Date: 20030128
Docket: IMM-5331-01
Neutral citation: 2003 FCT 92
BETWEEN:
XIAOZHOU CHEN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
[1] This judicial review application is dealt with in writing as the applicant, who lives in China, chose not to appoint a solicitor to represent him as stated in my Direction of January 10, 2003.
[2] The applicant, through an immigration consultant, applied on August 19, 1999 for permanent residence in Canada in the assisted relative category.
[3] On July 17, 2001, Visa Officer Rudover assessed him under the point system and refused his application because his points totalled 63. He needed 65 in the assisted category.
[4] Rather than seeking judicial review of that decision as provided in section 82.1(2) of the Immigration Act (the Act), he, again through the immigration consultant, filed a Notice of Appeal to the Immigration and Refugee Board on August 27, 2001.
[5] The Appeal Division asked the parties to make submissions on its jurisdiction to hear the appeal. On October 3, 2001, it dismissed the appeal for lack of jurisdiction. In written reasons dated January 4, 2002, it stated it was without jurisdiction because pursuant to section 77 of the Act, "this tribunal only has jurisdiction ... to hear appeals from refusals of sponsored applications for permanent residence made by members of the family class".
[6] The applicant seeks judicial review of the Appeal Division's decision.
[7] Clearly, the applicant's judicial review application is misconceived. He does not address the question of law decided by the Appeal Division. His arguments are directed to errors said to have been committed by the visa officer. Her decision is not before me. On this ground alone, this judicial review application is dismissed.
[8] A second reason for dismissing the judicial review application is that the Appeal Division's decision is clearly right. It is without jurisdiction to hear the applicant's appeal.
[9] The Appeal Division can only exercise the jurisdiction which Parliament granted it. Section 77 of the Act is headed "Appeals by Sponsors" as is subsection 77(3) which in its material part reads "a Canadian citizen or permanent resident who has sponsored an application for landing that is refused ... may appeal to the Appeal Division".
[10] In this case, the applicant was not sponsored and was neither a Canadian citizen nor a permanent resident.
[11] As I indicated, under the former Immigration Act, the applicant could have attacked the visa officer's decision by filing an application for judicial review directly in this Court. He did not and was badly advised by an immigration consultant, it would seem.
[12] This judicial review application is dismissed. No certified question arises.
"François Lemieux"
Judge
Montreal, Quebec
January 28, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5331-01
STYLE OF CAUSE:
XIAOZHOU CHEN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: January 28, 2003
REASONS FOR ORDER : THE HONOURABLE MR. JUSTICE LEMIEUX
DATED: January 28, 2003
APPEARANCES:
Mr. Jinglian Gui FOR THE APPLICANT
(representing Mr. Xiaozhou Chen)
Ms. Jocelyne Murphy FOR THE RESPONDENT
SOLICITORS OF RECORD:
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montreal, Quebec
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20030128
Docket: IMM-5331-01
BETWEEN:
XIAOZHOU CHEN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER