Date: 20040220
Docket: IMM-6676-02
Citation: 2004 FC 254
BETWEEN:
MIAJAN ARYAN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.:
INTRODUCTION
[1] This judicial review application concerns the exercise by the Immigration Appeal Division of the Immigration and Refugee Board (the tribunal) of its equitable jurisdiction in the case of a sponsor appeal under paragraph 77(3)(b) of the now repealed Immigration Act (the former Act) which read:
| (3) Appeals by sponsors - Subject to subsections (3.01) and (3.1), a Canadian citizen or permanent resident who has sponsored an application for landing that is refused pursuant to subsection (1) may appeal to the Appeal Division on either or both of the following grounds:(a) on any ground of appeal that involves a question of law or fact, or mixed law and fact; and (b) on the ground that there exist compassionate or humanitarian considerations that warrant the granting of special relief. (emphasis mine) |
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(3) Appel interjetépar un répondant - S'il est citoyen canadien ou résident permanent, le répondant peut, sous réserve des paragraphes (3.01) et (3.1), en appeler devant la section d'appel en invoquant les moyens suivants : a) question de droit, de fait ou mixte ; b) raisons d'ordre humanitaire justifiant l'octroi d'une mesure spéciale. (je souligne)
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[2] This case also involves a Charter challenge under section 7 of the Charter of Rights and Freedoms (the Charter) to paragraph 5(2)(g) of the former Regulations, the Immigration Regulations, 1978, as amended, (the former Regulations).
BACKGROUND
[3] On August 26, 2002, the tribunal dismissed the appeal of Miajan Aryan from a December 28, 2001 decision by a visa officer that he was ineligible to sponsor his wife, Khalida Payman, whom he married by proxy in that year and who since 1992 has been living in a refugee camp in Peshawar, Pakistan. She is a citizen of Afghanistan. She is now 20 years of age.
[4] Miajan Aryan became a Canadian citizen after landing in Canada in 1989 as a government sponsored refugee having fled his native Afghanistan in 1986. He is now 41 years of age.
[5] The tribunal decided the visa officer's refusal was in accordance to law and "there do not exist compassionate or humanitarian considerations that warrant the granting of special relief". The applicant does not challenge the tribunal's finding the visa officer's decision was according to law but challenges the way in which the tribunal exercised its discretionary equitable jurisdiction.
[6] The reason the visa officer found the applicant ineligible to sponsor his wife was not because his marriage to Khalida Payman was not bona fide but because he was in default of the obligations he assumed in his undertaking to the Minister when he sponsored his parents who were landed in Canada in April of 1993 that they would not need social assistance or welfare.
[7] Paragraph 5(2)(g) of the former Regulations makes a person ineligible to sponsor while that person is in default under a previous sponsorship. It read:
| (2) Subject to subsections (6) and (7) and section 5.1, a person who is a Canadian citizen or permanent resident and who meets the following requirements is authorized to sponsor the application for landing of any member of the family class: ... (g) at the date of giving the undertaking, the person is not in default in respect of any obligations that the person has assumed under any other undertaking given or co-signed with respect to any other person and the other person's dependants or in respect of a loan made under section 45;
[emphasis mine] |
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(2) Sous réserve des paragraphes (6) et (7) et de l'article 5.1, est autorisé à parrainer la demande d'établissement d'un parent tout citoyen canadien ou résident permanent qui satisfait aux exigences suivantes : ... g) à la date de son engagement, il n'a manqué à aucune de ses obligations contractées aux termes de tout autre engagement qu'il a donné ou cosigné à l'égard d'une personne et des personnes à la charge de celui-ci ou aux termes d'un prêt consenti en vertu de l'article 45 ;
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[8] The test adopted by the tribunal for the exercise of its equitable jurisdiction under paragraph 77(3)(b) of the former Act is based on the case of Chirwa v. Canada (Minister of Manpower and Immigration) (1970), 4 I.A.C. 33, a previous decision of the Appeal Division. That test is:
[T]hose facts, established by the evidence, which would excite in a reasonable man in a civilized community a desire to relieve the misfortunes of another - so long as these misfortunes "warrant the granting of special relief" under the provisions of the Immigration Act.
[9] As mentioned, this judicial review application also involves a Charter challenge to paragraph 5(2)(g) of the former Regulations. By decision dated December 11, 2002, the tribunal dismissed that challenge.
[10] At this stage of these reasons, I do not propose to analyse the tribunal's Charter ruling except to state how that challenge arose because it will help, in my view, assess the scope and validity of the exercise of the tribunal's equitable jurisdiction.
[11] Before the tribunal, the applicant asserts he indicated he was prepared to negotiate an agreement with social services in Ontario whereby he would agree to repay the money received by his parents on welfare at the rate of $500.00 per month but Ontario refused stating its requirement to be payment in full of his outstanding debt, then in excess of $60,000.00, an amount which he testified and which the tribunal accepted he could not pay in full not even by way of a bank loan which he attempted to obtain but was refused. The Minister's representative questioned whether the applicant had made serious efforts to obtain financing to pay off the $60,000 debt and pointed to the car loan credit he had already received.
[12] Ontario's view that the terms of paragraph 5(2)(g) of the former Regulations require payment in full of the outstanding debt before a sponsor can embark upon a second sponsorship is shared by counsel for the Minister.
[13] That view may be supported by the change effected under the new Immigration and Refugee Protection Regulations made pursuant to the Immigration and Refugee Protection Act (the new Regulations).
[14] Section 135 of the new Regulations stipulates that default under a sponsorship agreement ends "when the sponsor reimburses the government concerned in full or in accordance with an agreement with that government, for amounts paid by it".
[15] As was pointed out by both counsel, this provision in the new Regulations is of no benefit to the applicant because of the transitional provision in section 192 of the new Regulations. His rights and obligations are to be assessed under the old regime.
[16] In addition, both counsel were in agreement on the scope of the tribunal's discretion under its paragraph 77(3)(b) equitable jurisdiction.
[17] Both counsel submitted the tribunal did have the power to allow the applicant's sponsorship to go forward on humanitarian grounds notwithstanding he was in default of his undertaking and had an outstanding debt.
[18] However, what the tribunal could not do, according to both of them, was to allow his appeal with a condition attached to it that he execute a repayment schedule. The decision the tribunal was required to make was a complete waiver of the amount owing and nothing else.
[19] The practical effect of this view, if accepted, is to leave the Minister, without any leverage to compel the repayment of the debt which may not be paid off voluntarily. The tribunal found such would be the case here.
[20] As a result of this interpretation, counsel for the applicant argued before the tribunal, in the particular circumstances of this case, the application of paragraph 5(2)(g) of the former Regulations was not in accordance with the principles of fundamental justice under section 7 of the Charter because its application would leave the applicant permanently without access to his wife. Counsel argued the tribunal could fashion a Charter remedy under section 24 of the Charter to cure this Charter breach by ordering what the applicant says he suggested but had been refused by Ontario - monthly payments of $500.00 and allowing his sponsorship of his wife to proceed forthwith.
ADDITIONAL FACTS
[21] In order to provide an appropriate understanding to the tribunal's key findings, I outline some additional material facts which are not controverted, noting the tribunal made no adverse credibility findings against the applicant who testified before it:
1. After landing in Canada in 1989, Mr. Aryan, who had received medical training in Russia before fleeing Afghanistan in 1986, found full time work in Canada from 1989 to mid 1991 as an assistant manager at a Mac's Milk store in Toronto earning $20,000 per annum but he was laid off in 1991 when the store closed;
2. While on unemployment insurance, and on the advice of the UI officer, he took a six-month course at Centennial College training as a health care aide and then found work later that year (1991) as a health care worker;
3. In September of 1992 he enrolled as a special student at the University of Toronto (U of T) aiming to earn a bachelor of science which he did in 1996 after receiving certain credits for his studies in Russia where he had to travel to in 1995 in order to obtain his course transcripts. During his studies, he continued to work as a health care worker;
4. His parents were landed in Canada in April of 1993 but shortly thereafter they unexpectedly became ill (his father suffered from high blood pressure; his mother is arthritic; both later suffered strokes). With the applicant's assistance they made application under the Ontario Disability Support Plan and received $1,000 to $1,200 per month from August 1, 1993. It was agreed by Ontario Social Services with Mr. Aryan he would support his parents providing them $200 per month based on his income of $12,000 per year, (he was working part time during his attendance at U of T) an amount which was deducted from his parents' social assistance benefits.
5. His undertaking to the Minister ended in 1998. The applicant continues to support his parents increasing funding to $1,000 per month; his parents are still the disability support plan.
6. The record indicates his parents needed a van to get around and this was purchased in 1994 by the applicant paying $2,000 down and the rest ($28,000) on installments which he has paid off. For his own needs, he purchased in 1995 a used 1991 Pontiac paying $700.
7. His parents, since landing, have resided with their daughter in a rented bungalow, splitting the rent. She drives the van to get her parents about.
8. In 1996 after obtaining a post-graduate scholarship Mr. Aryan enrolled in a Masters degree program in Education and earned a degree in 1998. He continued to work throughout his studies.
9. He currently works at two jobs, one as a staff instructor at a long term care centre and the other, during the evenings, as an instructor in a health care support college. His current annual income is in the neighbourhood of $75,000.
10. The applicant does not own any real estate, lives in a one-bedroom rented apartment. He is paying $300 to $400 per month to his wife in Pakistan and is paying off accumulated student loans, now totalling $40,000, at the rate of $516 per month. He has total assets of $62,000 (car, RRSP, furniture, equipment and bank account).
THE TRIBUNAL'S DECISION ON ITS EQUITABLE JURISDICTION
[22] With these facts as background, the tribunal made the following findings:
1. I find that the appellant was reluctant to acknowledge his financial obligations to Canadian and Provincial government [sic] under this undertaking. I find the appellant is in default under this undertaking in the amount of $60,000.
2. The appellant made no effort to reimburse the province of Ontario for the social assistance payments received by his parents during the term of his undertaking until after his application to sponsor his wife was refused on December 28, 2001. The appellant indicated that he made an inquiry as to the amount owing and was told that the province of Ontario required payment in full. The appellant
testified that he did not discuss a monthly payment schedule.
[emphasis mine]
[23] The tribunal then dealt with the applicant's testimony on his attempt to obtain a loan from the bank to pay off in full his outstanding obligations under his undertaking, financing that was denied him as stated by the tribunal because of his poor credit rating due to a cancelled credit card and late payments he had made on other financial obligations while a student.
[24] The tribunal quoted some cross-examination by the Minister's counsel contrasting his success in obtaining a $30,000 loan for the van while he was a student on an income substantially less than his current income. It quoted the Minister's submission that the appellant had not established that he had made serious efforts to obtain financing to repay the $60,000 owed. The tribunal concluded:
Given the appellant's past indifference and disregard for his undertaking, I am not persuaded on a balance of probabilities that the appellant will voluntarily pay off the outstanding amount owing to the province of Ontario, if this appeal is successful.
(emphasis mine)
[25] The tribunal next analysed his marriage to Khalida Aryan who is a Tajic and Shia Muslim. Her uncle, grandfather and aunt have lived in Canada for about ten years; the families knew each another in Kabul; her father is the applicant's father's cousin. The tribunal recited Mr. Aryan's testimony about the living conditions in her refugee camp in Peshawar. It made this finding:
I find that the separation of the appellant and his wife is emotionally and physically stressful to both of them. I am persuaded that the applicant and her family would not choose to remain in Peshawar, Pakistan, if they felt it was safe for them to return to Kabul, Afghanistan at this time. I also find, based on the evidence presented, which was not challenged by Minister's counsel, that conditions in Peshawar, Pakistan for Afghani refugees are poor. It is difficult and expensive for the appellant to travel to Peshawar, Pakistan and, due to his employment, he could at best make one trip per year during his vacation period. I find that both the appellant and the applicant are experiencing some hardship as a result of their separation. There are positive compassionate and humanitarian factors that exist in this case. (emphasis mine)
[26] After this finding, the tribunal reached the following conclusion:
Balanced against these positive compassionate and humanitarian factors is the extent of the default under the appellant's undertaking given to sponsor his parents to Canada. The undertaking is one cornerstone of a sponsorship application. The extent of the default in this case is large. However, the appellant was in the expensive process of upgrading his educational and employment skills during the five-year period of his undertaking. It is difficult to see how the appellant could have supported his parents without government assistance and improved his education and future employment prospects at the same time. I find that the appellant is in a financial position to make $500 monthly payments towards the default. The evidence presented indicates that he is being asked for payment in full. I am not persuaded on a balance of probabilities that the appellant is able at this time to pay off the entire amount owing. At the same time he is now 40 years old and has already delayed marrying and starting a family for a considerable period of time. (emphasis mine)
Further emotional hardship is entailed in delaying the sponsorship application pending payment in full. On the other hand, I find that allowing the sponsorship application to proceed without payment of the amount in default, will likely result in the non-payment of any of the $60,000 owing under the prior undertaking.
[27] The tribunal then cited the Chirwa decision and held:
Given the extent of the amount owing under the undertaking in this case, which I find will not be recovered if the appeal is allowed, I am not persuaded that the positive compassionate and humanitarian considerations that exist in this case are sufficient to warrant the granting of special relief.
ANALYSIS
a) Standard of Review
[28] Clearly when the tribunal exercises its power under paragraph 77(3)(b) it renders a discretionary decision.
[29] When a discretionary decision turns on a finding of fact, that finding must be tested against the provisions of paragraph 18.1(4)(d) of the Federal Court Act where a court can strike it down if "based on an erroneous finding of fact that is made in a perverse or capricious manner or without regard for the material before it."
[30] I also cite what the Supreme Court of Canada held in Suresh v. Canada(MCI), [2002] 1 R.C.S. 3 at 23 when dealing with the standard which should be adopted in respect of a Minister's decision that a refugee constitutes a danger to the security of Canada. The Supreme Court held such a discretionary decision should not be set aside unless patently unreasonable "in the sense that it was made arbitrarily or in bad faith, it cannot be supported on the evidence, or the Minister failed to consider the appropriate factors" (emphasis mine).
[31] I hasten to observe that the Supreme Court of Canada's formulation in Suresh, supra, of the content of patent unreasonableness identifying the grounds it enumerated warranting interference with the Minister's discretionary decision is remarkably close to the traditional administrative law grounds warranting the setting aside of a discretionary decision as expressed by the Supreme Court of Canada in Maple Lodge Farms v. Government of Canada and the Canadian Chicken Marketing Agency, [1982] 2 S.C.R. 2, grounds representing an error of law under section 18.1(4)(c) of the Federal Court Act. In Maple Lodge Farms, supra, Justice McIntyre, on behalf of the Court, stated the following at page 7 concerning the Court's role in the exercise of statutory discretion:
... It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere. ...
[32] The Supreme Court of Canada's decision in Baker v. M.C.I., [1999] 2 S.C.R. 817 set a standard of review of reasonableness simpliciter when examining the substance or merit of an immigration officer's discretionary decision on an application for a section 114 former Immigration Act relief on humanitarian and compassionate grounds (see also Justice L'Heureux-Dubé's discussion in, Baker, supra, at paragraphs 55 and 56 on the fusion into the "pragmatic and functional approach" for errors of law of discretionary decisions).
[33] I note that Suresh, Baker, Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 and this case are all cases involving decisions under the Immigration Act. In the cases decided by the Supreme Court of Canada, that Court analysed the four factors going into the makeup of the appropriate standard of review. In the circumstances, it is superfluous for me to engage in a similar analysis; it is thus appropriate simply to acknowledge the standard of review in respect of different aspects of the tribunal's decision which relate to the Court's power under section 18.1 of the Federal Court Act.
[34] Before closing on the subject of the standard of review, I mention the Supreme Court of Canada's recent decision in Chieu v. Canada (M.C.I.), [2002] 1 S.C.R. 84 which involved a review of an Immigration Appeal Division discretionary decision exercised under subsection 70(1) of the former Act on the removal of a permanent resident where the tribunal "having regard to all of the circumstances of the case" could determine that person should not be removed from Canada by staying the removal order.
[35] The tribunal, in that case, had decided it could take into account, but assigned little weight, as a factor in the exercise of its discretion to stay the removal, the potential foreign hardship in the country where the permanent resident would be removed to.
[36] In respect of that issue, the Supreme Court of Canada decided the standard of review was correctness, essentially, as I see it, because the scope of its discretionary decision involved a legal issue (classified by Justice Iacobucci as a jurisdictional issue).
[37] In closing, Justice Iacobucci stated at page 101, paragraph 26:
However, it may well be that a more deferential standard would apply to decisions of the I.A.D. in other context, particularly if the issue under review were to fall squarely within the specialized expertise of the Board.
b) Principles
[38] I return to Chieu, supra, to note the recognition signalled by Justice Iacobucci of the Court's past approval of a broad approach to paragraph 70(1)(b) of the former Act which in my view is also applicable when dealing with the companion provision in 77(3)(b) of the former Act.
[39] He wrote at paragraph 39 of his reasons:
¶ 39 Indeed, this Court has long approved of a broad approach to s. 70(1)(b) (or its predecessor legislation). Martland J. stated in Grillas v. Minister of Manpower and Immigration, [1972] S.C.R. 577, at p. 590 (dissenting, but not on this point) that, "[t]he intention of the Act was to enable the Board, in certain circumstances, to ameliorate the lot of an appellant against whom a deportation order had lawfully been made." In the same case, Abbott J. stated, for the majority, at p. 581:
This somewhat unusual section [s. 15, the provisions of which are now contained in ss. 70(1)(b) and 70(3)(b)] gives the Board broad discretionary powers to allow a person to remain in Canada who is inadmissible under the Immigration Act. Before the section was enacted, such power was vested solely in the executive branch of Government.
Whether the discretion to be exercised by the Board under s. 15 be described as equitable, administrative or political, it is not in the strict sense a judicial discretion, but it would appear it should be exercised essentially upon humanitarian grounds.
This view was confirmed by Sopinka J., for the Court, in Chiarelli, supra, at p. 737, where he stated that s. 70(1)(b) "allows for clemency from deportation on compassionate grounds". In the I.R.B. publication, Removal Order Appeals (1999), at p. 9-2, it is stated that s. 70(1)(b) "contemplates the realization of a valid social objective, namely, relief from the hardship that may be caused by the [page108] pure operation of the law relating to removal". I agree.
[40] I am reminded of the approach to findings of fact mandated by the Supreme Court of Canada's decision in Canadian Union of Public Employees, Local 301 v. Montreal (City) [1997] 1 S.C.R. 793 at 844 where Justice L'Heureuse-Dubé stated the following at paragraph 85:
¶ 85 We must remember that the standard of review on the factual findings of an administrative tribunal is an extremely deferent one: Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, per La Forest J., at pp. 849 and 852. Courts must not revisit the facts or weigh the evidence. Only where the evidence viewed reasonably is incapable of supporting the tribunal's findings will a fact finding be patently unreasonable. An example is the allegation in this case, viz. that there is no evidence at all for a significant element of the tribunal's decision: see Toronto Board of Education, supra, at para. 48, per Cory J.; Lester, supra, at p. 669, per McLachlin J. Such a determination may well be made without an in-depth examination of the record: National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324, per Gonthier J., at p. 1370.
[41] As stated by Justice Décary in Aguebor v. Minister of Employment and Immigration (1993) 160 N.R. 315 (F.C.A.) various Divisions of the Immigration and Refugee Board have complete jurisdiction to draw necessary inferences if reasonably drawn and supported by the evidence, in which case, the Courts cannot intervene. He wrote at page 316:
¶ 4 There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. In Giron, the Court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn. In this case, the appellant has not discharged this burden.
c) Conclusions
[42] After reviewing the transcript of the hearings and the tribunal's decision and considering the arguments from both parties, I have concluded this judicial review application must be allowed.
[43] In my view, one of the central findings of the tribunal was made by misapprehending or misconstruing or ignoring the evidence. That finding was "given the appellant's past indifference and disregard for his undertaking I am not persuaded on a balance of probabilities that the appellant will voluntarily pay off the outstanding amount owing to the province of Ontario if this appeal is successful.".
[44] I see the following errors underlying this conclusion:
1. The evidence does not support the tribunal's finding Mr. Aryan did not discuss with officials in Ontario a monthly payment schedule. Mr. Aryan's testimony is clear he approached Ontario twice, once in 2001 and another time in 2002 suggesting to appropriate officials a schedule of payment but those officials were not interested, demanding payment in full (transcript, certified record, page 238, 239 and 295.
2. The tribunal ignored his evidence he intended to pay back to Ontario what his parents received (transcript, certified record, p. 283).
3. The tribunal, as suggested by counsel for the Minister before it, seemed to minimize his efforts to obtain a bank loan in the amount of $60,000 to pay of the social assistance his parents received yet later in its reasons found on the balance of probabilities he "was unable at this time to pay off the entire amount owing" which contradicts its earlier suggestion.
4. The tribunal's finding Mr. Aryan was reluctant to acknowledge his financial obligations to Canada and Ontario stems from misreading the evidence. Mr. Aryan testified he was never under the impression of defaulting because, at his doctor's suggestion, he, with his parents, approached Ontario. According to his evidence, not challenged by the tribunal, he told Ontario officials of his sponsorship undertaking and his continued desire to help. Ontario agreed he could afford to contribute $200 a month (he was earning $1,200 a month). Ontario deducted $200 a month from their disability entitlement, which was his agreed to contribution. Those deductions continued until 2001 after the end of his undertaking to Canada in 1998.
[45] An administrative tribunal is obligated to take into account relevant considerations and, if it does not, its decision may be set aside. What the Court cannot do is re-weigh properly identified considerations and substitute its decision for that of the tribunal.
[46] A relevant consideration is determined, in part, from the purpose Parliament identified in the legislation.
[47] It is clear from the decisions of the Supreme Court of Canada that paragraph 77(3)(b) has a broad purpose - relief, in appropriate circumstances, based on humanitarian and compassionate grounds, from the hardship in the application of the sponsorship provisions of the Act and Regulations.
[48] My review of the tribunal's decision and the transcript satisfies me the tribunal did not take into consideration the following factors in arriving at its decision.
[49] First, seeking assistance from Ontario was an event which was beyond Mr. Aryan's control. Essentially assistance was sought because his parents got sick, required expensive medication and could not earn any income which was his father's intention (working as a carpenter) (transcript, certified record, p. 266).
[50] It is clear the tribunal did not take this factor into account when it concluded "it is difficult to see how the appellant could have supported his parents without government assistance and improved his education and future prospects for employment at the same time". The appropriate inference from the evidence is that no assistance would have been required but for their illness.
[51] Second, a complicating factor was the fact that in early 1991 he lost his full-time job, then upgraded his skills and after looking for full-time work, realized he had to "do something about his qualifications". Before his parents arrived in 1993, he had enrolled as a special student at U of T.
[52] Third, I have already identified an error in the tribunal's assessment of Mr. Aryan's willingness to repay the social assistance his parents received.
[53] Fourth, while the tribunal acknowledged the emotional and physical stress of separation, the poor living conditions his wife was experiencing, the tribunal failed to recognize the effect of its decision would lead to a lengthy separation (perhaps 5 to 10 years) of the couple, when the applicant is now 41 years of age.
[54] For these reasons, this judicial review application is allowed, the tribunal's decision is set aside and Mr. Aryan's appeal is to be reconsidered by a differently constituted panel.
[55] As noted, the tribunal has a broad discretion under paragraph 77(3)(b) cases. In this case, I have concluded there was no basis in the evidence for the tribunal's finding that allowing the sponsorship appeal to proceed without payment of the amount of the default would likely result in the non-payment of any of the $60,000 owing under the prior undertaking.
[56] It would be an appropriate consideration for the tribunal re-hearing the matter to receive evidence on Mr. Aryan's efforts to enter into a satisfactory agreement with Ontario on the repayment of the debt arising from his first undertaking. I do not think paragraph 5(2)(g) of the former Regulations precludes that kind of arrangement.
[57] It may also be appropriate for the new tribunal to hear evidence on other efforts Mr. Aryan has made to eliminate or reduce the debt so as to persuade the tribunal to exercise its discretion positively.
[58] For these reasons, I do not think the constitutional question is ripe for consideration. I am of the view I need not answer it.
[59] Either party may propose a certified question by communicating with the Registry of the Court in Toronto on or before Friday, February 27th, 2004 with the other party's comments submitted by Friday, March 5th, 2004.
(Sgd.) "F. Lemieux"
Judge
Vancouver, British Columbia
February 20, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6676-02
STYLE OF CAUSE: MIAJAN ARYAN v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 22, 2003
REASONS FOR ORDER: Lemieux J.
DATED: February 20, 2004
APPEARANCES:
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FOR THE APPLICANT
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FOR THE RESPONDENT |
SOLICITORS OF RECORD:
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Toronto, Ontario |
FOR THE APPLICANT |
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Deputy Attorney General of Canada |
FOR THE RESPONDENT |