Date: 20000510
Docket: IMM-550-99
BETWEEN:
BAHMAN ZEINALI,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
DENAULT, J.
[1] This is an application for mandamus filed by the applicant on February 8, 1999, seeking that his application for permanent residence in Canada be transferred from the Canadian High Commission in London to the Canadian Embassy in Syria and that a decision be rendered with regard to the said application.
Facts
[2] On October 28, 1996, the Canadian High Commission in London received from the applicant an application for permanent residence in Canada along with a bank draft dated May 17, 1996 in the amount of CAD $3,250.00. In response to question 7 of the application, under "Intended occupation in Canada", the applicant wrote "business", and under "highest level of schooling obtained", the applicant wrote "master in mechanical engineering".
[3] Because the applicant indicated that his intended occupation in Canada was business, the Canadian High Commission in London determined that he wished to be considered in one of the business immigration categories and not as an independent immigrant.1 On October 31, 1996, the Canadian High Commission forwarded a letter to the applicant indicating that they had received a draft in the amount of CAD $3,250.00 but that the fee for his application was CAD $3,575.00, leaving a balance of CAD $325.00 outstanding.
[4] By letter dated November 14, 1996, the Canadian High Commission noted that the applicant's application listed "business" as an intended occupation in Canada and that should he not wish to be assessed in the business category, the applicant should advise the Canadian High Commission of the specific occupation in which he wished to be assessed.
[5] More than three months later, on February 27, 1997, the applicant's counsel wrote to the Canadian High Commission to advise that the applicant's intended occupation in Canada was that of mechanical engineer and that he was currently seeking a confirmation of equivalencies from the Canadian Council of Professional Engineers. On February 28, 1997, as appears from the CAIPS entry for this date2, the Canadian High Commission acknowledged that the applicant now wished to be assessed as an independent immigrant. In an undated letter, the Canadian High Commission wrote to the applicant to advise him that his May 17, 1996 bank draft was out of date and could not be cashed.
[6] On April 23, 1997, the applicant's counsel wrote to the Canadian High Commission indicating that he had received the undated letter, that he would seek a new bank draft from the applicant and that he would provide them with an Informal Assessment of Qualifications for Engineers. On May 13, 1997, the Canadian High Commission received the Informal Assessment of Qualifications for Engineers of the Canadian Council of Professional Engineers, dated April 23, 1997.
[7] On September 16, 1997, as appears from the CAIPS notes of the same date, the applicant's file appeared in the electronic tracking system as over six months had elapsed since the original bank draft had been returned to the applicant. Since no fee had been received by the Canadian High Commission, the applicant's file was closed.
[8] On December 24, 1997, the applicant's counsel wrote to the Canadian High Commission to inquire about developments in the file. The letter was apparently not received by the Canadian High Commission. On February 27, 1998, the applicant's counsel again wrote to the Canadian High Commission to inquire as to the developments in the file. This was followed by a letter dated April 9, 1998, in which the applicant's representative continued to ask about the status of his client's application.
[9] In a letter dated April 15, 1998, Mr. Stéphane Larue, First Secretary at the Canadian High Commission, responded as follows3:
| En référence à votre fax daté du 9 avril 1998, je désire en premier lieu exprimer mes regrets de n'avoir pu répondre plus rapidement à votre requête. De plus, il semble que nous n'ayons pas reçu votre fax daté du 24 décembre. |
| Après une vérification du dossier en question, il semble que nos bureaux étaient toujours en attente de nouveaux frais de traitement du dossier. Vous vous rappelerez [sic] que le requérant avait décidé de changer de catégorie et qu'entre temps, la traite bancaire, émise initialement, avait expiré. Cette dernière fut retourner [sic] à vos bureaux en février 1997 et au mois d'avril suivant, vous nous avisiez qu'une nouvelle traite bancaire nous serait envoyée. Malheureusement, nous n'avons pas toujours reçu les frais et le dossier fut fermé en septembre 1997. |
| Il nous ferait plaisir de réouvrir [sic] le dossier sur réception des frais applicables. N'hésitez pas à me contacter si vous avez des questions. |
[10] Seven months later, on December 29, 1998, the Canadian High Commission received a new bank draft from the applicant in the amount of CAD $3,325.00 along with a letter requesting that the file be transferred to Damascus, Syria, as the applicant may not be in a position to obtain a visa to enter the United Kingdom.
[11] In an undated letter, apparently sent the same day according to the CAIPS notes for December 29, 1998 , the Canadian High Commission wrote to the applicant that, having not yet received the correct fees4, there was no application in process and therefore they were unable to transfer a file. The bank draft was returned to the applicant's representative. The letter also indicated that it might be opportune to send a new application to Damascus which would most likely request updated documents as they were now approximately four (4) years old.
Parties' arguments
[12] The applicant submits that the respondent should have accepted that the application for landing was duly filed and paid for on October 20, 1996 since a bank draft for the right amount was presented by him and since there was no obligation to indicate what he wished to be assessed under. The applicant also put forward the argument that the respondent's fax of April 15, 1998 by Stéphane Larue, created legitimate expectation for him and that these expectations are not barred by law.5
[13] The respondent submits that in the instant case, there was a discrepancy between the content of the application and the fees forwarded, that this discrepancy was a result of an unfortunate error on the part of the applicant and that the applicant failed to remedy this situation with due diligence in order to allow the Canadian High Commission to cash his bank draft within the prescribed six-month period. Regarding the issue of legitimate expectation, the respondent submits that the April 15, 1998 letter from Mr. Stéphane Larue of the Canadian High Commission did not mention that the date of reception of the applicant's original application (October 28, 1996) was the date retained for the purpose of the "lock-in" date. In any event, the respondent submits that Mr. Larue's letter cannot serve to overturn section 2 of the Immigration Act Fees Regulations.
Analysis
[14] As of October 28, 1996, when the Canadian High Commission received the applicant's application for permanent residence in Canada, the relevant portions of the Immigration Act Fees Regulations, (SOR/94-389), read as follows:
| 3.(2) Subject to subsection (4), the fee prescribed in paragraph 1(b) of the schedule is payable, at the time an application for landing is made, by an applicant other than an applicant referred to in subsection (1), (7) or (9). (My emphasis) |
(2) Sous réserve du paragraphe (4), le droit fixé à l'alinéa 1 b) de l'annexe est exigible, au moment de la présentation d'une demande d'établissement, d'un demandeur autre que le demandeur visé aux paragraphes (1), (7) ou (9). |
[15] On January 2, 1997, a new Immigration Act Fees Regulations, (SOR/97-22), came into force repealing the former Regulations. Section 2 of the Regulations now in force reads as follows:
| 2. In addition to any other requirement of the Act or the regulations made under the Act, an application is not a duly completed application until the prescribed fees in relation to it are paid. (My emphasis) |
2. Outre toute autre exigence de la Loi ou de ses règlements, une demande n'est pas dûment complétée tant que le prix applicable n'est pas acquitté. |
[16] In the circumstances of this case, I fail to see how the Canadian High Commission can be at fault for concluding that the applicant had filed a business application when this was written by the applicant as his "intended occupation in Canada". In so far as a business application generates higher fee, an additional $325.00 was required from the applicant. It is only on February 27, 1997, more than three months later, that the Canadian High Commission was advised that the applicant wanted to apply in the independent category as "mechanical engineer". Unfortunately for the applicant, his May 17, 1996 bank draft could not be cashed at the time, after a six-month period, due to a banking policy; so the bank draft was returned to him. Moreover, when the correction was made by the applicant, new Immigration Act Fees Regulations had been enacted.
[17] When informed that the bank draft could not be cashed, the applicant's representative undertook in April 1997 to seek a new cheque or draft, but it was forwarded to the Canadian High Commission only on December 29, 1998, long after the file had been closed in September 1997 due to the applicant's failure to send the correct processing fees. And still, that certified cheque for $3,325.00 had to be returned as insufficient, the amount being calculated upon a fee schedule over two years old.
[18] So, clearly, as of the date of the filing of the present application, the processing fees had not yet been forwarded nor cashed by the Canadian High Commission.6 In that sense, under either of the regulatory schemes above described, there is no application that can be processed or transferred by the Canadian High Commission. For that reason, there is no point in discussing the issue raised by the applicant with respect to the lock-in date.
[19] But did the letter of Stéphane Larue of the Canadian High Commission, dated April 15, 1998, create a legitimate expectation, as argued by the applicant, that his file would be reopened upon reception of the applicable fee? I do not share the applicant's view on that issue.
[20] Having stated that the file had been closed in September 1997, Mr. Larue, in his letter, only offered to reopen the file provided that processing fees be paid. In no way did Mr. Larue indicate that the date of reception of the original application (October 28, 1996) would be retained as the lock-in date nor did he mention that the fees then applicable had to be paid. In my view, the doctrine of legitimate expectation does not apply in the circumstances of this case.
[21] For these reasons, this application for mandamus is dismissed. There is no serious question to be certified.
____________________________
Judge
Ottawa, Ontario
May 10, 2000
__________________1 Affidavit of Keith Swinton, Second Secretary at the High Commission of Canada in London and the visa officer in charge of the applicant's application for permanent residence in Canada.
2 See p. 122 of the Tribunal's record.
3 See p. 27 of the applicant's record.
4 The Immigration Act Fees Regulations had been amended as of January 2, 1997, SOR/97-22.
5 Attorney General of Hong Kong v. Ng Yuen Shiu, [1983] 2 A.C., p. 629 (House of Lords); Council of Service Unions and others v. Minister for the Civil Service, [1984] 3 All.E.R., p. 935; M.C.I. v. Bendahmane, (April 10, 1989) A-84-87 (F.C.A.); M.E.I. v. Lidder, 16 Imm.L.R. (2d) 240 (F.C.A.); Demirtas v. M.E.I., (August 20, 1991) T-2845-90 (F.C.T.D.); Owusu-Baidoo v. Canada, (July 11, 1994) IMM-2627-93 (F.C.T.D.); Mumin v. M.C.I., (May 8, 1996) IMM-1574-95 (F.C.T.D.) Goel v. Canada (M.C.I.), [1998] F.C.J. no. 1881 (F.C.T.D).
6 The CAIPS notes indicate however that, as of 15 February 1999, after the filing of the application for a mandamus order: "Bank draft in the amount of $3,325.00 and covering letter now received from consultant."