Date: 20011220
Docket: IMM-2355-01
Neutral citation: 2001 FCT 1429
Toronto, Ontario, Thursday the 20th day of December, 2001
Present: Peter A. K. Giles, Esquire
Associate Senior Prothonotary
BETWEEN:
MAI HA
THA MAI HA
THIEN MAI HA
ARCHIEPISCOPAL CORPORATION OF WINNIPEG
Applicants
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] By the Motion before me the Minister seeks to strike paragraphs from the Applicants Memorandum of Argument, which paragraph challenge the decision of Dennis R. Scown, Program Manager.
[2] An Order prohibiting the Applicants from using the proceeding to challenge that Manager's decision.
[3] In the alternative an Order granting leave to file an affidavit and a further Memorandum of Argument in response to the paragraphs at issue.
[4] The decision of Scown included a humanitarian and compassionate (H & C ) decision which the Minister submits is a different decision from that of the visa officer, Scown, which is impugned by these proceedings. The Minister points out that two decisions cannot be impugned in the same application. The responding Applicant argues that the H & C decision ought in this case to have been made by the visa officer himself, as part of his decision, and that the very fact that the H & C decision was made by a different person invalidates the visa officer's decision. There is no intention in these proceedings to challenge the H & C decision which was made.
[5] The Applicant's argument is that there was only one decision with respect to each Applicant. The decision to refuse the application for a visa of each of the Applicants. According to the refusal letter the visa officer refused the application. The failure of the H & C assessment to prevail is merely one of the several reasons for the single decision. The Applicant argues that the Crown position is that one of the reasons should be separately reviewed. The Applicant's argument goes as follows: The only way an immigrant or visitor may come to Canada is to obtain a visa before the person arrives at a port of entry. A visa officer is empowered to issue a visa if the visa officer is satisfied that it would not be contrary to the Act or Regulations to grant landing to the visa applicant. Only a visa officer can issue visas. In carrying out his duties with respect to visas, the visa officer must first decide whether the applicant for the visa complies with the basic requirements, e.g. has no serious criminal record or will not cause undue health expense, etc. If the visa officer is satisfied the Applicant meets these basic requirements, the visa officer looks to find a program under which the person might be admitted to Canada, such as, for instance, one of the programs requiring points. If the person who has satisfied the basic requirements fails to fit into a program, the visa officer in his discretion may nevertheless for H & C reasons grant a visa. The responding Applicant argues that the H & C consideration must be that of the visa officer. If as the Minister has submitted, the decision was that of a person other than the visa officer, the visa officer has failed to make the H & C assessment he is required to make to reach his decision, and that decision must be reviewed.
[6] The responding Applicant submits that there was confusion between the H & C assessment which the Applicant says is required of a visa officer and the H & C assessment permitted a Minister's delegate when the basic requirements are not met. If the basic requirements are not met, a visa officer is not empowered to allow a person to enter. The Act and Regulations permit the Minister or a delegate of the Minister to allow into Canada a person who has failed to satisfy the basic requirements.
[7] In summary, the responding Applicant submits that there are two possible occasions when an H & C assessment is required, (1) when a person fails to satisfy the basic requirements, then the H & C assessment is made by the Minister or her delegate, (2) when a person satisfies the basic requirements, but fails to fit into a program. That H & C assessment should be made by a visa officer and not a delegate.
[8] In this case the basic requirements were met. The H & C assessment should have been part of the visa officer's decision. Any H & C assessment was made by the Minister's delegate who is not a visa officer. This last fact is relevant to impugn the visa officer's decision. It is not being put forward for the purpose of criticizing the work of the delegate, merely as proof that the visa officer did not make the assessment in coming to his decision as it is alleged he ought to have.
[9] The Respondent in reply has pointed out there is no judicial authority for the two different H & C authorities argument. It is however an argument and one which I think should be allowed to be made before the Hearing Judge and I will therefore, not order the paragraphs illustrating it struck from the Applicants' Memorandum of Argument. As indicated above, it is my view that the responding Applicant has indicated that he does not wish to use this proceeding to challenge the Program Manager's decision per se and for that reason I am prepared to grant that part of the Order prohibiting the Applicant from using this proceeding to challenge the Program Manager's decision itself. In addition, the Respondent should be allowed an opportunity if she so desires to file an affidavit and a further Memorandum of Argument in response to the argument contained in the impugned paragraphs.
ORDER
THIS COURT ORDERS that:
1. The part of the motion seeking an order striking part of the Applicants' Memorandum of Argument is dismissed.
2. The Applicants are prohibited from using this proceeding to challenge the Program Manager's decision per se.
3. The Respondent may have 10 days from the date of this order to serve and file any further affidavit and shall have 15 days from the date of this order to serve and file a further Memorandum of Argument to respond to the argument contained in the impugned paragraphs.
4. The Respondent may have 15 days from the date of this order to serve and file any reply.
"Peter A. K. Giles"
A.S.P.
Toronto, Ontario
December 20, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-2355-01
STYLE OF CAUSE: MAI HA
THA MAI HA
THIEN MAI HA
ARCHIEPISCOPAL CORPORATION OF WINNIPEG
Applicants
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
CONSIDERED AT TORONTO, ONTARIO PURSUANT TO RULE 369
REASONS FOR ORDER AND
ORDER BY: GILES A.S.P.
DATED: THURSDAY, DECEMBER 20, 2001
WRITTEN SUBMISSIONS BY: David Matas
For the Applicants
Jessica Cogan
For the Respondent
SOLICITORS OF RECORD: David Matas
Barrister & Solicitor
602-225 Vaughan St.
Winnipeg, Manitoba
R3C 1T7
For the Applicants
Page: 2
SOLICITORS OF RECORD:
(Cont'd)
Department of Justice - Canada
Winnipeg Regional Office
301 Centennial house
310 Broadway
Winnipeg, Manitoba
R3C 0S6
For the Respondent
FEDERAL COURT OF CANADA
Date: 20011220
Docket: IMM-2355-01
Between:
MAI HA
THA MAI HA
THIEN MAI HA
ARCHIEPISCOPAL CORPORATION OF WINNIPEG
Applicants
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER