IMM-3798-94
| IN THE MATTER OF The Immigration Act, R.S.C. 1985, c. 52, as am'd R.S.C. 1985 (4th Suppl.), c. 28 & 29, S.C. 1992, c. 14, and Regulations thereto; |
| AND IN THE MATTER OF an application for entry to Canada made under the said Act. |
B E T W E E N:
CARL MEN KY CHING
Applicant
- and -
MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
REASONS FOR ORDER
[Delivered from the Bench at Toronto, Ontario
on Monday, October 21, 1997 as edited]
ROTHSTEIN, J.:
On July 5th, 1994 the applicant, through his counsel, applied to the Minister of Citizenship and Immigration to authorize his admission to Canada as a visitor or in the alternative to authorize his admission on a Minister's permit. On July 15th, 1994, the application was refused, giving rise to this judicial review. There are two preliminary questions: (1) whether leave is necessary to bring this judicial review; and (2) if leave is necessary should the Court grant leave now and proceed with the merits?
Subsections 82.1(1) and (2) of the Immigration Act R.S.C. 1985, c. I-2 (as amended) provide:
| 82.1 (1) An application for judicial review under the Federal Court Act with respect to any decision or order made, or any matter arising, under this Act or the rules or regulations thereunder may be commenced only with leave of a judge of the Federal Court " Trial Division. |
| (2) Subsection (1) does not apply with respect to a decision of a visa officer on an application under section 9, 10, or 77 or to any other matter arising thereunder with respect to an application to a visa officer. |
The respondent says that the decision under review in this case is not a decision of a visa officer and therefore subsection (2) is not applicable. The applicant says that the Minister, in essence, made the decision a visa officer would make, i.e. that the applicant was inadmissible under paragraph 19(1)(c.2), had that application actually been made to a visa officer, and therefore subsection 82.1(2) applies and leave is not required.
The decision of the Federal Court of Appeal in The Minister of Citizenship and Immigration v. Sajjan, court file A-247-97, June 24, 1997 per Linden J.A. is dispositive on this point. In that case a decision of the Appeal Division of the Immigration and Refugee Board was under consideration. It was argued that the Appeal Division's decision was a "matter arising thereunder" as those words are used in subsection (2). Linden J.A. stated at page 2:
| A decision made by the Appeal Division, such as the one being challenged in this application, is not a decision of a visa officer about a matter arising under sections 9, 10 or 77. A decision made by the Appeal Division is a decision made by a different decision-maker than a visa officer, and, hence, does not come within the exception. |
| The French version of subsection 82.1(2) makes that abundantly clear for it stresses the requirement of a decision made by the visa officer himself or herself, before this exception can be relied upon. It reads: |
| Le paragraphe (1) ne s'applique pas aux décisions prises par l'agent des visas dans le cadre des articles 9, 10 ou 77 ni aux questions soulevées par toute demande qui lui est faite dans ce cadre. (emphasis added) |
| These words can only mean that the exception relates exclusively to decisions of visa officers made under or in the context of sections 9, 10 and 77 and to no others. |
In this case, the applicant's application was made to the Minister. However one characterizes the decision or decisions, and whether made under paragraph 19.(1)(c.2) (refusal to exempt the applicant from inadmissibility due to there being reason to believe the applicant was involved in organized crime) or subsection 37(1) of the Immigration Act (refusal to grant a Minister's Permit), or both, the decision or decisions are made by the Minister. As such, they do not fall under the exception in subsection (2) of section 82.1 of the Immigration Act and leave is required.
The next question is whether the Court should now grant the required leave. There is no question that the applicant brought judicial review proceedings in a timely way and delay is not a factor. However, there is a real issue as to whether the case is moot. The applicant applied for a visitor's visa to enter Canada for the purpose of attending the Federation of International Basketball Association Games held in Toronto in July, 1994. He was refused. The games have come and gone. Even if leave were granted and the applicant's judicial review were allowed and even if the Minister reconsidered the decision and found the applicant admissible, he could not undo what has already been done. The applicant has missed the 1994 games and no decision, no matter how favourable to the applicant, can change that fact.
It appears from the material that the Minister's officials were of the opinion that the applicant was linked to Hong Kong triads and other similar organizations in Canada and the United States, drug trafficking, money laundering, contract murders and arms sales. Applicant's counsel says that the applicant has been refused entry for a number of years and that he should be allowed to have this matter judicially reviewed so that he can clear his name. She says that the applicant did not previously have notice of the Minister's reasons for denying admission, and that fairness requires that he be given an opportunity to now address those concerns.
However, the applicant has that opportunity by applying at any time for admission to Canada, either as a visitor or as an immigrant. Indeed, he did so in 1996 although without success. Now that he has all the information which he says he previously did not have, he can address Canada's concerns in any new application he may make. If indeed he has information that allays Canada's concerns about his involvement in organized crime, he may bring that out.
Proceeding with this judicial review will give the applicant no more than he can get on his own volition. He may make application to a visa officer or he may reapply to the Minister for a Minister's permit under s. 37 or an exemption under paragraph 19.(1) (c.2) of the Immigration Act. Whether he gets before the visa officer or the Minister of his own volition or by an order of redetermination by this Court is of no moment.
The issues in this case are moot and no useful purpose would be served by granting leave and deciding the matter on its merits. Leave is required and the leave application is dismissed.
"Marshall E. Rothstein" Judge
Calgary, Alberta
October 29, 1997
| IMM-3798-94 |
| IN THE MATTER OF The Immigration Act, R.S.C. 1985, c. 52, as am'd R.S.C. 1985 (4th Suppl.), c. 28 & 29, S.C. 1992, c. 14, and Regulations thereto; |
| AND IN THE MATTER OF an application for entry to Canada made under the said Act. |
| B E T W E E N: |
| CARL MEN KY CHING |
| Applicant |
| - and - |
| MINISTER OF CITIZENSHIP & IMMIGRATION |
| Respondent |
| ========================== |
| REASONS FOR ORDER |
| ========================== |
FEDERAL COURT OF CANADA
TRIAL DIVISION
COURT FILE NO.: IMM-3798-94
| STYLE OF CAUSE: CARL MEN KY CHING v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
PLACE OF HEARING: TORONTO, Ontario
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE
ROTHSTEIN
DATED: October 29, 1997
APPEARANCES;
Barbara Jackman for the Applicant
Sadian Campbell for the Respondent
SOLICITORS OF RECORD:
Jackman, Waldman & Associates
Toronto, Ontario for the Applicant
George Thomson
Deputy Attorney General for Canada
Ottawa, Ontario for the Respondent