Date : 19990217
Docket: IMM-2310-98
Between:
SILVIA INES ORTUETA FERRER
Applicant
-and-
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER, J.
[1] This is an application for judicial review of a decision of the Appeal Division of the Immigration and Refugee Board ("Appeal Division"), which had dismissed the applicant's appeal.
[2] The applicant is a 21-year-old Cuban citizen. She immigrated to Canada in 1995, sponsored by her mother. On her application form she indicated that she was single, but she got married before arriving in Canada. On arriving in Montréal, she did not tell immigration officers about the change in her family situation, despite having received a letter in Spanish from the Board directing her to inform the visa office of any change in family situation.
[3] After receiving her permanent residence status, the applicant tried to sponsor her husband's visa application. Following this application, the Board issued a removal order against the applicant on the grounds that the applicant is a person described in paragraph 27(1)(e) of the Immigration Act1 (the "Act"), specifically a person who was granted landing by reason of possession of a false or improperly obtained visa by reason of a misrepresentation of a material fact. She filed an appeal pursuant to paragraph 70(1)(b) of the Act, which stipulates that having regard to all the circumstances of the case, the person should not be removed from Canada.
[4] Since the issue of the Appeal Division's jurisdiction to hear an appeal pursuant to paragraph 70(1)(b) in the case of a person described in paragraph 27(1)(e) is the object of a certified question and the applicant is aware of the Appeal Division's judgment concerning its jurisdiction, I will limit myself to reviewing the validity of the decision.
[5] The Appeal Division concluded that the applicant had intentionally made a false statement and had not presented evidence that explains the seriousness of this action.
[6] The counsel for the applicant contends that the evidence in the record is incomplete because of the incompetence of the lawyer of record before the Refugee Division, Mabel Fraser. In fact, the Court recognizes that several relevant facts were not presented to the panel, including the relationship between the applicant and her mother and the reasons why the mother was accepted as a refugee.
[7] I truly sympathize with Mr. Istvanffy's situation and understand his frustration in having to defend a case based on the evidence that was in the record before the panel. However, the Federal Court of Appeal is clear on this issue. In Moustisheva v. M.E.I.2, Létourneau J. confirmed that the lawyer for a party to a case is his agent:
| Finally, counsel for a party to a case is that party's agent. He acts on his behalf and as such assumes a number of obligations including those of conduct of the proceedings and receipt and issue of documents required by the proceedings. |
[8] Thus, except in rare cases, a party to a case cannot apply for a judicial review of a judgment because of the actions or inaction of that party's lawyer.
[9] In this case, the Appeal Division considered the circumstances surrounding the false statement, landing in Canada and the hardship that the applicant could endure if returned. Other than her mother, she has no ties with Canada. She has stated that, apart from the last three years, she has spent all her life in Cuba and that her husband, father and grandparents are still there. Her father's violence was not brought as evidence before the Appeal Division. Consequently, it cannot be raised in a judicial review.
[10] Thus the Appeal Division concluded that the possible hardships did not override the fact that she made a false statement. The applicant has failed to demonstrate that the Appeal Division acted in bad faith or in an arbitrary or illegal manner. The judgment was reasonable given the evidence in the record.
[11] Consequently, the application for judicial review is dismissed. However, I would like to add that, considering the applicant's personal situation and the lack of evidence in the record before the Refugee Division, I believe that this is an appropriate case for a humanitarian remedy.
Danièle Tremblay-Lamer
Judge
MONTRÉAL, QUEBEC
February 17, 1999
Certified true translation
Monica F. Chamberlain
Federal Court of Canada
Trial Division
Date: 19990217
Docket: IMM-2310-98
Between:
SILVIA ENES ORTUETA FERRER
Applicant
-and-
MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO: IMM-2310-98
STYLE OF CAUSE: SILVIA INES ORTUETA FERRER
Applicant
| AND |
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: February 17, 1999
REASONS FOR ORDER BY: TREMBLAY-LAMER J.
DATED: February 17, 1999
APPEARANCES:
Stewart Istvanffy for the applicant
Louise-Marie Courtemanche for the respondent
SOLICITORS OF RECORD:
Stewart Istvanffy, Solicitor
Montréal, Quebec for the applicant
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario for the respondent
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