Ismail v. Canada (Minister of Citizenship and Immigration)

Ismail v. Canada (Minister of Citizenship and Immigration) Court (s) Database Federal Court of Appeal Decisions Date 2006-12-05 Neutral citation 2006 FCA 396 File numbers A-482-06 Decision Content Date: 20061205 Docket: A-482-06 Citation: 2006 FCA 396 CORAM: DÉCARY J.A. NOËL J.A. NADON J.A. BETWEEN: WAFFA AZIZ ISMAIL, SAMIR ABDULHADI ABBAS, MURAD SAMIR ABDULHADI ABBAS, AWS SAMIR ABDULHADI ABBAS and MANAR S. ABDULHADI Appellants and THE MINISTER OF CITIZENSHIP AND IMMIGRATION and ATTORNEY GENERAL OF CANADA Respondents Dealt with in writing without appearance of parties. Order delivered at Ottawa, Ontario, on December 5, 2006. REASONS FOR ORDER BY: DÉCARY J.A. CONCURRED IN BY: NOËL J.A. NADON J.A. Date: 20061205 Docket: A-482-06 Citation: 2006 FCA 396 CORAM: DÉCARY J.A. NOËL J.A. NADON J.A. BETWEEN: WAFFA AZIZ ISMAIL, SAMIR ABDULHADI ABBAS, MURAD SAMIR ABDULHADI ABBAS, AWS SAMIR ABDULHADI ABBAS and MANAR S. ABDULHADI Appellants and THE MINISTER OF CITIZENSHIP AND IMMIGRATION and ATTORNEY GENERAL OF CANADA Respondents REASONS FOR ORDER DÉCARY J.A. [1] One of the appellants was found by a visa officer to be a senior official in the Iraqi government and, as a consequence, neither he nor his family was admissible to Canada. Judicial review of that decision was denied by Phelan J., who refused to certify a question. The appellants filed a motion for reconsideration under Rule 397 and for setting aside under Rule 399. The motion was also dismissed. The appellants filed a Notice of Appeal in this Court respecting the latter decision. They were asked by the Court to explain why, in the absence of a certified question, the appeal should not be dismissed for want of jurisdiction. [2] The appellants argue that Phelan J. refused to exercise his jurisdiction in not ruling on the issue of invalidity of translated documents in the Visa Officer’s Record. Even if I were to assume for the sake of discussion that such refusal could be qualified as a refusal to exercise jurisdiction, the problem for the appellants is that the Judge did actually rule on the issue. [3] The appellants also argue that the decision was rendered without an oral hearing, raising the issue of denial of a fair hearing. Again assuming for the sake of discussion that the issue is such as to be capable of being raised without a question being certified, the argument is so devoid of any merit that this Court should not allow this matter to go further. [4] I wish only to add that the statutory prohibition on appeals in immigration matters unless a question is certified pursuant to paragraph 74(d) of the Immigration and Refugee Protection Act would be meaningless if it could be circumvented simply by filing a motion under Rule 397 or Rule 399. [5] The appeal will be quashed for lack of jurisdiction and the respondent, the Minister of Citizenship and Immigration, should be entitled to his costs, which I will assess at $400.00. The Attorney General of Canada is not a proper party respondent. “Robert Décary” J.A. “I agree Marc Noël J.A.” “I agree Marc Nadon J.A.” FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-482-06 STYLE OF CAUSE: Waffa Aziz Ismail, Samir Abdulhadi Abbas, Murad Samir Abdulhadi Abbas, Aws Samir Abdulhadi Abbas and Manar S. Abdulhadi v. The Minister of Citizenship and Immigration and Attorney General of Canada MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES REASONS FOR ORDER BY: Décary J.A. CONCURRED IN BY: Noël J.A. Nadon J.A. DATED: December 5, 2006 WRITTEN REPRESENTATIONS BY: Mr. Umesh I. Vyas FOR THE APPELLANT Mr. Rick Garvin FOR THE RESPONDENT SOLICITORS OF RECORD: UMESH VYAS LAW OFFICE Calgary, Alberta FOR THE APPELLANT MR. JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Edmonton, Alberta FOR THE RESPONDENT