Date: 20001220
CORAM: STONE J.A.
ISAAC J.A.
SHARLOW J.A.
Docket: A-245-99
BETWEEN:
ITHAYAROOBY RAJADURAI
Appellant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
THE SOLICITOR GENERAL OF CANADA
Respondents
Docket: A-246-99
BETWEEN:
LATHAROOBY RAJADURAI
Appellant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
THE SOLICITOR GENERAL OF CANADA
Respondents
Heard at Toronto, Ontario, on Friday, November 10, 2000.
Judgment rendered at Ottawa, Ontario, on Wednesday, December 20, 2000.
REASONS FOR JUDGMENT BY: STONE J.A.
CONCURRED IN BY: ISAAC J.A.
DISSENTING REASONS BY: SHARLOW J.A.
Date: 20001220
CORAM: STONE J.A.
ISAAC J.A.
SHARLOW J.A.
Docket: A-245-99
BETWEEN:
ITHAYAROOBY RAJADURAI
Appellant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
THE SOLICITOR GENERAL OF CANADA
Respondents
Docket: A-246-99
BETWEEN:
LATHAROOBY RAJADURAI
Appellant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
THE SOLICITOR GENERAL OF CANADA
Respondents
REASONS FOR JUDGMENT
STONE J.A.
[1] I have had the privilege of reading in draft the reasons for judgment of my colleague Sharlow J.A. As I am unable to agree with those reasons, I wish now to explain the bases of my disagreement.
[2] I accept my colleague's recitation of the facts but wish to add the following. By the visa officer's letters of April 13, 1998 and May 19, 1998, each appellant was informed that she had failed to meet the requirements for immigration to Canada in the Assisted Relative category for the simple reason that the visa officer had awarded her an insufficient number of units of assessment to qualify for landing in that category. By those same letters, the appellants were also informed that the Program Manager had determined that there existed insufficient grounds to warrant special consideration.
[3] On the other hand, as my colleague points out, the authority of the Program Manager to grant exceptions under the Immigration Regulations, 1978 (the "Regulations") is derived from the combined effect of subsection 114(2) of the Immigration Act (the "Act") and section 2.1 of the Regulations. It is not contended that the Program Manager was not properly acting as the Minister's delegate in these matters.
[4] It seems clear that the decisions not to except the appellants on humanitarian and compassionate grounds were those of the Program Manager and were taken only after the visa officer had already determined that neither appellant qualified for admission within the Assisted Relative category. Indeed, in his affidavit of October 6, 1998, the visa officer explained, correctly in my view, that his "duty was to assess the...application for permanent residence under the Assisted Relative category and gather information for the Program Manager who was the delegated authority under subsection 114(2)" of the Act in considering whether humanitarian and compassionate grounds existed.
[5] Nor do I derive assistance from the "medically inadmissible" decisions of this Court that are referred to by my colleague. Those cases were concerned with whether the provisions of paragraph 19(1)(a) of the Act rendered the persons concerned inadmissible because of the state of their health as established by the opinions of medical officers. In those cases, this Court had to decide whether the Immigration Appeal Board or a visa officer erred in treating as conclusive the opinion of medical officers that admission to Canada would cause "or might reasonably be expected to cause excessive demands on health or social services", as provided for in paragraph 19(1)(a). The Court was of the view that the statutory scheme clearly contemplated a determination by a visa officer or by the Board, as the case may be, of whether the opinions of the medical officers were reasonable. Thus, in Ahir v. M.E.I., [1984] 1 F.C. 1098 (C.A.), the leading case on the point, Heald J.A. stated at 1102:
| ...In my view, paragraph 19(1)(a) establishes the authority of two medical officers as defined by the Act. However, I think that authority is subject to the constraint of being reasonable. The statutory scheme requires the Adjudicator initially, and, in cases where an appeal lies to the Board, subsequently the Board, to decide whether the "expectation" expressed by the medical officers is "reasonable" having regard to the circumstances of each individual case. |
| In the instant case, the Board has interpreted subparagraph 19(1)(a)(ii) as though the subparagraph did not contain the word "reasonably". In so doing, I think the Board erred in law and that this error is sufficient of itself to vitiate the decision of the Board. |
[6] As will be seen, the language of the statute itself required the ultimate decision-makers to examine the opinions of the medical officers for reasonableness. There was thus a direct statutory link in the legislation between those opinions and the ultimate decision. In my view, no such link exists in the present case.
[7] Finally, I have some difficulty in seeing how the words in subsection 82.1(2), "or any other matter arising thereunder", can embrace the decision of the Program Manager so as to obviate the need for leave. Again, as I have indicated, that decision belonged to the Program Manager as the Minister's delegate and not to the visa officer. The visa officer had to determine whether each of the appellants should be awarded a sufficient number of units of assessment as to bring themselves within the Assisted Relative category. That is all the visa officer was authorized to determine. Because the visa officer decided to award each of the appellants an insufficient number of units of assessment they became ineligible for admission within that category, and paragraph 19(2)(d) of the Act then rendered them inadmissible to Canada.
[8] I am quite unable to see how the decision of the Program Manager can be viewed as a "matter arising" under the decision of the visa officer or under an application made to the visa officer pursuant to section 9 of the Act rather than to the Program Manager pursuant to subsection 114(2) of the Act and the Regulations: Sajjan v. Canada (Minister of Citizenship and Immigration) (1997) F.C.J. No. 905 (F.C.A.). On the contrary, the visa officer's decision had to be made some time before the Program Manager was called upon to make his decision of whether humanitarian and compassionate grounds existed. If the visa officer had awarded a sufficient number of units of assessment the appellants would have been issued a visa for landing in Canada. It was only because the visa officer awarded too few units of assessment that the appellants became inadmissible. Before that decision was made the Program Manager had no role to play under the Act and the Regulations. The question that came before him was whether to except both of the appellants from the Regulations notwithstanding their inadmissibility as found by the visa officer and as provided in paragraph 19(2)(d) of the Act.
[9] I therefore conclude that subsection 82.1(2) of the Act does not permit judicial review of the Program Manager's decisions without prior leave of the Trial Division.
[10] I would dismiss each of the appeals.
"A.J. Stone"
J.A.
"I agree.
Julius A. Isaac, J.A."
Date: 20001220
Docket: A-245-99
CORAM: STONE J.A.
ISAAC J.A.
SHARLOW J.A.
BETWEEN:
ITHAYAROOBY RAJADURAI
Appellant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
THE SOLICITOR GENERAL OF CANADA
Respondents
Docket: A-246-99
BETWEEN:
LATHAROOBY RAJADURAI
Appellant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
THE SOLICITOR GENERAL OF CANADA
Respondents
REASONS FOR JUDGMENT
SHARLOW J.A.
[1] The issue in this appeal is whether a prospective immigrant who wishes to challenge a Ministerial decision under subsection 114(2) of the Immigration Act, R.S.C. 1985, c. I-2, must first obtain leave, if the Ministerial decision underlies a visa officer decision under section 9 that can be challenged without leave.
[2] The motions judge concluded that leave was required, and as a result she did not consider the merits of the application for judicial review: Rajadurai v. Canada (Minister of Citizenship and Immigration) (1999), 164 F.T.R. 292, 1 Imm. L.R. (3d) 109, [1999] F.C.J. No. 432 (QL) (F.C.T.D.). However, a question was certified under section 83 of the Immigration Act to permit the decision to be appealed.
[3] When the appellants commenced this appeal, they also sought to preserve their position, in case their appeals failed, by filing applications for leave to challenge the ministerial decisions. I presume that in these applications the appellants argued that the ministerial decisions were unreasonable and ought to be quashed (Baker v. Canada, [1999] 2 S.C.R. 187). Leave was denied to Ithayarooby Rajadurai on May 3, 1999 by Mr. Justice Cullen (IMM-1316-99) and to Latharooby Rajadurai on June 2, 1999 by Madam Justice Tremblay-Lamer (IMM 1313-99). In accordance with the usual practice of this Court, no reasons were given for refusing leave.
[4] The facts are not in dispute. The appellants are sisters, young women living alone in Sri Lanka. Their brother is a permanent resident of Canada. Their parents had previously applied for admission to Canada for themselves and the appellants, under the sponsorship of the brother. Their father died before the application was completed but their mother was approved for landing in June of 1996. The appellants were refused at that time on the basis that they were not "dependent daughters" within the statutory definition because they were over the age of 19 and not continuously enrolled in school.
[5] The appellants renewed their applications for immigrant visas, this time under the "assisted relative" category. Their applications included a request under subsection 114(2) for relief from the normal admission requirements on humanitarian and compassionate grounds. The basis of that request was that the civil war in Sri Lanka had prevented them from continuing their schooling, and that as young single women without relatives in Sri Lanka they were in a particularly vulnerable position. Their visa application was refused by a visa officer stationed in the office of the Canadian High Commission in Colombo, Sri Lanka.
[6] In letters from the visa officer dated April 13, 1998 and May 19, 1998, each appellant was informed that she had failed to meet the requirements for immigration to Canada in the assisted relative category because the visa officer had awarded her an insufficient number of units of assessment to qualify for landing in that category. By those same letters, the appellants were also informed that the program manager had determined that there existed insufficient grounds to warrant special consideration.
[7] To understand the legal basis of the visa officer's decision, it is necessary to consider several elements of the scheme of the Immigration Act. A person outside Canada who wishes to become a permanent resident of Canada must first make an application for an immigrant visa. That application is considered by a visa officer, who determines whether the applicant is entitled to an immigrant visa. The issuance of a visa is governed by subsection 9(4), which reads as follows:
| (4) Subject to subsection (5), where a visa officer is satisfied that it would not be contrary to this Act or the regulations to grant landing or entry, as the case may be, to a person who has made an application pursuant to subsection (1) and to the person's dependants, the visa officer may issue a visa to that person and to each of that person's accompanying dependants for the purpose of identifying the holder thereof as an immigrant or a visitor, as the case may be, who, in the opinion of the visa officer, meets the requirements of this Act and the regulations. |
(4) Sous réserve du paragraphe (5), l'agent des visas qui est convaincu que l'établissement ou le séjour au Canada du demandeur et des personnes à sa charge ne contreviendrait pas à la présente loi ni à ses règlements peut délivrer à ce dernier et aux personnes à charge qui l'accompagnent un visa précisant leur qualité d'immigrant ou de visiteur et attestant qu'à son avis, ils satisfont aux exigences de la présente loi et de ses règlements. |
[8] A visa officer performing the task required by subsection 9(4) must first assess the applicant's qualifications. In most instances, the applicant must meet the selection criteria for immigrants as set out in the Immigration Regulations, 1978. The selection criteria are intended to determine whether or not and the degree to which the immigrant will be able to become successfully established in Canada. Selection is made by awarding points for a number of factors. A person who meets the definition of "assisted relative", as these two appellants did, would meet the selection criteria if they achieved 65 points. That is 5 points less than the number of points required by a person who is not an assisted relative.
[9] In a separate but related enquiry, the visa officer must determine whether the applicant falls into one of the classes of persons who must be denied admission. There are two categories of inadmissible persons, those listed in subsection 19(1) of the Immigration Act, who are simply inadmissible to Canada, and those listed in subsection 19(2) who are generally inadmissible but may in certain circumstances be permitted to come to Canada for a period not exceeding 30 days.
[10] The list of inadmissible classes in subsection 19(1) includes persons who suffer from certain impairments to their physical or mental health, who are unable or unwilling to support themselves, who have committed certain kinds of criminal offences, who are members of certain criminal organizations, or who pose certain security risks. There is no suggestion that either appellant is inadmissible under subsection 19(1).
[11] The list of inadmissible classes in subsection 19(2) includes persons with less serious criminal records. It also includes a catch-all category in paragraph 19(2)(d):
| (2) No immigrant and, except as provided in subsection (3), no visitor shall be granted admission if the immigrant or visitor is a member of any of the following classes: ... (d) persons who cannot or do not fulfil or comply with any of the conditions or requirements of this Act or the regulations or any orders or directions lawfully made or given under this Act or the regulations. |
(2) Appartiennent à une catégorie non admissible les immigrants et, sous réserve du paragraphe (3), les visiteurs qui_: ... d) soit ne se conforment pas aux conditions prévues à la présente loi et à ses règlements ou aux mesures ou instructions qui en procèdent, soit ne peuvent le faire. |
[12] Thus, for example, a person who fails to meet the selection criteria could, for that reason, be a member of an inadmissible class pursuant to paragraph 19(2)(d). However, that is not an inevitable conclusion. A person who does not meet the selection criteria may request relief under subsection 114(2), which reads as follows:
| 114(2) The Governor in Council may, by regulation, authorize the Minister to exempt any person from any regulation made under subsection (1) or otherwise facilitate the admission of any person where the Minister is satisfied that the person should be exempted from that regulation or that the person's admission should be facilitated owing to the existence of compassionate or humanitarian considerations. |
114(2) Le gouverneur en conseil peut, par règlement, autoriser le ministre à accorder, pour des raisons d'ordre humanitaire, une dispense d'application d'un règlement pris aux termes du paragraphe (1) ou à faciliter l'admission de toute autre manière. |
[13] This provision is given effect in Regulation 2.1, which reads as follows:
| 2.1 The Minister is hereby authorized to exempt any person from any regulation made under subsection 114(1) of the Act or otherwise facilitate the admission to Canada of any person where the Minister is satisfied that the person should be exempted from that regulation or that the person's admission should be facilitated owing to the existence of compassionate or humanitarian considerations. |
2.1 Le ministre est autorisé à accorder, pour des raisons d'ordre humanitaire, une dispense d'application d'un règlement pris aux termes du paragraphe 114(1) de la Loi ou à faciliter l'admission au Canada de toute autre manière. |
[14] In this case, a positive decision under subsection 114(2) would have relieved the appellants of the requirement to meet the selection criteria. In effect, the selection criteria would have been waived for the appellants. That would remove them from the class of inadmissible persons under subsection 19(2)(b).
[15] The Minister's authority under subsection 114(2) may be delegated to others. In this case, the program manager in the office of the Canadian High Commission in Colombo, Sri Lanka was an authorized delegate of the Minister for purposes of subsection 114(2).
[16] It is clear that he and he alone made the decision to reject the subsection 114(2) application, after the visa officer had already determined that the selection criteria were not met. The visa officer in Colombo who dealt with the appellants' applications did not have the authority to make a decision under subsection 114(2). He was authorized only to assess the appellants' applications against the selection criteria and to decide, under section 9, whether to issue them immigrant visas.
[17] The visa officer's assessment of the appellants' qualifications was not challenged. Given that assessment, and the negative decision of the Minister's delegate under subsection 114(2), the visa officer was compelled to refuse to issue immigrant visas to the appellants because they were members of the inadmissible class of persons described in paragraph 19(2)(d).
[18] The appellants wish to challenge the decision to refuse them a visa. To succeed, they must successfully challenge the determination that they are members of an inadmissible class described in paragraph 19(2)(d) which, in the circumstances of this case, requires them to challenge the decision of the Minister's delegate under subsection 114(2) to deny them relief on humanitarian and compassionate grounds. This requires an application to the Trial Division of the Federal Court for judicial review under section 18 of the Federal Court Act, S.C. 1985, c. F-7, as amended.
[19] In most situations, anyone with an appropriate interest or standing has the right to seek judicial review of decisions made under federal statutes, subject to complying with the requirements of the Federal Court Act and the applicable rules of court. However, subsections 82.1(1) and (2) of the Immigration Act impose a limitation on that right with respect to certain decisions made under the Immigration Act. Those provisions read as follows:
| 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. |
82.1 (1) La présentation d'une demande de contrôle judiciaire aux termes de la Loi sur la Cour fédérale ne peut, pour ce qui est des décisions ou ordonnances rendues, des mesures prises ou de toute question soulevée dans le cadre de la présente loi ou de ses textes d'application -- règlements ou règles -- se faire qu'avec l'autorisation d'un juge de la Section de première instance de la Cour fédérale. |
| (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. |
(2) 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. |
[20] In this case, the motions judge found that even though the decision of the visa officer under section 9 was a decision within the scope of subsection 82.1(2), the decision of the Minister's delegate was a separate decision that was not within the scope of subsection 82.1(2), and therefore the latter could not be challenged by judicial review without first obtaining leave under subsection 82.1(1). The issue in this appeal is whether the motions judge was correct on this point.
[21] The analysis of this issue should begin with an understanding of the objective of subsections 82.1(1) and (2). The requirement to obtain leave to commence an application for judicial review is intended to relieve immigration officials of the burden of defending their decisions against weak or vexatious claims: Eastaway v. Secretary of State For Trade and Industry, [2000] H.L.J. No. 56 (H.L.) (QL). Such a requirement also reduces the workload of the Court, since a leave application requires less judicial resources than an application for judicial review. These increases in efficiency are purchased at the cost of what would otherwise be unrestricted access to judicial review.
[22] By enacting subsection 82.1(2), Parliament has indicated that there are classes of decisions under the Immigration Act in which the efficiencies to be gained by the leave requirement do not outweigh the value of unrestricted access to the Courts. In this regard I refer, as did the motions judge, to the explanation for the introduction of subsection 82.1(2). This is found in the House of Commons Debates, 3 June 1988 at 16097, where the then Minister of Employment and Immigration said this:
| The Committee [the Standing Senate Committee on Legal and Constitutional Affairs] heard from a number of witnesses who pointed out that although the purpose of Bill C-55 is to institute a new refugee process, the Bill would also affect judicial review of some non-refugee immigration matters by the Federal Court. Their concerns arise from the provision in the Bill which would require leave to be obtained for an application commenced under section 18 of the Federal Court Act. Leave would have to be requested within 15 days after the applicant is notified of the decision. |
| Under the present law, no leave is required and there is no time limit for filing the application for judicial review under section 18. Witnesses pointed out that imposing a time limit would make negotiations with visa officers abroad difficult, if not impossible, and would likely result in a great number of pro forma applications being made solely to preserve the right of applicants to challenge a decision. They also stated that in relation to these kinds of cases there has been no evidence of abuse of any kind and that a provision requiring that leave be sought to commence an application, the effect of which would be to impede access to the courts, was therefore unnecessary. In amendment 9 the Committee recommends removal of these requirements. [Twentieth Report of the Standing Senate Committee on Legal and Constitutional Affairs, 33rd Parliament, 2nd Session, May 11, 1988.] |
[23] It is against this legislative history that the scope of subsection 82.1(2) must be determined.
[24] It is argued for the appellants that the appropriate procedure in this case should be the same as that permitted by the long standing jurisprudence relating to a challenge to a visa officer's refusal to issue a visa because of a determination that the applicant is "medically inadmissible", that is, a member of an inadmissible class under paragraph 19(1)(a). Such a determination must necessarily be based on the opinion of two medical officers, yet the applicant is not required to bring a separate application for judicial review of the medical officers' opinion to challenge its reasonableness. The applicant challenges only the visa officer's decision, and if the opinion of the medical officer on which the visa officer relied is found to be unreasonable, the decision of the visa officer may be quashed. See, for example, Ahir v. Minister of Employment and Immigration, [1984] 1 F.C. 1098 (C.A.), Mohamed v. Minister of Employment and Immigration , [1986] 3 F.C. 90, 68 N.R. 220 (F.C.A.) and Poste v. Canada (Minister of Citizenship and Immigration) (1997), 140 F.T.R. 126, 5 Admin. L.R. (3d) 69, 42 Imm. L.R. (2d) 84, [1997] F.C.J. No. 1805 (F.C.T.D.), and cases cited therein.
[25] The premise underlying this jurisprudence is that a visa officer who refuses to issue a visa is necessarily making a determination that the applicant is a member of an inadmissible class, and any decision upon which the visa officer is compelled to rely in making that determination should be treated as part of the visa officer's decision. In my view, there is no basis in law that would justify a departure from the jurisprudence. In any event, it reflects what in my opinion is the correct interpretation of subsection 82.1(2) and the correct procedural approach.
[26] Applying the same reasoning to this case, it is undisputed that the appellants are entitled to seek judicial review, without leave, of the visa officer's decision under section 9 to refuse to issue the visas because of his determination that the applicants are inadmissible under paragraph 19(2)(d). That determination of inadmissibility rests on a decision by a delegate of the Minister to deny relief under subsection 114(2). In this regard, I see no relevant distinction between a medical opinion dealing directly with a question of inadmissibility under paragraph 19(1)(a), and a ministerial determination that waives the normal selection criteria and thus the inadmissibility provision in paragraph 19(2)(d). The reasonableness of the subsection 114(2) decision, like the reasonableness of the medical opinion, should be dealt with in the application for judicial review of the visa officer's decision. The appellants should not be required to commence a second application for judicial review of the Minister's decision that would require leave.
[27] I have not overlooked section 302 of the Federal Court Rules, 1998, which has been interpreted to preclude an application for judicial review relating to more than one decision, unless the Court permits otherwise. A rule of court, being legislation subordinate to the statute constituting the Court, cannot override a provision in another statute governing the right to seek judicial review. If there were any inconsistency between Rule 302 and subsection 82.1(2), the latter would prevail.
[28] However, in my view there is no inconsistency. Certainly no such inconsistency has been identified in the cases dealing with medical inadmissibility. In those cases, the application for judicial review is properly treated as an application to review a single decision of the visa officer to refuse to issue a visa. One of the grounds for judicial review is that the visa officer's determination of inadmissibility under any of the section 19 categories should be quashed because it is based on an unreasonable decision made by someone else. The fact that such an argument necessarily requires a review of a subordinate decision does not compel the conclusion that two applications for judicial review are required.
[29] The Crown relies primarily on the oral decision of this Court in Sajjan v. Canada (Minister of Citizenship and Immigration) (1997), 216 N.R. 150, 39 Imm. L.R. (2d) 56, [1997] F.C.J. No. 905 (QL) (F.C.A.). The motions judge in this case essentially adopted the reasoning in Sajjan and held that the Ministerial decision under subsection 114(2) was a separate decision from that of the visa officer and could not be reviewed without leave.
[30] In my respectful view, the reliance of the motions judge on Sajjan is misplaced. Unlike this case, Sajjan did not involve a challenge to a decision that was subsumed within a visa officer's decision. Rather, the visa officer had made a negative decision under subsection 77(1) which was appealed under subsection 77(3) to the Appeal Division of the Immigration and Refugee Board, and the Appeal Division had dismissed the appeal. The applicant sought judicial review of the decision of the Appeal Division. It was in that context that the Court said, at paragraph 3:
| 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. |
[31] I do not quarrel with the conclusion that a decision by the Appeal Division made under subsection 77(3) is not within the language of subsection 82.1(2), and therefore cannot be challenged on judicial review without leave. However, I am unable to conclude that Sajjan is authority for the broader proposition propounded by the Crown in this case. For ease of reference, I repeat subsection 82.1(2):
| (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. |
(2) 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. |
[32] As I read subsection 82.1(2), it does not preclude a prospective immigrant from seeking, without leave, judicial review of a negative visa officer's decision and including within that application a challenge to the decision of another person upon which the visa officer necessarily relied. To say that the underlying decision is in fact a separate decision is correct but irrelevant, because it is equally true that the underlying decision is also an integral part of the visa officer's decision. The underlying decision, it seems to me, falls squarely within the words "any other matter arising thereunder with respect to an application to a visa officer" ("questions soulevées par toute demande qui lui est faite dans ce cadre"). Here the appellants made an application to a visa officer (the application under section 9 for a visa) which, because that application also included a request for relief under subsection 114(2), precluded the visa officer from determining whether the appellants were members of an admissible class under section 19 without first referring the matter to a delegate of the Minister.
[33] There are a number of decisions of the Trial Division that are said to be inconsistent with the conclusion I have reached. I see nothing in any of those decisions that persuades me that my conclusion is wrong. To the extent that these cases simply follow the decision of the motions judge in this case, or applied similar reasoning, they should similarly be overruled: Cheng v. Canada (Minister of Citizenship and Immigration), October 28, 1998, unreported, IMM-4313-98; Fawaz v. Canada (Minister of Citizenship and Immigration), (1998), 159 F.T.R. 319, [1998] F.C.J. No. 1680 (QL); Ho v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1303 (QL) (a decision rendered by me in the Trial Division), Lee v. Canada (Minister of Citizenship and Immigration), (1999), 177 F.T.R. 210, [1999] F.C.J. No. 1634 (QL).
[34] Conté v. Canada (Minister of Citizenship and Immigration), (1995) 116 F.T.R. 161, [1995] F.C.J. No. 1718 (QL) and Ching v. Canada (Minister of Citizenship and Immigration), (1997), 137 F.T.R. 313, [1997] F.C.J. No. 1475 (QL) are distinguishable on their facts. In both cases the application for judicial review did not challenge a visa officer decision.
[35] For the foregoing reasons, I would allow this appeal, set aside the decision of the motions judge, and refer the applications for judicial review back to the Trial Division for reconsideration on the merits by a different judge.
Karen R. Sharlow
J.A.