IMM-1479-96
BETWEEN:
JAGDEEP SINGH
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent.
REASONS FOR ORDER
SIMPSON, J.
Let the attached transcript of my Reasons for Order delivered orally from the Bench in Toronto, Ontario, the 18th day of October, 1996, now edited, be filed to comply with section 51 of the Federal Court Act.
(Sgd.) "Sandra J. Simpson"
Judge
Vancouver, B.C.
November 7, 1996
This is an application by Jagdeep Singh (the "Applicant") for judicial review, pursuant to Section 18.1(2) of the Federal Court Act, R.S.C. 1985, c. F-7 and Section 82.1(2) of the Immigration Act, R.S.C. 1985, c. I-2, of a decision (the "Decision") of a visa officer (the "Officer") in Buffalo, New York. The letter which refused the Applicant's application for permanent residence was dated April 15, 1996.
The Respondent has consented to an order setting aside the Decision and referring the matter back for redetermination by a different visa officer on the basis that the definition of "adoption" in section 2(1) of the Immigration Regulations, 1978, SOR/78-172 (the "Regulations") is to be applied. Accordingly, the only issue argued before me was the question of costs.
THE FACTS:
The Applicant, an Indian national, was born on October 6, 1957, and is single. He has resided continuously in Canada since 1981, pursuant to a series of student authorizations, a Minister's Permit and two visitor's visas. The last such visa expired on March 7, 1994. Accordingly, the Applicant is presently without status.
Since 1981, the Applicant has lived with his aunt, Surinder Kaur, who is also his adoptive mother. In 1970, Ms. Kaur, who is unmarried and childless, adopted the Applicant in accordance with Sikh traditions and culture. Soon after the adoption, Ms. Kaur emigrated to Canada. A formal adoption deed was executed in 1975.
On November 6, 1991, Ms. Kaur submitted an undertaking of assistance to sponsor the Applicant's current application for permanent residence. Approval of the undertaking was granted and, on June 1, 1992, the Applicant applied for permanent residence as a sponsored member of the family class.
The Applicant attended an interview with the Officer at the Canadian Consulate in Buffalo on January 20, 1993. The request for costs arises because, although the Decision was actually made nine months after the interview, it was not released to the Applicant until April 15, 1996.
The Officer's affidavit provides two explanations for the fact that the Applicant was not told of the Decision for two and a half years. Firstly, the Officer was apparently overwhelmed by an 800-case backlog and, secondly, in spite of her 18 years of service as a visa officer, she had never dealt with a file where a refusal letter required consideration of the legal requirements for recognizing adoptions in India.
After the Decision was made by the Officer on October 26, 1993, two years passed before she again addressed the file. This occurred on September 14, 1995, when she prepared a draft refusal letter. At that time, the Officer realized that she needed a precedent for a letter dealing with an Indian adoption and she asked the New Delhi Embassy to send her such a precedent. The precedent letters arrived in October or November of 1995. After their arrival, six more months passed before the refusal letter was released. In that period, the Officer deposes that she contacted Applicant's counsel by telephone to obtain the materials she needed to recommend extraordinary relief under Section 11(3) of the Regulations. However, her request to exercise positive discretion was turned down. Thereafter, she finally prepared the refusal letter dated April 15, 1996.
In the period from April 1993 to February 25, 1996, Applicant's counsel wrote ten letters asking for the status of the application, seven were written to the Officer's attention. She responded personally to the first letter and I take no issue with the contents or bona fides of her reply, even though, according to the computer notes, her reply may have been slightly out of date.
Thereafter, two form letters were sent on the Officer's behalf. The first was a form letter known as a BUF-28. The computer notes show that it was dated September 28, 1994. All it said was that:
| "You will be receiving a letter from our officer in the near future." |
The second BUF-28 was sent three months later on December 29, 1994. It stated:
| "Your application involves consultation with other visa offices, government departments or agencies. We will reply as soon as these consultations have been completed. We regret being unable to provide a specific time frame, but will reply as soon as possible." |
This information was inaccurate. The Decision had been reached and no consultations of any kind were underway. However, the Officer deposed in her affidavit of July 26, 1996 that, because this was a file in which a refusal letter had not been sent, the standard office practice was to reply to queries with a BUF-28 letter, indicating that consultations with other agencies were required.
Finally, Applicant's counsel received a fax on September 1, 1995, in answer to his inquiries. The fax merely said that the Officer was on leave, but would return and contact him early in September. As we have seen, this promise was not fulfilled.
As mentioned above, seven of the ten letters seeking the status of the application were sent to the Officer and there was only one meaningful response. Three more letters were sent to the Officer's supervisor, Mr. Oppertshauser. He is the senior immigration officer at the Canadian Consulate in Buffalo. The letters to him were written in November 1995, and in January and February of 1996. They described the delay. However, Mr. Oppertshauser never replied.
CONCLUSION:
Based on these facts, I have determined that the following special circumstances warrant a costs order in the Applicant's favour. The circumstances are:
| 1. The delay caused by the fact that the Officer did not address the file between October 1993 and September 1995; |
| 2. The use of a form letter, BUF-28, dated December 29, 1994, as a matter of office policy, without regard for its truth or accuracy in the circumstances of the case; and |
| 3. The fact that Mr. Oppertshauser never responded to correspondence from the Applicant's counsel. |
NAMES OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: JAGDEEP SINGH
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
COURT NO.: IMM-1479-96
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 18, 1996
REASONS FOR ORDER: SIMPSON, J.
Delivered from the Bench on: October 18, 1996
DATED: November 7, 1996
APPEARANCES:
Mr. Stephen W. Green for Applicant
Mr. John Loncar for Respondent
SOLICITORS OF RECORD:
Mr. Stephen W. Green for Applicant
Barrister & Solicitor
Toronto, Ontario
George Thomson for Respondent
Deputy Attorney General
of Canada