Date: 20020313
Toronto, Ontario, Wednesday, the 13th day of March, 2002
PRESENT: The Honourable Mr. Justice McKeown
BETWEEN:
ASHVINKUMAR PATEL
Applicant
- and -
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
The application for judicial review is granted. The matter is returned to a different Visa Officer for consideration and redetermination in accordance with the Immigration Act, R.S.C. 1985 and the Immigration Regulations, 1978 as of April 28, 1997 and under the CCDO. The decision of the Visa Officer dated December 14, 1999 is quashed.
"W.P. McKeown"
J.F.C.C.
Date: 20020322
Docket: IMM-495-00
Neutral citation: 2002 FCT 318
BETWEEN:
ASHVINKUMAR PATEL
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
(Reasons delivered orally on March 13, 2002, as edited)
McKEOWN J.
The applicant seeks judicial review of a decision of the visa officer dated December 14, 1999, in which the applicant's application for permanent residence was refused.
ISSUE:
Did the visa officer err in returning the bank draft in the amount of $2,246.00 U.S. by treating it as $2,246.00 Canadian when the fee in Canadian Dollars was $3,050.00?
FACTS:
The facts are simple in this case. The applicant submitted an application for permanent residence to the Canadian High Commission in New Delhi India, which application was received on April 28, 1997. With the application the applicant submitted a bank draft equal to $2,246.00 in U.S. Dollars.
By letter dated May 7, 1997, the applicant was advised:
In order to commence processing of your application, we require a new fee of CAD - 3050 in the form of bank draft in favour of "Canadian High Commission". This is due to change in the currency exchange rate.
Your old bank draft for CAD 2246 is returned herewith.
It should be noted that there is a clear error in this letter. The applicant had submitted $2,246.00 U.S., but the letter states that he submitted $2,246.00 Canadian.
The CAIPS notes indicate:
RECD INCORRECT FEE. RETURNED IT AND CORRECT AMT OF FEE REQUESTED.
The correct amount in Canadian dollars was received by the respondent on May 7, 1997.
As a result, the respondent considered the applicant's application to be "locked-in" subsequent to May 1, 1997. This date is significant because all applications received prior to May 1, 1997, were assessed using the Canadian Classification and Dictionary of Occupations ("CCDO"). All applications subsequent to that date were assessed using the National Occupation Classification ("NOC").
The case of Xiao v. Canada (Minister of Citizenship and Immigration) [1998] F.C.J. No. 731 makes it clear that where an overpayment is made the date of the application will be considered to be the date on which the fee was received. In the case before me the question of whether payment can be made in U.S. Dollars does not arise because the visa officer erred in treating the bank draft as a Canadian Dollar draft instead of a U.S. Dollar draft and wrote the applicant that he had not paid sufficient funds. There is no issue that the draft in the amount of 2,246 U.S. Dollars was in excess of the fee required of 3,050 Canadian Dollars. There is no evidence before me that the application was rejected because it was in U.S. currency. While this might be a valid reason for rejecting the application, in this case it was rejected because of an administrative error made by the respondent.
For these reasons I have concluded that the visa officer should have applied the CCDO criteria instead of the NOC criteria since the application was received prior to May 1, 1997, namely, April 28, 1997.
The application for judicial review is granted. The decision of the visa officer dated December 14, 1999 is quashed. The matter is returned to a different visa officer for consideration and redetermination in accordance with the Immigration Act, R.S.C. 1985 and the Immigration Regulations, 1978 as of April 28, 1997 and under the CCDO.
"W.P. McKeown"
J.F.C.C.
Toronto, Ontario
March 22, 2002
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-495-00
STYLE OF CAUSE: ASHVINKUMAR PATEL
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: WEDNESDAY, MARCH 13, 2002
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: McKEOWN J.
DATED: FRIDAY, MARCH 22, 2002
APPEARANCES BY: Mr. M. Max Chaudhary
For the Applicant
Ms. Pamela Larmondin
For the Respondent
SOLICITORS OF RECORD: M. Max Chaudhary
Chaudhary Law Office
18 Wynford Drive
North York, Ontario
M3C 3S2
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20020322
Docket: IMM-495-00
BETWEEN:
ASHVINKUMAR PATEL
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER