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Date: 20040715

Docket: IMM-3216-03

Citation: 2004 FC 995

Toronto, Ontario, July 15th, 2004

Present:           The Honourable Madam Justice Simpson                           

BETWEEN:

                                                                 IGOR BUROV

                                                                                                                                            Applicant

                                                                             

and

                                                                             

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                                                             

                                            REASONS FOR ORDER AND ORDER

[1]                This is an application pursuant to section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA") for leave to commence an application for judicial review under the Federal Court Act, R.S.C. 1985, c. F-7 of a decision of a visa officer dated March 3, 2003.

[2]                The undisputed facts are as follows:

-           On October 9, 2001, the Applicant's counsel in Toronto sent an application for permanent residence (the "Application") to the Canadian Embassy in Kyiv in the Ukraine. The Application was sent by courier and a cheque for $1,100.00 was enclosed.

-           Sometime in November of 2001, the Canadian Embassy returned the Application and the cheque to counsel in Toronto. The package included a form letter (the "Form Letter") which pointed out that the required fee was $1,500. The letter ended with the following statement "Please return this letter with correct/acceptable payment to this office so that we may continue processing you (sic) file".

-           On December 14, 2001, a cheque for $400.00 was obtained and the Application with the two cheques was sent back to Kyiv by ordinary mail.

-           The Application bears a received stamp of the Canadian Embassy in Kyiv dated January 23, 2002.


[3]                This factual background is important because the IRPA applied to applications received after January 1, 2002 and, if the IRPA applied, this Applicant's Application would have failed as he was awarded 71 points rather than 75 points he needed under the IRPA. However, if the former Immigration Act applied he could have become a permanent resident with the 71 points he received.

[4]                The issue, therefore, is whether the Application was made before January 1, 2002. The Applicant says that the Form letter means that it was made in the Fall of 2001. However, the Respondent says that the Application was made on the date it was received with full payment - January 23, 2002.

[5]                The Immigration Regulations which applied at the time said in section 2 that:

... an Application is not a duly completed Application until the prescribed fees in relation to it are paid.

[6]                In this case, it was open to the Canadian Embassy to retain the Application and the initial cheque and simply afford the Applicant the opportunity to perfect the Application by sending the additional funds. This action would have been consistent with the statement in the Form Letter.

[7]                However, it is clear that, notwithstanding the language of the Form Letter, the Canadian Embassy decided to send everything back to the Applicant's counsel for a fresh submission of the Application. This meant that there was, in fact, no continuing Application and, if a file had been opened in the Fall of 2001 (and there is no evidence that there was such a file) counsel agreed that it would have been empty. I have therefore concluded that, on the facts of this case; the Applicant's Application was not made until January 23, 2002.


[8]                At the Applicant's request, I considered the case of Xiao v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 731. However I concluded that, since it involved a situation in which an incorrect overpayment had been made (see paras 7, 8 and 11), it does not apply on facts of this case.

Certification

[9]                No question was posed for certification.

                                               ORDER

THIS COURT ORDERS that the Application is hereby dismissed.

   "Sandra J. Simpson"

                                                                                                   J.F.C.                       


FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           IMM-3216-03

STYLE OF CAUSE:               IGOR BUROV

Applicant

and

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

                                                     

PLACE OF HEARING:                     TORONTO, ONTARIO

DATE OF HEARING:                       JULY 13, 2004

REASONS FOR ORDER

AND ORDER BY:                            SIMPSON J.

DATED:                                              JULY 15, 2004

APPEARANCES:

Mr. Hart A. Kaminker                                       FOR THE APPLICANT

Mr. Tamrat Gebeyehu                                       FOR THE RESPONDENT

SOLICITORS OF RECORD:

Kranc & Associates

Toronto, Ontario                                                           FOR THE APPLICANT

Morris Rosenberg                                                         

Deputy Attorney General of Canada

Toronto, Ontario                                                           FOR THE RESPONDENT


FEDERAL COURT

                                  Date: 20040715

                      Docket: IMM-3216-03

BETWEEN:

IGOR BUROV    

                                            Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                        Respondent

                                                                  

REASONS FOR ORDER

AND ORDER

                                                                       


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