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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