Date: 20020912
Docket: IMM-1474-02
Neutral citation: 2002 FCT 964
BETWEEN:
MACH PHUI
Applicant
and
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
BACKGROUND
[1] The respondent applies in writing pursuant to Rule 369 of the Federal Court Rules, 1998 (the "Rules"), to strike out the applicant's judicial review application dated April 2, 2002, challenging a decision of the respondent Minister of Citizenship and Immigration dated February 28, 2002, in which the applicant says the visa officer determined his two daughters were both over 19 years of age and as a result not his dependants in an application for permanent residence in Canada sponsored by his son Hien Duc Mach ("Hien").
[2] The respondent invokes two main grounds for striking the application. First, he says no decision was made on February 28, 2002 and second, the only decision made by the visa officer was made on July 12, 2000. As a result, the applicant is out of time and needs an extension of time to commence his application which he has neither sought or satisfied the Court it should be granted.
[3] The record shows, on July 12, 2000, the visa officer sent a letter to the applicant, copy to Hien, the sponsor, stating the two daughters concerned were over 19 years of age. This view was taken by the visa officer, not based on the birth dates in the application to sponsor a member of the family class Hien had completed in July 1998 which stated his sisters to be under the age of 19, but rather on the visa officer examining a declaration Hien had made to Canadian immigration officials in 1984 giving different birth dates for his sisters in his application for permanent residence with eligibility on the basis he had escaped from Vietnam as a boat person.
[4] After receiving the July 12, 2000 letter, the applicant, then in Vietnam, petitioned on July 24, 2000, the visa officer for reconsideration stating that in 1984 his son Hien had been incorrect in his identification of his sisters' birth dates and that he, the father, confirmed they were respectively born in 1982 and 1983 as stated in the application for sponsorship submitted by Hien.
[5] On August 11, 2000, the visa officer, in a letter to the applicant, confirmed his original decision and refused to re-open.
[6] The respondent did not hear again from the applicant until January 25, 2002 when the visa officer received a letter from the applicant's solicitors asking his review of the file in the "light of new and compelling evidence regarding the dates of his daughters' births". I should add the applicant by that time had been successfully sponsored by Hien and was landed in Canada in April 2001.
[7] On February 28, 2002, the visa officer provided the applicant's solicitors with a handwritten response stating, inter alia, "this case was finalized in 2000 and as such the file is closed at our office".
DISCUSSION
[8] It is clear from a review of the record the applicant was wrong to identify in his section 18 application for judicial review February 28, 2002 as the material date of the visa officer's decision. The visa officer's decision was made on July 12, 2000, which the applicant's solicitor seems to concede because in his reply to the respondent's motion to strike he seeks as relief not only the dismissal of the respondent's motion but an extension of time to challenge the decision.
[9] The other relevant decision date which comes to mind is August 11, 2000, when faced with the applicant's petition, the visa officer refused to re-open his decision.
[10] I agree with the respondent that in the circumstances the applicant needed an extension of time which I consider he has sought from this Court albeit indirectly in his reply to the respondent's motion to strike.
[11] The Federal Court of Appeal in Canada (Attorney General) v. Hennelly (1999), 244 N.R. 399, stated that to receive an extension of time an applicant must demonstrate each of:
(a) a continuing intention to pursue his application;
(b) the application has some merit;
(c) no prejudice to the respondent; and
(d) a reasonable explanation for the delay exists.
[12] The Federal Court of Appeal also teaches us in Grewal v. Canada (Minister of Employment and Immigration), [1985] 2 F.C. 263, that the underlying consideration in an application to extend time is to ensure that justice is done and regard should be had to the reasons for the delay and whether there is an arguable case. The delay must be satisfactorily explained, (Council of Canadians v. Canada (Director of Investigation and Research (1997), 212 N.R. 254).
[13] The applicant filed an affidavit opposing the respondent's motion to strike, a motion which clearly identified the issue of the need for the applicant for an extension of time.
[14] Yet, in that affidavit, the applicant does not even address the issue of delay justification in challenging the visa officer's decision made in July 2000. Rather, he leaves that aspect to argument by his counsel unsupported factually through affidavit evidence which could be tested in cross-examination.
[15] Even if I recognized the fact the applicant in 2000 was located in a village in Vietnam and perhaps could not obtain legal advice there, there is no evidence nor argument why after landing in Canada in April 2001 he did nothing on such a critical matter as family reunification before January 2002. I do not accept his counsel's explanation the applicant was too busy "adapting to Canadian society".
[16] Nothing was said in the responding motion record about the inability of Hien to seek appropriate remedy at all or in a timely fashion.
[17] Upon review of the material, I hold the applicant had an arguable case to put forward but whatever rights he had on the merits he abandoned them by not asserting them in a timely fashion in a judicial review application. He did not display due diligence.
CONCLUSION
[18] For all of these reasons, this judicial review application is dismissed but, in the circumstances, without costs.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
SEPTEMBER 12, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1474-02
STYLE OF CAUSE: MACH PHUI v. MCI
MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES
REASONS FOR ORDER OF The Honourable Mr. Justice Lemieux
DATED: September 12, 2002
WRITTEN REPRESENTATIONS BY:
Mr. Austin Q. Nguyen FOR THE APPLICANT
Mr. Rick Garvin FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Austin Q. Nguyen FOR THE APPLICANT
AG LAW OFFICES
Mr. Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada