Date: 19980703
Docket: IMM-3344-97
BETWEEN:
LISSETTE ALTAGRACIA ESTEVEZ,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR JUDGMENT
(delivered orally from the bench on May 27, 1998)
MULDOON, J.
[1] THE COURT: The Court is prepared to give a decision now. Briefly, the Court dismisses the application for judicial review. No merit has been found in the application. If lengthy reasons were sought, the Court would resort to the submissions made by the respondent in this case.
[2] One has to show that the visa officer is wrong certainly, if the visa officer comes to a conclusion on the facts which is a wrong conclusion. Here, the visa officer came to the conclusion he did, and based his decision, in large measure, on Mr. Rice's own letter. Now that may be a loss of face for Mr. Rice in these matters, and one could certainly observe in Court today the salutary rule that the deponent in an affidavit ought not to be counsel, because Mr. Rice was clearly quite agitated. But it is his letter, which accompanied the application for a student visa and a visitor visa, which was the main ingredient, the main evidence upon which visa officer Tremblay based his decision. That is the main argument. But there is nothing to the notion that there is discrimination because in Puerto Franks (ph.) they don't have a visa office where interviews are conducted. The applicants could have gone to any visa office they wanted. In fact, recently we had a case where an applicant from Rawalpindi went to the Cairo visa office and then had to the chutzpah to ask for costs. But there was the choice. They didn't want to have a visa application in Pakistan, preferred to have one in Egypt, and went to Egypt. One can go to any visa office. We know also of the "Buffalo shuffle"; the Buffalo, New York, visa office is much overused probably. But that indicates that there is no discrimination against those who want to go somewhere else and avoid a visa office where there are no interviews. The visa officer clearly had jurisdiction because the applications were for a student visa and a visitor's visa. Now when the visa officer mentioned the category of CF5, Classe Famille cinq, or Family Class 5, he was not making a finding, he was saying this is like one, like an abandoned child, an orphan. But it was from Mr. Rice's letter that he came to the conclusion that the child was "quasi abandoned". That's the closest literal translation of what he said in French in his notes. There appears to be no merit to the notion that there was an interview, a part interview, information was obtained which wasn't passed on to Mr. Tremblay in Santo Domingo. Obviously, that interview, conducted in the Spanish language, was to gather information and collect information and identify Lissette; no merit in that argument.
The question of whether the visa officer erred in considering Mr. Rice's aspirations, which can be seen in the applicant's record, page thirty, paragraph thirteen, is a question. The jurisprudence is conflicting and the jurisprudence which is conflicting is between the decision of Mr. Justice McKeown in Yu (Litigation Guardian of) v. Canada (Minister of Employment and Immigration), (1993) 21 Imm.L.R., (2d) 1 (T.D.) and the decision of Mr. Justice Gibson in Wong (Litigation Guardian of) v. Canada (Minister of Citizenship and Immigration) (1997) 134 F.T.R. 288. Mr. Justice Gibson's decision -- he must have certified a question -- is on appeal in the Court of Appeal and should be heard soon. Mr. Justice McKeown's decision in Yu has a certain cohesive logic to it and the Court agrees with the analysis made by counsel for the respondent of the decision in Wong. Wong was emphasized by counsel for the applicant, but Wong has a different factual situation. In Wong there were indications of a family with family ties, an indication, there, promised that the child would return to Hong Kong to his parents. Here, because of Mr. Rice's mentioning of the applicant being shuffled from house to house, because he indicates that she has not been educated, has not had the benefit of education, the notion is, and the notion was a correct inference, that she is "quasi abandoned" by her parents, and when they signed, they both had to sign to permit her to come to Canada. There is nothing in that to suggest that there are any ties. It suggests equally that they were happy to be rid of her. The other jurisprudence cited in the case was Rohm & Haas Canadian Ltd. v. Anti-Dumping Tribunal (1978), 22 N.R. 175 (F.C.A.), a decision of the Federal Court of Appeal, and Rusli v. Canada (Minister of Citizenship and Immigration) (1997) 127 F.T.R. 13, a decision of Mr. Justice Teitelbaum of this Court. Now there is something here. The Court mentioned that this case was a good illustration of the tradition for not allowing counsel to be a deponent, because clearly Mr. Rice, who was here and is not now, was very concerned about how Mr. Chahal made his submissions, and Mr. Rice was too closely, too personally involved, obviously. Mr. Chahal's presentation in the circumstances, was very professional. I think Mr. Rice has no reason to complain about the quality of advocacy just by the fact that the application is dismissed. When I was a child we had a saying, which I'm going to clean up and make more politically correct, that "you can't make a silk purse from a swine's ear", and sometimes lawyers are presented with the swine's ear. And in this instance, Mr. Chahal, you had the case you had, and you did the best you could, and the Court is content that Mr. Rice was as well represented as he could be in the circumstances. Is there any question to be certified here?
[3] MS. TELLES-LANGDON: The respondent does not have a question to be certified. There's one remaining issue, My Lord, and that's the issue of costs. * * *
[4] The Court will not award costs in this case, even 'though the rules now provide for costs: but the originating notice of motion was composed last August, August, 1997, before the new rules were in vogue, and there is no special reason under the old rules for assessing costs no matter what the transition provisions say. And so on that basis, the Court will not award costs. * * *
[5] Any question which you've written out for the Court to certify, or do you have a question to certify?
[6] Mr. CHAHAL: The question, My Lord, is that in Justice Gibson's -- there are two different decisions from the Federal Court that --
[7] THE COURT: It is not unusual where there is no appeal as of right.
[8] MR. CHAHAL: What I'm submitting is that rather, the period of stay, that the longer period of stay is the temporary visit, which is in the student authorization, that's what I was thinking, that of that period, how much of that period is relevant for the purpose of student authorization.
[9] THE COURT: Well, that will be answered. It has been answered by Mr. Justice McKeown, and it will be answered for Mr. Justice Gibson in the Wong case, so that, it appears, that such does not raise a matter of great importance in which one needs to certify a question. So that, with respect, Mr. Chahal, the Court declines to certify a question.
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE_ RECORD
COURT FILE NO.: IMM-3344-97
STYLE OF CAUSE: LISSETTE ALTAGRACIA ESTEVEZ v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: WINNIPEG
DATE OF HEARING: MAY 27, 1998
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE MULDOON DATED: JULY 3, 1998
APPEARANCES:
GURDEEP CHAHALFOR THE APPLICANT
SHARLENE TELLES-LANGDONFOR THE RESPONDENT
SOLICITORS ON THE RECORD:
SHAWA AND CHAHAL FOR THE APPLICANT WINNIPEG
Mr. GEORGE THOMSON FOR THE RESPONDENT DEPUTY ATTORNEY GENERAL OF CANADA