Date: 19980128
Docket: IMM-4362-97
BETWEEN:
ANDREI KOURTCHENKO,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
REED, J.
[1] The respondent brings a motion to strike the applicant's originating notice of motion, which notice of motion seeks judicial review of a visa officer's decision of September 15, 1997.
[2] The motion to strike is brought on the ground that the decision of September, 15, 1997 is not a decision but a courtesy letter.
[3] The jurisprudence is clear that there is no jurisdiction to strike an originating notice of motion for judicial review: Pharmacia v. Minister of National Health and Welfare (1994), 58 C.P.R. (3d) 209 (F.C.A.); followed in Primetronics Inc. v. The Queen (T-1130-96, January 27, 1997) (F.C.T.D.); and having a precursor in Granville Shipping Co. v. Pegasus Lines Ltd. (1994), 86 F.T.R. 77.
[4] The whole purpose of the judicial review procedure is to allow matters to be decided in an expeditious way, without the delay attendant upon interlocutory motions (Pharmacia, supra). There is however jurisdiction to dismiss an originating notice of motion, on a summary basis, in exceptional circumstances. I will treat the respondent's motion as being of this latter type.
[5] I will first describe the background facts. The applicant was deported from Canada on December 2, 1996. Prior to that date, he had been found by a visa officer in Seattle to have "met the selection criteria" for a permanent resident "in the independent category". The reasons why the deportation occurred are not relevant for present purposes.
[6] Shortly thereafter, the applicant, through an immigration consultant, sought the Minister's consent, as required by subsection 55(1), to allow the applicant to re-enter Canada. On January 23, 1997, that request was denied. The refusal was communicated to the applicant's immigration consultant on January 28, 1997. The applicant's present counsel was hired by the applicant's girlfriend on February 17, 1997. Under the rules, the applicant had thirty days from the date of the communication of the refusal to him or his agent, within which to appeal the January 23, 1997 decision. The applicant was at this time in Moldova. The applicant's counsel was of the view that the refusal of consent had been made in error. He sent, on February 21, 1997, a letter to the writer of the January 23, 1997 letter seeking a reconsideration. He filed, on the same date, an application in the Federal Court for an extension of time within which to file an application for judicial review of the January 23, 1997 decision. He filed the application for an extension before the time limit had expired. On March 5, 1997 the respondent's counsel had filed submissions with the Court opposing the applicant's February 21, 1997, request for an extension of time.
[7] Mr. McLeman, the writer of the January 23, 1997 letter, responded to the February 21, 1997 request, by letter dated March 3, 1997. He stated that he would not reconsider the January 23, 1997 decision. He also stated that, the decision "can be reviewed by the Federal Court". Counsel for the applicant did not receive this letter until March 15, 1997. On March 17, 1997, the Court dismissed the motion for an extension of time (there was likely a paucity of evidence on the file).
[8] Counsel for the applicant continued to have communication with members of the respondent's department, concerning the basis of the January 23, 1997 refusal of consent. He understood that the refusal had been given because it was the officials' view that persons who were deported should not be granted permission to re-enter Canada until they had remained in the country to which they had been returned for a certain period of time.
[9] Counsel wrote, by letter dated August 23, 1997, to Mr. Springgay, the Program Manager at the Canadian Consulate in Seattle:
| Hugh Lovekin from Case Management has advised me that you refused to grant the "minister's consent" to Mr. Kourtchenko because (1) he had failed to depart Canada on his own accord after becoming subject to a ticking departure-order and (2) you felt that he should be compelled to return to Moldova before being permitted to immigrate. If this characterization does not accurately describe your rationale, please advise. If no clarification is received by 15 September 1997, you shall be deemed to have agreed that this characterization correctly states your rationale. |
| And, if the second rationale be correct, has Andrei spent enough time in strife-torn Moldova to warrant being permitted to immigrate? If so, would you, once apprised that he has paid another "cost-recovery" fee and the "head-tax" grant the "minister's consent"? If so, please be advised that Mr. Kourtchenko will gladly meet this requirement upon confirmation that he will have satisfied your personal criteria for ministerial consent. |
[10] Mr. Springgay wrote back, by letter dated September 15, 1997:
| This is in response to your letter dated August 23, 1997. I regret the delay in replying but I was on annual leave into the first week of September. |
| Mr Kourtchenko was removed from Canada by Immigration Enforcement Officers in Vancouver B.C., acting on their own behalf. Mr Kourtchenko was subsequently advised by Mr McLeman, in his correspondence dated January 22, 1997, why his request for Minister's Consent to re-enter Canada following his deportation was denied. As that letter also constituted the final decision on Mr Kourtchenko's application for permanent residence, I have nothing further to add to this matter at this time. |
| Your past correspondence suggests that Mr. Kourtchenko has made a new application for Minister's Consent through another office. This would afford him an opportunity to raise any new information he wishes to have considered. |
[11] It is the decision in this letter that is challenged in the present proceeding. Counsel for the applicant argues that it either constituted a completion of the decision making process that has been started at the earlier time, and with respect to which the January 23, 1997 letter was one step, or that it constitutes a new decision with respect to a new request as set out in the August 23, 1997 letter.
[12] The allegation that the September 15, 1997 letter is a completion of the decision making process, of which the January 23, 1997 letter was one step, is based on the argument that the January 23, 1997 decision was made by Mr. McLeman, who had no authority to make it, not by Mr. Springgay, who had that authority.
[13] Mr. McLeman in his correspondence of March 1, 1997, referred to the decision of January 23, 1997, as "my decision". However, in the January 23, 1997 letter, he states that he recommended the refusal and that the refusal decision was made by the Program Manager. An affidavit filed at the last minute by the respondent, attests that at the relevant date Mr. Springgay was that Program Manager. On the basis of this evidence I cannot conclude that the September 15, 1997 letter can be characterized as a decision with respect to the pre-January 23, 1997 request for the Minister's consent.
[14] The August 23, 1997 letter, while asking about the basis of the earlier decision, does so in the context of asking whether the applicant could expect to be given approval if he now reapplied for consent. The September 15, 1997 letter, is not responsive to that request. As I indicated during the hearing, the letter could be characterized as a non-answer, or perhaps "stonewalling".
[15] The September 15, 1997 letter, however, does not constitute a "decision" to which the judicial review procedures of this Court apply. Mr. Springgay has declined to answer the questions asked of him. That, I think he is entitled to do. It is polite to reply to enquiries that are received and, in this case, the applicant's counsel made it incumbent to do so because of the conclusions he stated would be drawn if no reply was received by September 15, 1997. Nevertheless, there was no legal obligation on Mr. Springgay to answer the letter. The Court could not have compelled him to respond to the enquiry. Had a judicial review of the January 23, 1997 decision been successfully commenced, the Court could have compelled an answer to the first question in the August 23, 1997 letter. However, that did not occur, and I have been referred to no authority that imposes a legal obligation on Mr. Springgay to answer either of the queries in the August 23, 1997 letter.
[16] For the reasons given an order will issue dismissing the application for judicial review.
"B. Reed"
Judge
Toronto, Ontario
January 28, 1997
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-4362-97
| STYLE OF CAUSE: ANDREI KOURTCHENKO |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: JANUARY 26, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: REED, J.
DATED: JANUARY 28, 1998
APPEARANCES:
Mr. Timothy E. Leahy
For the Applicant
Mr. Jeremiah A. Eastman
For the Respondent
SOLICITORS OF RECORD: Timothy E. Leahy
Barrister & Solicitor
Suite 408
5075 Yonge Street
North York, Ontario
M2N 6C6
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19980128
Docket: IMM-4362-97
BETWEEN:
ANDREI KOURTCHENKO
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER