Date: 19990922
Docket: IMM-3635-99
BETWEEN:
TAJINDER DUTT
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
GILES A.S.P.:
- [1] The motion before me by the Minister seeks to strike a notice of application for judicial review of a visa officer"s decision and dismissal of the application on the grounds that the application was filed after the expiry of the 30-day time limit provided by section 18.1(2) of the the Federal Court Act.
| [2] The Minister alleges that the visa officer"s decision was contained in a copy of a letter dated May 27, 1999 which was mailed to the applicant on May 31, 1999. The notice of application was filed July 22, 1999. The Minister indicates that a letter dated June 12, 1999 was received from the applicant"s immigration consultants which indicates the letter of the visa officer was received before June 12, 1999. The applicant states he was not informed of the decision until June 22, 1999. |
| [3] It appears that the applicant was scheduled to be interviewed by the visa officer on February 15, 1999. By letter dated February 8, 1999 a counsellor at the immigration consultants" office advised that due to "unavoidable personal commitments" the applicant could not attend and asked that the interview be rescheduled. The interview was rescheduled for April 21, 1999. |
| [4] By letter dated April 16, 1999 a senior director ("director") of the consultants wrote to the Executive Deputy Program Manager at the Canadian High Commission in New Delhi ("the Manager") complaining about the conduct of the visa officer and advising that the clients of the consultant who had been scheduled for interviews with the visa officer had refused to appear for the interviews, and requesting the Manager to reschedule the interviews with another visa officer. |
| [5] By letter dated April 19, 1999 the director sent a list of clients scheduled with the visa officer and requested they be rescheduled for interviews with another visa officer. |
| [6] The applicant failed to attend the interview on April 21, 1999. By letter dated April 26, 1999 the visa officer advised the applicant that because of non-attendance his application could be refused, but because of a letter from the director advising that he refused to be interviewed by her she asked the applicant to advise of the reasons within 30 days. |
| [7] Also on April 26, 1999 the Manager wrote to the director refusing to reassign the interviews to another visa officer and advised him that the clients who refused to attend ran the risk of refusal for non-attendance. |
| [8] On May 10, 1999 the director wrote to the Manager responding to some of the statements in the April 26 letter of the Manager. By letter dated May 22, 1999 the director wrote to the visa officer requesting the visa officer to reschedule the interviews at the visa officer"s early convenience. This letter enclosed an undated letter from the applicant explaining why he did not attend before and asking for an interview date. |
| [9] On May 27, 1999 the visa officer wrote to the applicant care of the consultants, advising that his application for visa had been refused. By letter dated June 12, 1999 from the director to the Manager, the director advised, inter alia, that since he requested an adjournment of the interviews before the interview dates, and only received a reply after the dates, the rejection was not fair. The Manager was asked to look into the matter once again and reschedule the interviews. On June 16, 1999 the Manager informed the director he was not satisfied that the visa officer acted in error, or that any injustices had been rendered. "Accordingly, that file remains closed and no further action herein will be taken by this office on any of these applications." On June 22, 1999 the consultants advised the applicant his case had been refused. |
| [10] I note the letter from the visa officer on April 26, 1999 was addressed to the applicant care of the consultancy. The letter from the visa officer on May 27, 1999 was also addressed to the applicant care of the consultancy. The decision challenged is the decision of the visa officer of May 27, 1999. |
| [11] The applicant argues that his notice of application was not filed late because he was not notified of the refusal until June 22, 1999. The notification of the consultant was not notice to him, the party directly affected. The applicant cites Opisbo v. Minister of Employment and Immigration, 63 N.R. 31, as authority for the proposition that notice to a lawyer is not notice to the client. The applicant also cited Tarsen Singh Grewal v. Minister of Employment and Immigration [1985], 2 F.C. 263. The applicant further argues that even in cases where a refusal is communicated if an applicant makes further representations to the concerned tribunal and a second decision is made, the applicant may seek judicial review of the second decision and cites Independent Contractors and Business Association v. Canada (Minister of Labour) 225 N.R. 19 F.C.A. The applicant argues the Manager"s decision of June 16, 1999 was such a second decision. The applicant further argues that time should be extended. |
| [12] The respondent argues that receipt of the refusal by the applicant"s agent is receipt by the applicant and cites a number of cases and attempts to distinguish Opisbo v. MEI . |
| [13] The respondent states that the applicant indicated on his application that his mailing address was that of his counsel. The respondent argues that the visa officer"s decision is the only reviewable decision. The respondent correctly points out that the time for filing the notice of application cannot be extended as there is no motion to that effect. |
| [14] The decision sought to be reviewed is the decision of the visa officer which was made in May and communicated to the agents before June 12, 1999. The exchange between the Manager and the director is not the subject matter of the judicial review. The Manager is not the impugned tribunal and his decision, if any, was not a second decision of the same tribunal. The impugned decision was mentioned in the letter dated May 27, 1999 from the visa officer to the applicant and sent care of the agent at the agent"s address which was the address given for the applicant. In the Opisbo case the decision was sent to the applicant and to his lawyers and the Court of Appeal indicated it was the receipt of the copies sent to the applicant which mattered. Here, the only copy was that sent to the applicant in care of his agents. It was obviously opened by the agents who read it and acted upon it but, the evidence is, did not tell the applicant. The applicant having elected to be informed care of his agent is deemed to be informed when his agent is informed. Thus, the applicant must be deemed to have known of the impugned decision before June 12, 1999. The originating notice of application herein was therefore submitted late, was improperly filed and should be removed from the Court file as provided by Rule 74; however, no motion was brought under that Rule but rather a motion to strike. When considering whether the circumstances are such that the rare remedy of striking an application should be granted, I consider the fact that a motion under Rule 74, if brought, would probably have been granted, is sufficient to require that the motion to strike be granted. As previously noted, there being no motion to that effect an extension of time was not considered. |
ORDER
The notice of application herein is struck out.
"Peter A.K. Giles"
A.S.P.
TORONTO, ONTARIO
September 22, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-3635-99 |
| STYLE OF CAUSE: TAJINDER DUTT |
| - and - |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
CONSIDERED AT TORONTO, ONTARIO PURSUANT TO RULE 369.
| REASONS FOR ORDER AND ORDER BY: GILES A.S.P. |
| DATED: WEDNESDAY, SEPTEMBER 22, 1999 |
WRITTEN SUBMISSIONS BY: M. Max Chaudhary
For the Applicant
Ann Margaret Oberst
For the Respondent
SOLICITORS OF RECORD: M. Max Chaudhary
255 Duncan Mill Road
Suite 405
North York, Ontario
M3B 3H9
| For the Plaintiff |
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date:19990922
Docket: IMM-3635-99
Between:
| TAJINDER DUTT |
Plaintiff
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Defendant
| REASONS FOR ORDER |
AND ORDER
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