Federal Court Decisions

     IMM-2572-95

BETWEEN:

     CRAIG WHITTINGHAM

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

CULLEN J.:

     An appeal of a deportation order issued against the applicant was dismissed by Immigration Appeal Division Member R. Channan. The applicant requested written reasons for the decision by telephone transmission of a facsimile and regular mail within the prescribed time limit. The response from the Registrar was that because Member Channan was now medically incapacitated and incapable of resuming his duties for an indefinite period of time, no reasons could be issued for the decision.

     The central legal issue in this case has already been decided by Gibson, J. in Minister of Citizenship and Immigration v. Pinnock (6 November 1996), IMM-3139-95 (F.C.T.D.) (hereinafter, Pinnock). This case stands for the legal principle that the Immigration Appeal Division must give reasons for its decisions in order for a meaningful right of review to exist, as required by natural justice. The Pinnock decision is square on all fours with the case at bar.

     The Respondent argues that the applicant has not made out a case because the applicant did not serve its request for Member Channan's reasons properly, thus putting the applicant's request for reasons outside of the prescribed time limit by a few days. The basis of the Respondent's submission is that Rule 35(1) of the Immigration Appeal Division Rules requires that, if a document is to be served by telephone transmission of a facsimile, that "fax" must have a cover letter attached to it. The Respondent submits that there is no evidence that a cover letter was attached to the applicant's faxed request for reasons. Therefore, the faxed request cannot be considered to have been received by the Registrar within the prescribed time limit.

     The Respondent is clearly wrong in the above submission. There is no requirement for service of the request for reasons. Subsection 69.4(5) of the Immigration Act provides only that:

The Appeal Division shall forthwith give written reasons for its disposition of any appeal made pursuant to section 70 or 71 where either of the parties to the appeal has so requested within ten days after having been notified of the disposition of the appeal.

[emphasis mine]

There is no requirement for formal service of a request; the requirement is only that a request be made within ten days after notification of the disposition of the appeal. The applicant was notified of the disposition on September 12, 1995. The applicant's request for written reasons was sent by facsimile transmission and regular mail on September 19, 1995. This is well within the prescribed ten day limit.

This matter should be decided in accordance with the principle set out by Gibson J. in Pinnock, above. Accordingly, this application is allowed.

The applicant has requested costs under Rule 22. These are awarded only if special circumstances are present. However, the arguments advanced by the applicant, in this case, do not establish a case for such costs. In my view, after the decision in Pinnock, the applicant had a strong case. But, there was an honest argument advanced by the respondent, who was faced with a situation where it was impossible to present reasons. Perhaps the respondent could have been more courteous, but no case is made for costs under Rule 22.

     Counsel for the applicant has also moved that the applicant be returned at government expense. I can find no authority for such a move at this time.

OTTAWA

     B. Cullen

septembre 16, 1999

     J.F.C.C.