IMM-2916-96
MONTRÉAL, QUEBEC, THE 2nd DAY OF SEPTEMBER 1997
PRESENT: THE HONOURABLE MR. JUSTICE NADON
BETWEEN: LONY BENOÎT,
Applicant,
AND:
MINISTER OF CITIZENSHIP AND
IMMIGRATION,
Respondent.
Notice of an originating motion pursuant to section 18.1 of the Federal Court Act concerning the decision of July 17, 1996 by the visa officer of the Canadian Embassy in Port-au-Prince.
O R D E R
The application for judicial review is dismissed.
| Marc Nadon |
| Judge |
Certified true translation
Stephen Balogh
IMM-2916-96
BETWEEN:
LONY BENOÎT,
Applicant,
AND:
MINISTER OF CITIZENSHIP AND
IMMIGRATION,
Respondent.
REASONS FOR ORDER
NADON J.
The applicant challenges a decision by a visa officer of the Canadian Embassy in Port-au-Prince, Haiti.
In short, the applicant applied for temporary entry to Canada in order to visit his daughter and make the acquaintance of his granddaughter and son-in-law. The visa officer denied this application on July 17, 1996.
In paragraph 11 of her affidavit, filed by the respondent, the visa officer declared that her reason for denying the applicant"s application for temporary entry was that he [translation ] "did not establish to my satisfaction that he did not intend to immigrate to Canada".
Subsection 9(1.2) of the Immigration Act provides that any person who applies for a visa "shall satisfy a visa officer that the person is not an immigrant". Subsection 13(2) of the Immigration Regulations, 1978 is also relevant. It reads as follows:
| 13.(2) A visa officer may issue a visitor's visa to any person who meets the requirements of the Act and these Regulations if that person establishes to the satisfaction of the visa officer that he will be able |
| (a) to return to the country from which he seeks to come to Canada; or |
| (b) to go from Canada to some other country. |
There can be no question that the decision the visa officer had to make was discretionary. As Jerome A.C.J. stated in De la Cruz v. M.E.I., 26 F.T.R. 285, at page 287:
| Thus, the issuance of a visitor's visa is a discretionary decision. The duty of the visa officer is to accord proper consideration to any application, but he is not required to issue a visitor's visa unless he is convinced the applicant fulfills the legislative requirements. . . . |
The visa officer did not find the applicant"s evidence satisfactory. She accordingly refused to grant the visa for which the applicant had applied. Should the Court intervene to quash the decision in these circumstances? In my view, the answer to this question is no.
The courts have established clear tests that must be met before this Court may intervene in a discretionary decision by a visa officer. In De la Cruz, supra, Jerome A.C.J. stated the following at page 287:
| Are there grounds for quashing the decision of the visa officer? An application for certiorari is not an appellate review. To succeed, the applicants must do more than establish the possibility that I might have reached a different conclusion than the visa officer. There must be either an error of law apparent on the face of the record, or a breach of the duty of fairness appropriate to this essentially administrative decision. |
In Maple Lodge Farms v. Government of Canada, [1982] 2 S.C.R. 2 (S.C.C.), McIntyre J., writing for the court, stated the following about judicial review of a discretionary decision at pages 7-8:
| It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere. |
The onus was on the applicant to convince me that the visa officer committed an error requiring exercise of the superintending and reforming power of this Court. As I told counsel at the end of the hearing, the applicant failed to do so. The application for judicial review must accordingly be dismissed.
| Marc Nadon |
| Judge |
Montréal, Quebec
September 3, 1997
Certified true translation
Stephen Balogh
Federal Court of Canada
Court No. IMM-2916-96
BETWEEN
LONY BENOÎT,
Applicant,
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: IMM-2916-96
STYLE OF CAUSE: LONY BENOÎT,
Applicant,
AND:
MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: September 2, 1997
REASONS FOR ORDER BY THE HONOURABLE MR. JUSTICE NADON
DATE OF REASONS FOR ORDER: September 3, 1997
APPEARANCES: Michelle Langelier for the applicant
Lisa Maziade for the respondent
SOLICITORS OF RECORD:
Michelle Langelier
Montréal, Quebec for the applicant
George Thomson
Deputy Attorney General of Canada
Montréal, Quebec for the respondent