Federal Court Decisions

Date: 20000224

Docket: IMM-6664-98

Ottawa, Ontario, this 24^th day of February 2000

PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER

BETWEEN:

LOYD SENGARAYAR

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

PELLETIER J.

[1]      At the conclusion of the argument of this matter, I gave judgment from the Bench allowing the application. Counsel requested the opportunity to certify a question.

[2]      The applicant submitted his visa application and the prescribed fees to the Canadian Consulate in Buffalo, New York on April 29, 1997. His application indicated that his wife would accompany him to Canada, but since no application or fees were included on her behalf, the application was not processed until her application and the required fees were submitted on August 28, 1997. In the meantime, the points awarded for Specific Vocational Preparation for the applicant"s occupation of bookkeeper were reduced on May 1, 1997, as were the points for experience with respect to that occupation. When the applicant was assessed on the criteria applicable as of August 28, 1997, he scored lower than he would have had he been assessed as of April 29, 1997. The question before me was the appropriate lock-in date for the selection criteria to be applied to the application.

[3]      The respondent took the position that the lock-in date was as specified in the Immigration Manual, Overseas Processing handbook which is the date the department has physical possession of the application as well as the correct and complete cost recovery processing fees. I ruled, in reliance on Wong v. Canada (1986) N.R. 309 (F.C.A.) and Yeung v. Canada (1992) 17 Imm. L.R. 191 that the lock-in date was the date of receipt of the applicant"s completed application and that the receipt of the wife"s application was merely a suspensive condition, as that phrase is used in Yeung, supra .

[4]      The decision of Mr. Justice MacKay in Feng v. Canada (Minister of Citizenship and Immigration) [1998] F.C.J. No. 1226 was not brought to my attention at the time this matter was argued. In that case, MacKay J. held that the effect of the Immigration Act Fee Regulations which provide that:

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.

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.

was that the lock-in date was fixed by the date the required fees were paid. In Feng, supra, the applications of both principal applicants were complete and the prescribed fees were paid but the fees in respect of the dependant child were not paid. MacKay dismissed the application for judicial review. His decision was based on the absence of fees alone whereas the present case involved the absence of an application as well as fees.

[5]      In light of my decision and the reasons in Feng, supra, I am prepared to certify the following question:

Where a visa application by an immigrant (the principal applicant) indicates that the immigrant will be accompanied by a dependant in respect of whom an application is required to be submitted and/or fees are required to be paid (the dependant applicant), is the date as of which the application is to be assessed the date on which the principal applicant"s completed application and all required fees are in the physical possession of the respondent, or is it the date on which all completed applications for the principal and dependant applicant(s) and/or all required fees are in the physical possession of the respondent?"

ORDER

     For the reasons stated above, the application is allowed and the matter is remitted to be considered by a different visa officer.

                                

"J.D. Denis Pelletier"

Judge