Date: 19981217
Docket: IMM-4818-98
BETWEEN:
WEI KEI KENNETH LEE,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
MR. JOHN A. HARGRAVE,
PROTHONOTARY
[1] These reasons arise out of a motion to strike out a request for judicial review of a decision refusing permanent residence, said to have been made 11 August 1998 by a designated immigration or visa officer (the "visa officer") and on 18 August 1998 by a programme manager, both in Hong Kong.
[2] The motion itself, contrary to Rule 359, neither sets out the grounds to be argued, nor does it refer to any specific rule, or affidavit material, or indeed any material. However, from the affidavit and written representations contained in the motion record, which refers to Rule 302, a rule limiting judicial review applications to a review of one decision, probably the present motion is founded on Rule 4, the gap rule, and on some portion of Rule 221(1), other than Rule 221(1)(a).
[3] The Respondent's affidavit material, sworn by counsel, not by the immigration officers involved, set out that there are, in the Respondent's view, two different decisions, that of a visa officer, refusing permanent residence and that of a programme manager, refusing an application on humanitarian grounds.
[4] In contrast, the Applicant's affidavit indicates he applied to and was interviewed only by the visa officer as to residence in Canada as an assisted relative, as a last remaining family member and on humanitarian and compassionate grounds. According to the Applicant the visa officer, at the conclusion of the interview, denied the application on humanitarian and compassionate grounds, but indicated a final decision would be made by the programme manager, a person whom the Applicant apparently never met. There is no first hand evidence from either the visa officer or the programme manager.
[5] Each side presents involved and persuasive arguments. Additional evidence to determine, with certainty, that the Applicant is trying to have two decisions reviewed might be helpful.
[6] Given all of the circumstances this is a motion which does not fall within the "very exceptional" test set out in David Bull Laboratories (Canada) Inc. v. Pharmacia Inc. (1994), 176 N.R. 48, a decision of the Federal Court of Appeal. There, Mr. Justice Strayer, who gave the reasons for the Court, pointed out that:
| ... the direct and proper way to contest an originating notice of motion which the respondent thinks to be without merit is to appear and argue at the hearing of the motion itself. (page 52) |
Mr. Justice Strayer did go on to leave open the possibility of striking out what was then an originating notice of motion and which is now referred to as an application, in a very exceptional circumstance where the proceeding is "... so clearly improper as to be bereft of any possibility of success." (page 54):
| This is not to say that there is no jurisdiction in this court either inherent of through rule 5 by analogy to other rules, to dismiss in summary manner a notice of motion which is so clearly improper as to be bereft of any possibility of success. (See e.g. Cynamid Agricultural de Puerto Rico Inc. v. Commissioner of Patents (1983), 74 C.P.R. (2d) 133 (F.C.T.D.); and the discussion in Vancouver Island Peace Society et al. v. Canada (Minister of National Defence et al., [1994] 1 F.C. 102; 64 F.T.R. 127, at 120-121 F.C. (T.D.)). Such cases must be very exceptional and cannot include cases such as the present where there is simply a debatable issue as to the adequacy of the allegations in the notice of motion. |
| (loc. cit.) |
[7] The present motion and the application which it attacks do not fall within the category of being very exceptional for the purposes of striking out, or dismissal in a summary manner. Nor is this judicial review application so clearly improper as to be bereft of any possibility of success. Rather, the adequacy of the allegations of the Respondent and the complete evidence ought to be addressed by the Judge who hears the application on its merits. The motion is dismissed. Costs shall be in the cause.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
December 17, 1998
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-4818-98
STYLE OF CAUSE: Wei Kei Kenneth Lee
v.
The Minister of Citizenship and Immigration
MOTION DEALT WITH IN WRITING WITHOUT
APPEARANCE OF COUNSEL.
REASONS FOR ORDER OF MR. JOHN A. HARGRAVE, PROTHONOTARY
dated December 17, 1998
WRITTEN SUBMISSIONS BY:
Mr. Lawrence Wong for Applicant
Ms. Lorie Jane Turner for Respondent
SOLICITORS OF RECORD:
Lawrence Wong & Associates
Vancouver, BC for Applicant
Morris Rosenberg for Respondent
Deputy Attorney General
of Canada