Digests

Rajadurai v. Canada (Minister of Citizenship and Immigration)

A-245-99

Pelletier J.

20/12/00

20 pp.

Appeal from T.D. decision ((1999), 1 Imm. L.R. (3d) 109) dismissing application for judicial review of Ministerial decision under Immigration Act, s. 114(2) as appellants had not obtained leave of Court required by Act, s. 82.1(1)--Appellants applied for immigrant visas under "assisted relative" category, including humanitarian and compassionate (H & C) application--In April 1998, appellants advised visa denied as insufficient number of units of assessment; and that Program Manager had determined insufficient grounds to warrant special consideration--Appellants wish to challenge denial of visa--To succeed, must successfully challenge determination appellants members of inadmissible class which, in circumstances herein, requires them to challenge decision of Program Manager, Minister's delegate, under Act, s. 114(2) to deny them relief on H & C grounds--Motions Judge determined this required application to F.C.T.D. for judicial review, with leave: Act, s. 82.1(1)--Issue whether Motion Judge correct on this point--Appeal dismissed (Sharlow J.A. dissenting)--Per Stone J.A. (Isaac J.A. concurring): Act, s. 82.1(2) (exemption from leave requirement for application for judicial review of visa officers' decisions) not applicable herein as decision attacked made by Program Manager, not visa officer--Nothing in common with Court's decisions on "medically inadmissible" applicants--Program Manager's decision not "matter arising" under decision of visa officer or under application made to visa officer pursuant to Act, s. 9 rather than to Program Manager pursuant to Act, s. 114(2) and Regulations: Sajjan v. Canada (Minister of Citizenship and Immigration) (1997), 39 Imm. L.R. (2d) 56 (F.C.A.)--Per Sharlow J.A. (dissenting): Appeal should be allowed--Leave requirement intended to relieve immigration officials of burden of defending decision against weak or vexatious claims--By Act, s. 82.1(2), Parliament indicated classes of decisions in which efficiencies to be gained by leave requirement not outweighing value of unrestricted access to Court--Program Manager's decision to deny relief under Act, s. 114(2) on basis appellants inadmissible as not complying with Act requirements should be treated same as medical opinion dealing directly with question of medical inadmissibility: where visa officer's refusal to issue visa based on medical inadmissibility, applicant may challenge visa officer's decision by attacking reasonableness of medical officer's opinion--Reasonableness of Act, s. 114(2) decision, like reasonableness of medical opinion, should be dealt with in application for judicial review of visa officer's decision--Appellants should not be required to commence second application for judicial review of Minister's decision requiring leave--Fact review of visa officer's decision requiring review of subordinate decision not compelling conclusion two applications for judicial review required--Underlying decision (Program Manager's) falling squarely within words "any other matter arising thereunder with respect to an application to a visa officer"--Immigration Act, R.S.C., 1985, c. I-2, ss. 9 (as am. by S.C. 1992, c. 49, s. 4), 82.1 (as am. idem, s. 73), (1), (2), 114(2) (as am. idem, s. 102).