Date: 19980216
Docket: IMM-878-97
IMM-1649-97
OTTAWA, ONTARIO, THE 16th DAY OF FEBRUARY 1998
Present: THE HONOURABLE MR. JUSTICE J.E. DUBÉ
Between:
IMM-878-97
ABDELMAJID EL ALLETI,
Applicant,
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
IMM-1649-97
Between:
YASSIR EL ALLETI,
Applicant,
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
ORDER
The applicant's application for judicial review is allowed; the visa officers' decisions of February 6, 1997 (in the case of the father) and March 26, 1997 (in the case of the son) are set aside, and the applicant's application for a visa is referred back to a different visa officer for reconsideration.
J.E. DUBÉ
Judge
Certified true translation
M. Iveson
Date: 19980216
Docket: IMM-878-97
IMM-1649-97
Between:
IMM-878-97
ABDELMAJID EL ALLETI,
Applicant,
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
IMM-1649-97
Between:
YASSIR EL ALLETI,
Applicant,
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
DUBÉ J.:
[1] This is an application for judicial review of two decisions of the Immigration Section of the Canadian Embassy in Paris: the first, by visa officer Éloi Arsenault, concerned the father, Abdelmajid El Alleti ("the applicant"); the second, by officer Jacqueline Roby, concerned the application of the son, Yassir El Alleti. The two applications were joined pursuant to Federal Court Rule 1620.
[2] It should be mentioned at the outset that the respondent ("the Minister") concedes that the decisions at issue are wrong and consents to their being set aside. It is understood that the decision concerning the son will be the same as that concerning the father. As a result of the Minister's admission, the applicant asks the Court to make an order setting aside the decision of officer Éloi Arsenault dated February 6, 1997; issuing immigrant visas to the applicant and the dependants included in his application for permanent residence; or, in the alternative, ordering that his file be reopened and reconsidered by a different visa officer, on the condition that the fiche anthropométrique is no longer required.
[3] The Minister asks that the decision at issue be set aside and that the matter be referred back to a different visa officer without directions from this Court.
1. Facts
[4] The applicant applied to the Quebec government for a selection certificate in order to settle in that province as an investor immigrant. His application included police clearances for himself and his wife dated October 24, 1994 and December 8, 1994 respectively. After a selection interview with the Service d'immigration du Québec, certificates were issued in the "entrepreneur" class.
[5] On August 14, 1995, the immigration officer decided that the selection was made in error and that the applicant should be summoned to an interview. The applicant was later summoned to another interview on December 18, 1995 and was asked to provide new "police clearances". In February 1996, the officer decided that new medical examinations of the applicant and his dependants were required. The officer later required the production of a "fiche anthropométrique".
[6] Officer Éloi Arsenault's letter dated November 4, 1996 states that the fiche anthropométrique is [TRANSLATION] "the document now required of applicants from Morocco. This document, which is valid for three months, is available from the national security branch of the ministry of the interior of the Kingdom of Morocco". A document attached to a subsequent letter from the Canadian Embassy in Paris states that [TRANSLATION] "the fiche anthropométrique which can be obtained from the local police is required" of residents of Morocco.
[7] Despite repeated requests by officer Arsenault, the applicant never produced this fiche anthropométrique. On February 6, 1997, officer Arsenault accordingly notified the applicant that his application was denied because he had not produced this item as required under subsection 9(3) of the Immigration Act ("the Act"):1
| 9. (3) Every person shall answer truthfully all questions put to that person by a visa officer and shall produce such documentation as may be required by the visa officer for the purpose of establishing that his admission would not be contrary to this Act or the regulations. |
2. Arguments of the Parties
[8] The applicant submits that this Court has jurisdiction to order the immigration officer to deliver to the applicant and his son the two previously issued visas he has refused to deliver to them on the basis of irrelevant factors. The applicant has already provided his police record; he has no criminal record and no health problems. He has already been accepted as an entrepreneur by the Province of Quebec. All that therefore remains is for the immigration officer to deliver the visas to the applicants. Furthermore, as the applicant has already complied with all procedures required of him, he has a legitimate expectation that the previously issued visas will be delivered.2
[9] The Minister concedes that the decision at issue was wrong, as the officer should have told the applicant he was concerned about his judicial record, which would have made it easier for him to respond. The Minister submits that according to section 8 of the Act, the burden is on a visa applicant to prove to the visa officer that his or her admission to Canada would be both legal and consistent with the applicable provisions.
[10] In order to render his or her decision, the visa officer may also require the applicant to produce all documents the officer deems necessary to fully consider the application. It is in fact the officer's right and duty to insist on the production of acceptable proof.3 In the instant case, questions of fact remain to be answered by the visa officer. It would accordingly be inappropriate for this Court to order the visa officer, pursuant to paragraph 18.1(3)(b) of the Federal Court Act,4 to issue a visa to the applicant, much less to issue a visa itself.
[11] In his affidavit, officer Arsenault states that he learned from the applicant himself that he had a new address in the Netherlands, then another in France and finally that he was in Canada with visitor status since April 2, 1996. The officer also observes that [TRANSLATION] "the police clearances previously supplied were more than six months old and, moreover, were not of the required type". He notes that the fiches anthropométriques in question are documents which are [TRANSLATION] "generally easily and rapidly obtained by all our applicants, and we are surprised that Mr. El Alleti cannot or will not produce them".
3. Disposition
[12] I accordingly agree with the respondent that another visa officer should assess the file as now constituted and use it to determine whether it is sufficiently complete to render a decision. The officer will render the appropriate decision in light of the facts adduced in evidence by the applicant.
[13] Concerning the scope of the powers conferred on this Court under paragraph 18.1(3)(b) of the Federal Court Act, it is clear that the Court cannot itself issue a visa to the applicant. Although it can certainly set aside the visa officer's decision and refer it back for determination in accordance with certain directions, the Court cannot issue specific and conclusive directions as to the decision the officer must make unless the conclusion is simple, obvious and inescapable.5 The directions this Court is authorized to issue pursuant to paragraph 18.1(3)(b) vary with the circumstances of each case. If facts remain to be established, it is the officer who must determine them. If the Court finds an error in law, all the visa officer can do is to act accordingly.6
[14] In the instant case, it is not plain and obvious that all that remains is to deliver the visas to the claimants. Another visa officer must determine whether the fiche anthropométrique is indeed necessary and ensure that the applicant's police record is brought up to date. The visa officer may require the production of any other documents he or she considers appropriate in the circumstances.
[15] The applicant's application for judicial review is accordingly allowed, the visa officers' decisions of February 6, 1997 (in the case of the father) and March 26, 1997 (in the case of the son) are set aside, and the applicant's application for a visa is referred back to a different visa officer for reconsideration.
[16] The parties agree that there is no serious question of general importance to certify.
J.E. DUBÉ
Judge
OTTAWA, Ontario
February 16, 1998
Certified true translation
M. Iveson
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-878-97
IMM-1649-97
| STYLE OF CAUSE: ABDELMAJID EL ALLETI v. MINISTER OF CITIZENSHIP AND IMMIGRATION |
| YASSIR EL ALLETI v. MINISTER OF CITIZENSHIP AND IMMIGRATION |
| PLACE OF HEARING: Montréal, Quebec |
DATE OF HEARING: February 11, 1998
REASONS FOR ORDER BY DUBÉ J.
DATED: February 16, 1998
APPEARANCES:
Julius Grey FOR THE APPLICANT
| Michel Lecours FOR THE RESPONDENT |
SOLICITORS OF RECORD:
| Grey, Casgrain FOR THE APPLICANT |
Montréal, Quebec
| George Thomson FOR THE RESPONDENT |
Deputy Attorney General of Canada
__________________1 R.S.C., 1985, c. I-2.
2 Re Bendahmane and M.E.I., 61 D.L.R. (4th) 313, at pp. 326-327.
3 See Vadsaria v. M.E.I. (1986), 7 F.T.R. 299 (F.C.).
4 R.S.C., 1985, c. F-7, added by S.C. 1990, c. 8, s. 5: 18.1(3) On an application for judicial review, the Trial Division may
. . .
(b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.
5 See Xie v. M.E.I. (1994), 75 F.T.R. 125, at p. 130.
6 See M.C.I. v. Turanskaya, A-713-95, March 4, 1997.