Tei v. Canada ( Minister of Citizenship and Immigration )
IMM-3559-97
Muldoon J.
29/12/98
10 pp.
Judicial review of visa officer's denial of application for permanent residence because spouse criminally inadmissible-As part of application for permanent residence, applicant, wife requested to provide certificates of good conduct-Submitting application for approval of rehabilitation disclosing wife's 1992 conviction for making false statement for purpose of obtaining certificate of identity-Prior to 1990 vacation, wife discovering Portuguese passport expired, would take some time before new one issued-Went to Hong Kong Immigration Department, falsely stating born in mainland China, received certificate of identity-In 1992 voluntarily went to Hong Kong immigration authorities to return certificate of identity, set record straight-Charged, convicted, fined C$365-Paid fine in full, and no adverse involvement with law since then-Applicant, wife interviewed to determine whether visa officer would recommend to program manager wife rehabilitated-Visa officer not convinced wife accepting responsibility for actions, of view appeared to trivialize matter-Making negative recommendation, concurred in by program manager-Application dismissed-Responsibility for rehabilitation decisions vested in Minister, not visa officers: Leung v. Canada (Minister of Citizenship and Immigration) (1998), 147 F.T.R. 124 (F.C.T.D.)-Applicant really challenging Minister's decision refusing to grant rehabilitation-Minister decision-maker, while visa officer merely adviser-By challenging visa officer's recommendation, applicant questioning validity of Minister's decision-Applications for judicial review limited to one decision: Gonsalves v. Canada (Minister of Citizenship and Immigration) (1997), 130 F.T.R. 269 (F.C.T.D.)-Applicant should have sought judicial review of Minister's determination-In such multi-part, sequentialstage decisions, snare set by old R. 1602(4), present r. 302-Perhaps legislative amendments indicated-Court might have "otherwise" ordered under r. 302 had there been merit in application-At personal interview with visa officer, wife's attitude evincing misapprehension of values, laws of Canadian society; throwing doubt on sincerity of earlier statutory declaration-While visa officer's recommendation playing large role in final decision, Minister's delegate (program manager) having before him supporting documentation from which different conclusions could have been drawn, but were not because visa officer made no reviewable error to taint ultimate decision-Challenge to ultimate decision requiring leave-Question certified: is visa officer's recommendation on issue of criminal rehabilitation pursuant to Immigration Act, s. 19(2)(a.1) subject to judicial review, and if so, is leave required to commence judicial review proceedings-Federal Court Rules, C.R.C., c. 663, R. 1602(4) (as enacted by SOR/92-43, s. 19)-Federal Court Rules, 1998, SOR/98-106, r. 302-Immigration Act, R.S.C., 1985, c. I-2, s. 19(2)(a.1) (as am. by S.C. 1992, c. 49, s. 11).