2022 FC, 2022 FC 1496

Date: 20221102 Docket: IMM-1527-22 Citation: 2022 FC 1496 St.

John’s, Newfoundland and Labrador, November 2, 2022 PRESENT: The Honourable Madam Justice Heneghan BETWEEN:IRFAN AHMEDApplicantandTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent REASONS AND JUDGMENT [1] By a Notice of Motion dated May 24, 2022, for consideration without personal appearance pursuant to Rule 369 of the FederalCourts Rules, SOR/98-106 (the "“Rules”"), the Minister of Citizenship and Immigration (the "“Minister”") seeks the entry of judgmentin respect of the application for leave and judicial reviewed filed on February 16, 2022, by Mr. Irfan Ahmed (the "“Applicant”").

Thesubject of the application for leave and judicial review is a decision made by a Visa Officer (the "“Officer”") at the Embassy of Canadain Abu Dhabi United Arab Emirates, denying the Applicant’s application for a study permit. [2] In support of his Motion, the Minister filed the affidavit of Ms. Mireille Dankalian. He also relies on the affidavit of the Applicantfiled as part of his application record. [3] Ms. Dankalian is a legal assistant with the federal Department of Justice in Calgary, the office of Counsel for the Respondent. Sheswore her affidavit on May 24, 2022.

She referred to certain correspondence that was sent to Counsel for the Applicant. Copies of thatcorrespondence were attached as exhibits to her affidavit. [4] The first exhibit is a letter, dated May 3, 2022, from Counsel for the Respondent, “confirming” the terms upon which the Respondentwill consent to the Applicant’s application for leave and judicial review: that is to set aside the negative decision of the Officer, to allowthe Applicant to file updated documents, and to remit the matter to another officer, all without costs.

This offer was conditional upon theApplicant filing a Notice of Discontinuance of his application for leave and judicial review. [5] The second exhibit is a letter dated May 6, 2022 from Counsel for the Respondent, "“clarifying”" the letter of May 3, 2022. In thisletter, Counsel again says that upon the filing of a Notice of Discontinuance by the Applicant, the Respondent will consent to set asidethe decision, on the basis that the Officer improperly considered extrinsic evidence and that the reasons do not meet the legal test ofreasonableness.

This letter was written on a "“without prejudice”" basis. [6] The third exhibit is a letter dated May 13, 2022 from Counsel for the Respondent. This letter was written on a "“with prejudice”"basis and requested a reply by the close of business on May 18, 2022. [7] The Applicant filed his affidavit, sworn on April 13, 2022, in support of his application for judicial review. In his affidavit, he set outthe history of his application for a study permit in Canada. [8] The Applicant first applied for a study permit in June 2019.

The application was refused on July 17, 2019 and he filed an applicationfor leave and judicial review. The Respondent consented to setting aside the refusal and the matter was remitted to a different officer forredetermination. [9] Following that redetermination, the Applicant’s application was refused a second time, on August 16, 2020. [10] The Applicant sought leave to commence an application for judicial review in cause number IMM-4093-20.

Leave was granted andfollowing a hearing, Justice Fothergill allowed the application for judicial review on September 22, 2021, setting aside the negativedecision and remitting the matter for redetermination. [11] Upon a further redetermination, the Applicant received a third negative decision on February 1, 2022.

That decision is the subject ofthe within application for leave and judicial review. [12] The Respondent argues that the Court "“should”" grant his motion for judgment, on the grounds that he has admitted that thedecision of the Officer shows a reviewable error and in any event, does not meet the legal test of reasonableness.

He also submits thatgranting his motion accords with the idea of judicial economy, that he is offering the remedy that the Court would provide if leave weregranted and the Applicant succeeded upon his application for judicial review, after a hearing. [13] The Applicant opposes the Respondent’s motion. While he agrees the matter must be remitted to a different officer forredetermination, he submits that clear directions are necessary, so that the officer who will decide the matter again will not make thesame error, leading to further applications for judicial review.

In support of this argument, he relies upon Canada (Minister ofCitizenship and Immigration) v. Vavilov, 2019 SCC 65 , [2019] 4 S.C.R. 653 (S.C.C.) at paragraph 142. [14] The Applicant seeks costs upon this Motion, arguing that the Officer disregarded the order of Justice Fothergill to re-determine theapplication in accordance with the Court’s reasons. Further, he submits the Respondent unnecessarily prolonged these proceedings by

refusing to consent to his proposed directions to the visa officer. [15] In his Notice of Application for leave and judicial review, the Applicant seeks the following relief: A. An Order setting aside the decision of the visa officer of the Embassy of Canada dated February 1, 2022, wherein itdetermined that the Applicant would not be granted a study permit in Canada; and B.

An Order referring the Applicant’s application for a study permit back to the visa officer of the Embassy of Canada forfurther review or, alternatively, for an Order referring the matter back to the Embassy of Canada for determination of theApplicant’s application for a study permit in accordance with such directions as this Honourable Court considersappropriate. [16] According to subsection 18.1(3) of the Federal Courts Act, R.S.C., 1985, c. F-7, the Court enjoys discretion in respect of grantingrelief upon judicial review. Subsection 18.1(3) provides as follows: Powers of Federal Court

(3) On an application for judicialreview, the Federal Court may "" Pouvoirs de la Cour fédérale

(3) Sur présentation d’unedemande de contrôle judiciaire,la Cour fédérale peut : " " (

a) order a federal board,commission or other tribunal todo any act or thing it hasunlawfully failed or refused to door has unreasonably delayed indoing; or

a) ordonner à l’office fédéral encause d’accomplir tout acte qu’ila illégalement omis ou refuséd’accomplir ou dont il a retardél’exécution de manièredéraisonnable; (

b) declare invalid or unlawful,or quash, set aside or set asideand refer back for determinationin accordance with suchdirections as it considers to beappropriate, prohibit or restrain,a decision, order, act orproceeding of a federal board,commission or other tribunal.

b) déclarer nul ou illégal, ouannuler, ou infirmer et renvoyerpour jugement conformémentaux instructions qu’elle estimeappropriées, ou prohiber ouencore restreindre toute décision,ordonnance, procédure ou toutautre acte de l’office fédéral. [17] The remedy offered by the Respondent in his notice of motion is the "“usual”" relief granted by the Court in an application forjudicial review. Directions from a Court, in disposing of an application for judicial review, are rare, as discussed by the Federal Court ofAppeal in Canada (Citizenship and Immigration) v.

Tennant (2019), 2019 FCA 206 , 436 D.L.R. (4th) 155. [18] In Kiss v. Canada (Citizenship and Immigration), 2019 FC 1247, the Minister filed a motion, seeking an Order to allow theapplication for leave and judicial review. [19] The motion was opposed, principally on the grounds that the relief offered by the Minister in that case was not the relief sought inthe application for leave and judicial review.

The Minister’s motion was dismissed and the proceeding continues. [20] In the present case, the main argument advanced by the Applicant in opposition to the Minister’s motion is that he fears anotherrefusal, followed by another application for leave and judicial review.

He contends that the Officer ignored the "“directions”" of JusticeFothergill who, upon hearing the application for judicial review in respect of the second negative decision, granted the application andset aside the second refusal of the Applicant’s application for a study permit. [21] A remedy upon an application for judicial review lies within the discretion of the Court and generally, a successful application forjudicial review leads to quashing the decision under review and remitting the matter to a new decision-maker.

The Court will givedirections as to the outcome of a redetermination only in rare circumstances, as discussed by the Federal Court of Appeal in Tennant,supra. [22] At paragraph 72 of Tennant, supra, the Federal Court of Appeal described the limited circumstances where the Court can grant asubstituted decision as follows: …It is now well-established that this form of relief, a combination of certiorari and mandamus, is available where on thefacts and the law there is only one lawful response, or one reasonable conclusion, open to the administrative decision-maker,so that no useful purpose would be served if the decision-maker were to redetermine the matter. [citations omitted] [23] I am not persuaded that the Applicant has met the test set out in Tennant, supra.

There is no reason to depart from the usualdisposition of a successful application for judicial review, at least at this time. That does not foreclose the possibility of seekingdirections in a future application for judicial review, should same arise. [24] While judicial economy is a factor in the disposition of a motion such as the present one, it is not the determinative factor in thiscase. [25] In the result, the Respondent’s motion is granted, the decision of the Officer is set aside and the Applicant’s application for a study

permit is remitted to a different officer for redetermination. [26] The Applicant seeks costs upon this motion. [27] According to Rule 22 of the Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22 the Court mayaward costs in immigration matters for "“special reasons”".

Rule 22 provides as follows: 22 No costs shall be awarded toor payable by any party inrespect of an application forleave, an application for judicialreview or an appeal under theseRules unless the Court, forspecial reasons, so orders." " 22 Sauf ordonnance contrairerendue par un juge pour desraisons spéciales, la demanded’autorisation, la demande decontrôle judiciaire ou l’appelintroduit en application desprésentes règles ne donnent paslieu à des dépens." " [28] I agree with the submissions of the Respondent, that the Applicant has failed to show "“special reasons”" for the award of costs.

Iam not persuaded that there has been unnecessary and unreasonable prolongation of the proceedings, as the Court found in Bageerathanv. Canada (Minister of Citizenship and Immigration) (2009), 2009 FC 513 , 83 Imm. L.R. (3d) 111, where costs were awarded. [29] In the result, the Respondent’s Motion is granted, without costs. JUDGMENT in IMM-1527-22 THIS COURT’S JUDGMENT is that the application for judicial review is allowed, the decision of the Officer is set aside and thematter is remitted to a different officer for redetermination.

In the exercise of my discretion and having regard to the relevantjurisprudence, there is no Order as to costs. blank “E. Heneghan”blank Judge FEDERAL COURT SOLICITORS OF RECORD Docket: IMM-1527-22 STYLE OF CAUSE: IRFAN AHMED v THE MINISTER OF CITIZENSHIP AND IMMIGRATION MOTION IN WRITING CONSIDERED AT ST. JOHN’S, NEWFOUNDLAND AND LABRADOR PURSUANT TO RULE 369OF THE FEDERAL COURTS RULES REASONS AND JUDGMENT: HENEGHAN J.DATED: November 2, 2022 WRITTEN REPRESENTATIONS BY: G.

Michael Sherrit For The ApplicantDavid Shiroky For The Respondent SOLICITORS OF RECORD: Sherrit Greene Barrister and Solicitor Calgary, Alberta For The Applicant Attorney General of Canada Calgary, Alberta For The Respondent