Date: 20000609
Docket: IMM-684-99
BETWEEN:
YOUNUS MANN CHOUDHARY
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
DAWSON J.
[1] On December 23, 1998 the applicant, Mr. Choudhary, his wife and six children presented themselves at the Windsor Immigration Office for the purpose of being landed in Canada. They were in possession of valid immigration visas which were to expire on December 24, 1998.
[2] The senior immigration officer at the port of entry refused entry to Mr. Choudhary and his family. The officer was not satisfied that two of the children were Mr. Choudhary"s, nor was she satisfied that Mr. Choudhary had sufficient funds to settle his family in Canada.
[3] While Mr. Choudhary has sworn an affidavit in support of this application advising that he was most unhappy at the treatment he received from the senior immigration officer, this proceeding does not challenge her decision.
[4] Rather, Mr. Choudhary"s application for judicial review is brought in respect of what is asserted to be a decision of Ms. Robin Oprean, a visa officer then with the Canadian Consulate General in Buffalo, New York. Her "decision" was communicated by letter dated January 13, 1999 to Mr. Choudhary and stated:
| I refer to your fax of January 11, 1999, concerning your application for permanent residence in Canada. |
| Immigrant visas were issued to you, your wife and four children on November 27, 1996. Following notification from you that you had two other children that you did not previously inform us about, we set into motion the proceedings that would eventually lead us to reissue immigrant visas to you, your wife and eldest four children as well as issue immigrant visas to your two American born children. |
| The processing of the medicals for all eight family members was protracted and complicated by the fact that the medicals were being taken at different times resulting in different validity dates. When we finally received medical examination results for all of the family members, the results for Yusra and Ambreen had expired yet again. To avoid the necessity of having yet another set of medicals completed, a short extension to the validity of Yusra"s and Ambreen"s medicals was granted (for the second time). I am sorry that the validity of your immigrant visas was for only a short time but this seemed to be a better option than having yet another medical examination. |
| When you appeared at the port of entry to request landing on December 23, 1998, the immigration officer had concerns about the identify [sic] of your American born children as well as the amount of funds available for your settlement in Canada. As stated in our letter which accompanied your immigrant visas, upon your arrival at a Canadian Port of Entry you could be asked to provide proof that you hold sufficient funds for settlement in Canada. You were warned that failure to provide this information could affect your admissibility to Canada and otherwise delay or prevent your landing. The immigration officer had concerns that you did not have adequate funds to cover the costs of settlement. |
| The immigration officer telephoned me and we discussed your situation at length. Finally it is officials at the port of entry who determine whether or not individuals can be admitted whether as immigrants or visitors. Furthermore, when immigrant visas are issued they are valid for only a specified period of time. We are under no obligation to extend the validity of those visas or to take any action which would result in the re-issuance of immigrant visas. |
| Based on the fact that your original application was received here in March 1996, nearly three years ago and the original immigrant visas for you and five of your family members were issued in November 1996, I am not prepared to extend any further processing. If you remain interested in immigration to Canada, you will be required to submit new application forms as well as the requisite processing fees. Any application received in the future will be assessed under the criteria in effect at the time of receipt of such an application. |
| The Right of Landing fees paid on behalf of you and your wife will be refunded to you as soon as we receive your current address. |
[5] The record is deficient as to how that letter came to be written.
[6] Mr. Choudhary, in his forty-one paragraph affidavit filed in support of this application, swore only that:
| 37. I am therefor ready to transfer any settlement amount they think is reasonable to Canada before I land in Canada. I further swear that my two youngest children, Ambreen and Yusra are my own natural born children and that I am willing to provide blood tests to prove this. I also state that when we were turned back the immigration officer indicated to us that we would have an opportunity to straighten these problems out. A copy of her notes on this matter is attached as Exhibit "E". |
| 38. Rather than provide us with this opportunity to deal with these concerns Ms. Oprean cancelled our IMM1000's. I believe this was unfair. [underlining added] |
[7] No affidavit was filed in opposition to this proceeding.
[8] In material part, the report of the senior immigration officer at the port of entry, filed in accordance with subsection 20(1) of the Immigration Act, R.S.C.1985, c. I-2, as amended, states:
| Canadian Consulate in Buffalo was contacted and I spoke with R. Oprean. Everything was explained to her and she requested we return the IMM 1000S to her and she would contact the principal and set up an in person interview to clarify the discrepancies. |
| ... |
| Mr. Choudhary was asked to provide an address in the USA so that R. Oprean, at the Canadian Consulate in Buffalo could contact him and advise him when to approach the consulate to have this straight[en]ed out. |
[9] Ms. Oprean"s CAIPs notes of her December 23rd conversation with the officer at the port of entry in material part state:
| As soon as I get his current address I"ll look into the situation. It appears that if I decide to do anything at all for him (given concerns re his funds, employment history, identify etc) that an INTVW will be required. Given the validity of the meds and the fact that we"d have to start all over with meds again at minimum it seems that the best course of action would be to advise them they [ha]ve to start all over again. |
THE ISSUES
[10] In oral argument, Mr. Choudhary"s counsel pursued only two issues. The first was that the legal effect of the above events was that Mr. Choudhary was to be given an opportunity to address the concerns of the port of entry officer, that no opportunity was afforded to him to address those concerns and that this was a violation of a duty of fairness owed to Mr. Choudhary.
[11] The second issue was that a public officer may in certain circumstances be held to promises made by the officer.
[12] In reply, the respondent stated that Ms. Oprean made no decision which may be reviewed by the Court. It was submitted that her letter of January 13, 1999 was simply a courtesy response similar to that considered by the Court in Brar et al. v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. 1690 (F.C.T.D.).
ANALYSIS
[13] I have carefully reviewed the January 13, 1999 letter.
[14] This letter reviewed the history of the applicant"s application for permanent residence. With respect to the concerns of the officer at the port of entry, the letter set out those concerns, noted that the applicant had been warned that he might be asked at the port of entry to prove he held sufficient funds for settlement and advised that the decision as to who can be admitted to Canada is made by officials at the port of entry.
[15] In Dumbrava v. Canada (Minister of Citizenship and Immigration) (1995), 101 F.T.R. 230 (F.C.T.D.) Noël J. of this Court considered what constitutes a reviewable decision and stated:
| [15] ... Whenever a decision maker who is empowered to do so agrees to reconsider a decision on the basis of new facts, a fresh decision will result whether or not the original decision is changed, varied or maintained (Compare Peplinski v. Canada (Minister of National Health and Welfare) (1993), 58 F.T.R. 247 (T.D.)). What is relevant is that there be a fresh exercise of discretion, and such will always be the case when a decision maker agrees to reconsider his or her decision by reference to facts and submissions which were not on the record when the original decision was reached. |
[16] I conclude on the facts of this particular case that no reviewable decision was made by Ms. Oprean in her January 13, 1999 letter with respect to the decision to refuse entry. In so concluding, I note that no new facts were to be considered or were considered with respect to the refusal of entry and note, more importantly, that Ms. Oprean had no authority, nor did she purport to have authority, to make any decision to allow landing. That decision was within the authority of the officer at a port of entry and no review is sought of the December 23rd decision.
[17] Of more difficulty is whether or not the words "I am not prepared to extend any further processing" used in the letter of January 13, 1999 give rise to any remedy, either because they are of themselves reflective of a reviewable decision or because they indicate some breach of a duty of fairness owed to the applicant.
[18] From the record before me it appears that after the port of entry officer decided to refuse entry, matters were left that Mr. Choudhary was to provide an address in the United States so that Ms. Oprean could contact him and advise him when to approach the Canadian Consulate General in Buffalo. The purpose of such contact apparently was to be to straighten out in some unspecified manner the discrepancies in the documents which gave rise to concern as to whether all six children were Mr. Choudhary"s.
[19] The CAIPs notes of January 13, 1999, in evidence indicate that Mr. Choudhary faxed Ms. Oprean on January 11, 1999 requesting advice from the consulate. He did not provide any return address or phone number. In the result, Ms. Oprean"s January 13, 1999 letter was sent to his old address.
[20] That letter said in respect of the then-expired visas that they would not be reissued or reviewed, but that new forms would have to be submitted in order for new visas to be issued.
[21] Assuming, without deciding, that the decision to require a new application was a reviewable decision, I cannot on the slim evidence before me conclude that this was so unreasonable as to constitute a reviewable error.
[22] Nor can I conclude on the record before me that the decision that a new application would be required breached any duty of fairness. The evidence simply does not persuade me that this requirement for new applications would, in any way, be inconsistent with or a repudiation of an opportunity for Mr. Choudhary to "straighten" out or "clarify" matters of concern.
[23] The application for judicial review is, therefore, dismissed.
[24] With respect to certification of a question of public importance, Mr. Choudhary"s counsel asked for certification of a question to the effect that when a Minister"s representative makes an undertaking, the Minister"s delegates are bound. The respondent did not seek certification of any question.
[25] As in my view the evidentiary record does not support the question submitted by counsel for Mr. Choudhary, no question will be certified.
"Eleanor R. Dawson" _______________________________
Judge
Ottawa, Ontario
June 9, 2000