern her. Of course, if she is going to rely on extrinsic evidence, not brought forward by the applicant, she must give him a chance to respond to such evidence [See Muliadi v. Minister of Employment and Immigration (1986), 66 N.R. 8; 18 Admin. L.R. 243 (F.C.A.)]. In the case of perceived contradictions, however, the failure to draw them specifically to the applicant's attention may go to the weight that should later be attached to them but does not affect the fairness of the decision. Any dicta arguably to the contrary in H.K. (An Infant), Re, [1967] 2 Q.B. 617; Kaur v. Minister of Employment and Immigration (1987), 5 Imm. L.R. (2d) 148 (F.C.T.D.), and Ramoutar v. Minister of Employment and Immigration, [1993] 3 F.C. 370; 65 F.T.R. 32 (T.D.), should be read in this light. |
| . . . |
| To succeed in his attack here the applicant must show that the decision-maker erred in law, proceeded on some wrong or improper principle or acted in bad faith. [See Vidal and Dadwah v. Minister of Employment and Immigration (1991), 41 F.T.R. 118; 13 Imm. L.R. (2d) 123 (T.D.). And generally as to the standard of review of statutory discretions see Fraser (D.R.) & Co. v. Minister of National Revenue, [1949] A.C. 24 (P.C.).] It is a heavy burden and the applicant has not met it. . . . |
[4] The Federal Court of Appeal thus subscribed to the onerous standard developed by Strayer J.A. in Vidal v. Canada (M.E.I.) (1991), 41 F.T.R. 118. He described this burden as follows at page 122:
| The Court should not interfere with the exercise of discretion by an officer or body authorized by statute to exercise that discretion unless it is clear that the discretion has been exercised in bad faith or on grounds unrelated to the purposes for which the discretion is granted [See e.g., Boulis v. Minister of Employment and Immigration, [1974] S.C.R. 875, at 877.]. |
| (Emphasis added.) |
[5] In Williams v. Canada (M.C.I.), [1997] 2 F.C. 646, at pages 672-73, referring to the specific case of a decision for which no reasons are given, the Court of Appeal described the only instance in which judicial review of such a decision would be possible as follows:
| We are frequently told that the principles of fundamental justice are to be found in the basic tenets of our legal system. In my view those basic tenets have never imposed a duty on tribunals to give reasons where a statute has not specifically so provided [endnote omitted]. This is particularly the case where the decision in question is essentially discretionary [Shah v. Minister of Employment and Immigration (1994), 170 N.R. 238 (F.C.A.), at p. 239.]. We have been referred to no authoritative jurisprudence relevant to the particular issues here which seriously questions these principles. |
| What has been recognized is that where a discretionary tribunal decision is either, on its face, perverse, or where there is evidence of facts being before the tribunal which manifestly required a different result or which were irrelevant yet apparently determinative of the result, then a court may be obliged to conclude that, in the absence of reasons which might have explained how the result is indeed rational or how certain factors were taken into account but rejected, the decision should be set aside for one of the established grounds for judicial review such as error of law, bad faith, consideration of irrelevant factors, failure to consider relevant factors, etc. [endnote omitted]. In such cases the tribunal decision is set aside not because of a lack of reasons per se but because in the absence of reasons it is not possible to overcome the inference of perversity or error derived from the result or the surrounding circumstances of the decision. . . . |
[6] In the instant case, the chronology of facts in the applicants" record establishes that the principal applicant met her husband in October 1995 and that they began living together in April 1996 and married in August 1996. During this same period, Mr. Kirilyuk testified before the Refugee Division in respect of his own claim for refugee status in March 1996; in May 1996, the Refugee Division granted him refugee status based on his fear of persecution because of his sexual orientation, as it found that homosexuals have reason to fear persecution in Latvia. The principal applicant, who had herself claimed refugee status with her former husband and her two children on March 6, 1995, had her claim heard on May 30, 1996. Following this hearing, an adverse decision was rendered on October 2, 1996.
[7] The following note appears at page 3 of the certified record:
| Subject, according to PIF & Refugee claim - she is married with ID 3122-5656 - Tsymbal Sergei. No mention about divorce in application - only - separated from Boyfriend [sic] -([TRANSLATION] spouse) with whom they entered Canada R326 together & claimed CR. |
[8] Moreover, the following observations are found at page 4 of the certified record:
| 12FEB97 - 700 FEES PAID FOR SELF AND TWO CHILDREN. SUBJECT AND CHILDREN APPEAR TO HAVE ENTERED CANADA WITH SERGEY TSYMBAL (3122-5656). SUBJECT SAYS MARRIAGE TO SPONSOR IGOR KIRILYUK (3056-1957) IS HER FIRST. MARRIED ON 21JUN96, DEEMED NOT CR ON 03OCT96. SPONSOR WAS LANDED AS CR ON 06FEB97. CONDITIONAL DEPARTURE ORDER ON SYSTEM FOR SUBJECT DAUGHTER IS M5/S1. MARRIAGE WAS BY JUSTICE OF THE PEACE IN ONTARIO RATHER THAN QUEBEC. FEEL THIS CASE WARRANTS FURTHER INVESTIGATION. REFERRED TO CIC MONTREAL. LC/H CASE REFERRED TO CIC MONTREAL. 2948 FROM B0974 KIT [TRANSLATION] RECEIVED AT CIC MTL 2948 ON 20 FEB 97 IND 10 |
[9] In view of all these facts, I consider it entirely possible that the reason why the Minister"s delegate did not grant the requested ministerial exemption was simply that the applicant was not credible or was not in good faith, and that there was no discrimination whatsoever. I am accordingly of the view that the applicants have not discharged the heavy burden upon them in the circumstances, especially the burden of showing, as set out in Williams , supra, that there were facts in the instant case ". . . which manifestly required a different result or which were irrelevant yet apparently determinative of the result . . . ."
[10] The application for judicial review is accordingly dismissed. Under the circumstances, the applicant has not established the necessary factual basis for the only question submitted for certification, which related essentially to discrimination. There is accordingly no question to certify.
YVON PINARD
JUDGE
OTTAWA, ONTARIO
April 3, 1998
Certified true translation
M. Iveson
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-1806-97
STYLE OF CAUSE: MARINA LIPATOVA ET AL. V. MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: APRIL 1, 1998
REASONS FOR ORDER BY THE HONOURABLE MR. JUSTICE PINARD
DATED APRIL 3, 1998
APPEARANCES:
PAUL FRÉCHETTE FOR THE APPLICANTS
ODETTE BOUCHARD FOR THE RESPONDENT
SOLICITORS OF RECORD:
PAUL FRÉCHETTE FOR THE APPLICANTS
MONTRÉAL, QUEBEC
George Thomson FOR THE RESPONDENT
Deputy Attorney General of Canada