Date: 19980915
Docket: IMM-3599-97
BETWEEN:
MABEL CLARA CAJAS GONZALEZ
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION CANADA
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is an application for judicial review of the decision of a senior immigration officer, François Laberge, of the Department of Citizenship and Immigration Canada, dated August 15, 1997, at Montréal.
[2] On August 15, 1997, a senior immigration officer, François Laberge, informed the applicant by letter that the Department of Citizenship and Immigration could not take further action on her refugee claim, since her claim was ineligible under the provisions of subsection 44(1) of the Immigration Act.
[3] On June 16, 1997, prior to that letter being written, a senior immigration officer, Martin Desmarais, had issued a departure order against the applicant, which was not contested.
[4] Since no certificate of departure was issued within 30 days, the departure order made against the applicant was deemed to be a deportation order on July 17, 1997, by operation of sections 32.01 and 32.02 of the Immigration Act and section 27 of the Regulations.
[5] The plaintiff again claimed refugee status in Canada, pursuant to a second notice of refugee claim signed on July 30, 1997, and received by the immigration authorities on August 8, 1997.
[6] The Court must determine whether the letter from the senior immigration officer, François Laberge, on August 15, 1997, was a decision reviewable by way of application for judicial review.
[7] Counsel for the applicant requested that the hearing of this case be postponed to enable the applicant to submit written argument regarding the jurisdiction of the senior immigration officer to declare certain sections of the Immigration Act, and more specifically section 44(1), to be inoperative.
[8] Counsel for the respondent objected to the hearing being postponed and the Court decided to deny the request to postpone the hearing.
[9] Counsel for the applicant contends that Mr. Laberge's letter of August 15, 1997 is a decision within the meaning of the Act and that it is entirely reviewable.
[10] Counsel for the applicant further contends that the senior immigration officer, Mr. Laberge, had the power to declare certain statutory provisions, and specifically subsection 44(1) of the Immigration Act, to be inoperative.
[11] In response to the argument submitted by counsel for the applicant, counsel for the respondent first contends that the arguments regarding the power of the senior immigration officer, Mr. Laberge, to declare certain sections of the Immigration Act to be inoperative were not mentioned in the applicant's memorandum and could not be raised at the hearing.
[12] Counsel for the respondent further contends that the letter from the senior immigration officer, Mr. Laberge, dated August 15, 1997, is at most an information letter which cannot in any way be regarded as a decision reviewable by way of application for judicial review.
[13] Counsel for the respondent further contends that neither the Refugee Determination Division nor the judge in this instance has jurisdiction to review a decision made under subsection 44(1) of the Act.
[14] On this point, I would quote Mr. Justice MacKay, in Daher v. M.C.I., IMM-1853-97 (F.C.):
| As in Raman, so in this case, in my opinion s-s. 44(1) of the Immigration Act, R.S.C. 1985, c. I-2, as amended, precludes a Senior Immigration Officer from reopening a decision to exclude a person from Canada. |
[15] Counsel for the respondent drew the Court's attention specifically to the decision of the Federal Court of Appeal in M.E.I. v. Demirtas, [1993] 1 F.C. 602, at pages 606 and 607:
| Even if I were to take a very open-minded approach, I am unable to see how we could describe a mere informational letter from an administrative official in which, in reply to a request made to him, he draws his correspondent's attention to the existence of transitional legislative provisions and to the fact that a new quasi-judicial body was already seized of the cases which the correspondent wished to have transferred, as a "decision", and moreover a decision which granted or denied rights. |
[16] Later in his argument, counsel for the respondent submits, in the alternative, that even if it were concluded that the letter from the senior immigration officer was a decision reviewable by way of application for judicial review, the content of that letter is accurate since in the instant case an executory removal order has been made against the applicant by a senior immigration officer, Martin Desmarais, on June 16, 1997.
[17] In any event, the applicant has not established how the senior immigration officer's response was erroneous and not in accordance with the Immigration Act or Regulations, and specifically with subsection 44(1) of the Act.
[18] I have also read the decision of Mr. Justice Heald in Dilbat Singh Brar and Mukhtiar Dhillon v. M.C.I., Imm-2705-96 (F.C.):
| In these proceedings the applicant Brar is not challenging the visa officer's refusal letter of January 23, 1996. He is rather, challenging the letter of July 8, 1996, which refused the request for reconsideration. The respondent characterizes that letter as simply a "courtesy response", which does not constitute a "decision" as that phrase is employed in section 18.1 of the Federal Court Act. |
| I agree with the respondent. This view is supported by the decision of Noël J. in Dumbrava v. M.C.I., where it was decided that when there is a fresh decision based on new facts, there is always "a fresh exercise of discretion". In the case at bar, the visa officer did not refer to any new facts or submissions nor did she state that she was reconsidering her decision. As was stated by McKeown, J. in Dhaliwal v. M.C.I., "counsel cannot extend the date of decision by writing a letter with the intention of provoking reply". |
[19] In addition, there is support in the literature for the position that when the senior immigration officer, François Laberge, sent the letter, this was rather in the nature of the exercise of a tied (ministerial) power [pouvoir lié]:
| [TRANSLATION] A person who holds tied power makes a decision when the individual affected meets the objective requirements set out in the Act or regulations. The content of the decision to be made is therefore imposed on the holder of the power once objective requirements, as established by the legislature, have been met. No problem arises in applying those requirements in terms of either appreciation or interpretation. The decision therefore requires no (or little) judgment on the part of the decision-maker, who is not making a decision that allows for choices to be made. Accordingly, he or she is not exercising a genuine decision-making power. |
| The issuance of licences generally involves the exercise of a tied power. For example, in municipal affairs, a renovation permit will be issued where the applicant meets the objective requirements established by the municipality. The body to which the application is made in such situation has no freedom of choice as regards the decision to be made. 1 |
[20] For all these reasons, the application for review is dismissed on the basis that the letter from the senior immigration officer, François Laberge, dated August 15, 1997, is not a decision which may be reviewed by way of application for judicial review.
[21] Under these circumstances, the question proposed by counsel for the applicant is not a serious question of general importance, and accordingly no question will be certified.
Pierre Blais
Judge
OTTAWA, ONTARIO
September 15, 1998
Certified true translation
Bernard Olivier
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO: IMM-3599-97
STYLE OF CAUSE: MABEL CLARA CAJAS GONZALEZ v.
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: August 25, 1998
REASONS FOR ORDER OF BLAIS J.
DATED: September 15, 1998
APPEARANCES:
William Sloan FOR THE APPLICANT
Michel Synott FOR THE RESPONDENT
SOLICITORS OF RECORD:
Montréal, Quebec FOR THE APPLICANT
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
__________________1 Collection de droit 1997-1998, Droit public et administratif, Volume 7, by Jean-Pierre Villaggi, Cowansville, les Éditions Yvon Blais Inc., 1997, p. 24.