Date: 19990310
Docket: IMM-1431-97
BETWEEN:
DR. YIU CHOW KOO,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
MULDOON J.
[1] The applicant, Dr. Yiu Chow Koo, brings a motion pursuant to Rule 399(2)(a) of the Federal Court Rules 1998, SOR/98-106, for an order amending the order of this Court dated June 4, 1998. In the reasons for order, dated June 4, 1998, this Court allowed the applicant's request for judicial review of a refusal letter of a visa officer, which had concluded that the applicant failed to satisfy the requirements of the investor category and ordered that another visa officer assess the applicant's application for permanent residence as an investor.
[2] The applicant asks the Court to issue the following direction:
| 1. That this file be reassessed in accordance with the Reasons for Order issued by Justice Muldoon, dated June 1 [sic], 1998. |
| 2. Accordingly, the reassessment would not require a further interview nor a further production of documents on the qualifications with respect to the issue of qualifying as an investor. |
| 3. And for such relief as to this Honourable Court may seem just. |
| (Applicant's motion record, tab 4, p. 31) |
[3] The applicant relies on Rule 399(2)(a) in support of his motion. This rule allows the Court to set aside or vary an order in three situations: where the order was made in the absence of another party, where a new matter has arisen, or where the order was obtained by fraud. The portion of the rule on which the applicant relies reads as follows:
| 399.(2) On motion, the Court set aside or vary an order |
| (a) by reason of a matter that arose or was discovered subsequent to the making of the order . . . |
[4] Following the order issued by this Court, the applicant was summoned for an interview with another visa officer. The applicant takes issue with this turn of events, believing that his eligibility pursuant to the investor category has been settled conclusively, and in his favour, by this Court, thus rendering unnecessary any further interview. The applicant contends that his reassessment should proceed without further interview or further production of documents, and on the basis that he does indeed satisfy the investor category qualifications.
[5] The applicant refers to the venerable Latin maxims nemo debet bis vexari pro una et cadem [sic] causa, which means that no one should be twice vexed for the same cause, and interest reipublicae ut sit finis litum, which means that it is a matter of public interest that lawsuits be concluded. Once a court adjudicates on a matter, it cannot be reopened by the unsuccessful party in an attempt to litigate by instalments.
[6] The applicant also refers to the legal principle of res judicata to assert that the visa officer cannot subsequently refuse his application based on his qualifications as an investor, nor could the visa officer change the assessments pertaining to the other factors, such as age, education, and personal suitability, because these issues could have been raised previously, but were not.
[7] The respondent contends that the applicant has failed to identify proper grounds for this motion. The respondent argues that the applicant is attempting to raise a new issue regarding directions which could have been properly addressed within the judicial review hearing itself. The respondent also submits that the directions being sought by the applicant are not available to him as a matter of law, as the Court must be mindful that pursuant to the Immigration Act, R.S.C. 1985, c.I-2, it is the visa officer who has the sole discretionary authority to determine whether the applicant meets the selection criteria.
[8] In the reasons for order, at paragraph 13, this Judge held:
| A visa officer must assess the qualifications of the applicant to determine whether the applicant's responsibilities amount to "operating, directing or controlling" a business; not whether the responsibilities amount to "operating, directing or controlling" the entire business with which the applicant is employed . . . Looking to the visa officer's decision herein, it appears that she . . . erred by requiring that the applicant own Inchcape JDH as a whole and she failed to assess whether his responsibilities were consistent with operating, directing or controlling a business. This reasoning is shown both in the refusal letter sent to the applicant and her affidavit. The letter reads: |
| Having discussed you [sic] responsibilities which include managing sales representatives and service engineers in the PRC, I am satisfied that you are a qualified and experienced Sales Manager. Unfortunately, the management of a particular division of Inchcape JDH Limited does not equate to operating, controlling or directing Inchcape JDH in your own right. |
[9] In her affidavit, she states:
| I further explained that although it was not necessary to actually own the business or shares in the business, I was not satisfied, in this case, that his position in the Danby Division of Inchcape JDH Limited was consistent with the level of responsibility implicit in operating, directing or controlling Inchcape JDH Limited. |
| Based on the above comments, it seems clear that the visa officer erred by failing to assess whether the applicant's responsibilities were consistent with the responsibilities required in controlling a business. Instead, her focus was whether the responsibilities amounted to controlling Inchcape JDH Limited. |
[10] Accordingly, and because of this visa officer's error in law, it was ordered that another visa officer shall assess the applicant's application for permanent residence as an investor. What this Court did was determine that the visa officer incorrectly applied the criteria for investor to the applicant. The Court did not direct that the applicant is, in fact, an investor as that is a matter within the discretionary authority of the visa officer. Thus, the Latin maxims and the principle of res judicata cited by the applicant in support of his motion have no application to the case at bar.
[11] In Syed Hamid Hussain v. Canada (Minister of Citizenship and Immigration) (IMM-1702-97, October 22, 1998), Mr. Justice Evans, while finding in favour of the applicant, declined the applicant's request that the Court remit the matter to the same visa officer with a specific finding of fact regarding the applicant's application criteria:
| I am unable to accept this submission. As I have already indicated, whether a person satisfies a particular occupational classification should be determined by reading the description as a whole, and by considering the applicant's occupational experience as a whole. Accordingly, it would not be helpful for me to pronounce that the applicant had satisfied certain elements of the description, and withdraw them from the visa officer's determination. It is important to remember that Parliament has entrusted to visa officers, not the courts, the duty to determine visa applications, and this Court should not usurp that task. |
[12] This Court is in agreement with Mr. Justice Evans, and his reasoning can be applied to the present case.
[13] The applicant has failed to satisfy the Court that he has proper grounds to support a motion brought pursuant to Rule 399(2)(a). Accordingly, the applicant's motion for an amendment to this Court's order, dated June 4, 1998, is hereby dismissed. Costs are awarded to the respondent.
Judge
Ottawa, Ontario
March 10, 1999