2021 FC, 2021 FC 1097

Date: 20211018 Docket: IMM-4492-21 Citation: 2021 FC 1097 Ottawa, Ontario, October 18, 2021 PRESENT: Madam Justice Walker BETWEEN: SIYU ZHAO, JING WANG AND BOSCO WANG Applicants and THE MINISTER OF CITIZENSHIP AND IMMIGRATION AND THE MINISTER OF JUSTICE Respondents ORDER AND REASONS [ 1 ] The Applicants have filed a Motion in writing pursuant to Rule 369 of the Federal Courts Rules , requesting the following: 1. an order compelling disclosure of the names and position(

s) held of (

a) the person(

s) who claims that Siyu Zhao adduced a fraudulent divorce certificate and (

b) the person(

s) who claims that Jing Wang made a material misrepresentation his case, IMM-2967-20; 2. an order requiring the respondents either to adduce the evidence on hand on 2 June 2021 that the divorce certificate is fraudulent or admit that they have no evidence that the divorce certificate is fraudulent; 3. a direction, if the Court finds that the respondents failed to adduce credible evidence that the divorce certificate is fraudulent, directing the Hon. David Lametti or his designee to consent to a direction obliging the Hon.

Marco Mendicino to grant permanent residency to the applicants within thirty (30) days of release of this Order or pay each applicant $500 per day until the applicants become permanent residents of Canada; and 4. an order prohibiting initiation of enforcement action while this case is proceeding. [ 2 ] In the underlying judicial review application (Application), the Applicants seek judicial review of a decision (Decision) of an Immigration Officer dated June 17, 2021, denying the application for permanent residence of Ms. Siyu Zhao, one of the Applicants. The Officer found that Ms.

Zhao is inadmissible for misrepresentation pursuant to paragraphs 40(1) (

a) and 42(1) (

a) of the Immigration and Refugee Protection Act ( IRPA ) . [ 3 ] The Applicants are self-represented in the Application and in this Motion. In support of the Motion, Ms. Zhao relies on her Affidavit dated July 5, 2021. [ 4 ] In this Motion, the Applicants seek (1) disclosure of the name and position of the Immigration Officer, and any other decision makers who have accused the adult Applicants of fraud, and (2) the evidence on which the alleged fraud rests.

In the absence of such evidence, the Applicants seek an order directing the granting of permanent residency to them and an order prohibiting initiation of any enforcement action for the duration of this Application. [ 5 ] It is useful to emphasize that this Motion is brought in the context of an application for judicial review of the Decision. The legislative framework and process for the Court’s consideration of the Application is set out in the Federal Courts Act and the Federal Courts Citizenship, Immigration and Refugee Protection Rules ( FCIRPR s).

In addition and absent any inconsistency, Rule 4(1) of the FCIRPR s contemplates the application of certain of the Federal Courts Rules to applications for judicial review of immigration decisions. [ 6 ] Since the filing of the Notice of Motion, the Applicants have received the Decision and written reasons for the Decision in accordance with Rule 9 of the FCIRPR s.

The Applicants allege in reply that they have no confidence that the purported reasons sent to them represent the contemporaneous reasons of the Immigration Officer or that the reasons have not been improved or that incriminating material has not been excised. I find that the Applicants’ statements in this regard are speculative and have no basis in the record. [ 7 ] One part of the Applicants’ Motion is a request for disclosure of the name and position of the decision maker in Mr. Jing Wang’s case, in which a visa officer in Beijing, China, determined that Mr.

Wang had made a material misrepresentation and was inadmissible to Canada pursuant to paragraph 40(1) (

a) of the IRPA . Mr. Wang’s case is the subject matter of a separate application for judicial review in this Court (IMM-2967-20). The present Application does not pertain to that matter, although the two are related. Questions regarding disclosure and the merits of the findings in Mr. Wang’s case are properly raised in the course of IMM-2967-20. [ 8 ] In their reply submissions, the Applicants take issue with the fact that the Respondents included with their motion record an affidavit sworn by a paralegal of the Department of Justice and not the Immigration Officer. However, the affidavit in question was filed to place

before the Court basic documentation relevant to the Application and is not improper. This Motion focuses on procedural requests made by the Applicants and does not address the merits of the Application. [ 9 ] As stated above, the Applicants request disclosure of the name and position of the Immigration Officer. They submit that they have the right to confront their accuser as a principle of procedural fairness and that, further, they have no evidence that the Immigration Officer is in fact an officer referred to in subsection 11(1) of the IRPA who was authorized to make the Decision. [ 10 ] The Applicants rely on the paragraphs 3(3)(

b) and (

d) of the IRPA and the references in those provisions to accountability and transparency, and the importance of ensuring that decisions taken under the IRPA are consistent with the Canadian Charter of Rights and Freedoms , in support of the disclosure request but I am not persuaded by their arguments. Subsection 3(3) sets out general principles that guide the

interpretation of the IRPA . The subsection does not require disclosure of a decision maker’s identity nor have the Applicants established the relevance of the individual’s name either to their ability to know the case they have to meet or to challenge the Decision in the course of the Application. [ 11 ] As a related argument, the Applicants submit that they require the Immigration Officer’s name and position and the place where the Decision was made as there is no evidence that the Immigration Officer is an authorized officer. They argue that the Court cannot assume this fact without evidence. I do not agree.

The Applicants point to no evidence or suggestion in the record that the Immigration Officer is not, or may not be, an officer of Immigration, Refugees and Citizenship Canada, duly authorized to function as the decision maker. The jurisprudence cited by the Applicants does not require that the Respondents establish in each case and as a preliminary matter the appointment of the individual decision maker to their position. [ 12 ] The Applicants’ second request is for disclosure of the evidence before the Immigration Officer when the determination was made that they had produced a fraudulent divorce certificate.

The Applicants argue that, without that evidence, they cannot satisfy their obligation to disprove the allegation of fraud and contest the Decision. [ 13 ] The disclosure to which the Applicants are entitled is a copy of the Certified Tribunal Record (CTR), a record that will contain all of the relevant information before the Immigration Officer. The timing of the disclosure of the CTR is set out in

section 17 of the FCIRPR s. The Applicants have established no basis on which the Court should deviate from the statutory process applied to each application for judicial review that falls within the scope of the IRPA and the FCIRPR s. The general provisions of the Federal Courts Rules do not displace the specific requirements of the FCIRPR s.

Should the Applicants establish a fairly arguable case and obtain leave, they will have full opportunity in their further memorandum of fact and law to address any alleged evidentiary deficiencies that may render the Decision unreasonable. [ 14 ] I have reviewed the record pertaining to this Application to confirm that it has followed the customary process for the Court’s review of a refusal of an application for permanent residence.

Although the Applicants refer to deliberate concealment and prejudice, there is no evidence in the record to this effect. [ 15 ] Finally, the Applicants’ request that I order the suspension of any enforcement action pending the resolution of this Application is premature. The Applicants speculate that they may be subject to enforcement action. If enforcement action is taken against the Applicants, they will have the opportunity to consider their available means to contest such action in accordance with the IRPA . [ 16 ] For the foregoing reasons, I dismiss the Motion.

ORDER IN IMM-4492-21 THIS COURT ORDERS that : 1 . The Applicants’ motion is dismissed. 2 . No costs are awarded. "Elizabeth Walker" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-4492-21 STYLE OF CAUSE: SIYU ZHAO, JING WANG & BOSCO WANG v THE MINISTER OF CITIZENSHIP AND IMMIGRATION AND THE MINISTER OF JUSTICE

MOTION IN WRITING CONSIDERED AT OTTAWA, ONTARIO PURSUANT TO RULE 369 OF THE FEDERAL COURTS RULES order and REASONS: WALKER J. DATED: October 18, 2021 WRITTEN REPRESENTATIONS BY: Siyu Zhao and Jing Wang For The Applicants (ON THEIR OWN BEHALF) Brad Gotkin For The Respondents SOLICITORS OF RECORD : Attorney General of Canada Toronto, Ontario For The Respondents