Ogunfowora v. Canada ( Minister of Citizenship and Immigration )
IMM-2761-96
Teitelbaum J.
9/9/97
11 pp.
Application for reconsideration of terms of order ([1997] F.C.J. No. 456 (Q.L.)) quashing visa officer's decision denying applicant's request for visa on compassionate and humanitarian grounds-Order silent on issue of whether case raised serious questions of general importance for certification-Respondent Minister now bringing motion to vary terms of original order to certify three questions-Issues (1) procedural conditions for bringing motion to certify serious questions of general importance once original order has been issued; (2) whether actual questions posed raise serious questions of general importance-Motion allowed-(1) Not inconceivable question could remain invisible until after reasons given in judicial review application-Serious question of general importance can be certified after reasons for judgment have been issued-Federal Court R. 1733 can be invoked in certification matter in exceptional circumstance-Court noting had neglected to ask parties at original hearing if had questions for certification-Responsibility of judge to request parties if they have question to be certified-Minister did press boundaries of fairness by refusing or being unable to provide applicant proposed questions for certification until very last moment, however, point moot as another hearing date was granted in order to give applicant opportunity to consider proposed questions-Court having some reservations that this was case where serious questions of general importance not apparent during course of hearing-Motion for reconsideration on basis of failure to certify serious questions of general importance not without precedent-(2) Contents of questions-First proposed question (when assessing application for humanitarian and compassionate relief presented pursuant to Immigration Act, s. 114(2) and based solely on alleged danger of return to applicant's country of origin, can immigration officer consider opinion of postclaim determination officer in reaching decision?) already answered in case law: Al-Joubeh v. Canada (Minister of Citizenship and Immigration) (1996), 109 F.T.R. 235 (F.C.T.D.)-Second proposed question (is length of time taken by immigration officer in assessing application for humanitarian and compassionate relief presented pursuant to Immigration Act, s. 114(2) and after considering opinion of post-claim determination officer on presence of alleged danger of return to applicant's country of origin, indication (showing) he fettered his discretion?) turning on nuance of fettering of discretion argument-One-day interval between visa officer's decision and PDRC officer's assessment as indication that visa officer had indeed fettered his discretion-Basic question whether proposed question for certification solely dependent on factual issue or whether time interval matter does in fact raise distinct question of law of general importance-Question apparently falling in grey zone of fact and law, and in such case, better that definitive answer be given by Court of Appeal-Question raising question of law worthy of certification-Following question certified: Is length of time between immigration officer's assessment of application for humanitarian and compassionate relief presented pursuant to Immigration Act, s. 114(2) and immigration officer's consideration of opinion of post-claim determination officer on presence of alleged danger of return to applicant's country of origin, indication (showing) that immigration officer fettered his discretion?-Third question (when immigration officer has assessed application for humanitarian and compassionate relief pursuant to Immigration Act, s. 114(2), does officer have obligation to mention specifically in decision or in affidavit what evidence from applicant he considered?) not one of general importance transcending parties as has already been answered and addressed in case law: Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.)-Second question posed by Court: Does "giving parties opportunity to make request that judge certify that serious question of general importance as contemplated by Act, s. 83 involved" pursuant to Federal Court Immigration Rules, s. 18(1) mean that it is sole responsibility of judge hearing judicial review to ask parties if they wish to submit such question for certification or must party to proceedings state to Court that such question arises from proceedings before Court?-Federal Court Rules, C.R.C., c. 663, R. 1733-Immigration Act, R.S.C., 1985, c. I-2, s. 114(2) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 29; c. 29, s. 14; S.C. 1990, c. 38, s. 1; 1992, c. 49, s. 102; 1994, c. 26, s. 36)-Federal Court Immigration Rules, 1993, SOR/93-22, s. 18(1).