[1] The applicant, Dzezair Bahtijari, is a Slav of Muslim origin and a 44-year-old former citizen of Yugoslavia from the Kosovo region. Mr. Bahtijari applied for permanent residence in Canada as a government-sponsored refugee seeking resettlement in Canada. He brings this application for judicial review of the decision of the visa officer at the Canadian Consulate in Bonn, Germany, dated November 10, 1999. The nature of that decision is described more fully below.

[2] Since February of 1992, Mr. Bahtijari has resided in Germany as a conscientious objector to the war commenced by the regime of Slobodan Milosevic.

[3] The Canadian Consulate received Mr. Bahtijari's application for permanent residence in March of 1999. His application was refused by letter dated July 29, 1999 for the stated reasons that he had failed to comply with the provisions of subsection 9(3) of the Immigration Act, R.S.C. 1985, c. I-2 ("Act") and therefore came within the inadmissible class of persons described in paragraph 19(2)(d) of the Act, and that he did not meet the requirements for immigration to Canada because he did not fall within the definition of a Convention refugee. The refusal letter stated that due to the fact that the Serbian regime from which Mr. Bahtijari feared persecution was no longer in control of the Kosovo region, and due to the fact that the town from which he fled was one of the areas determined in conjunction with the KFOR commanders to have the necessary security conditions to guarantee a safe return, the grounds for his fear of persecution no longer applied. The refusal letter noted that "[o]ur interlocutors stress that Moslem or Albanian refugees from the Kosovo are generally speaking able to return now and that this is the basis for the mass returns being organised."

[4] In October of 1999, the consulate received further documents and submissions from the applicant relating to his application. By letter dated November 10, 1999, the visa officer informed Mr. Bahtijari that based on the information so provided, his case would not be reviewed.

[5] The parties differ fundamentally about the nature of the November 10, 1999 decision under review. The applicant argues that the purport of the November 10, 1999 decision is that it is a fresh decision refusing Mr. Bahtijari's application, which decision incorporates the reasons for refusal set out in the letter of July 29, 1999. The respondent argues that the purport of the visa officer's decision was that there was no reason for the visa officer to reconsider her earlier decision to refuse Mr. Bahtijari's application for permanent residence so that no reconsideration of the application would take place.

[6] In material part, the visa officer set out her decision in the letter of November 10, 1999 as follows:

This refers to my refusal dated July 29, 1999 of your application for permanent residence in Canada as a Convention Refugee seeking resettlement - government sponsored (CR1). The decision to refuse your application was made by a visa officer and a senior immigration officer concurred in this decision. I acknowledge receipt of your letter and documents received on October 28, 1999 but regret to inform you that I do not consider the information contained in it to warrant a review of your case. Please refer to the reasons outlined in my refusal letter of July 29, 1999 which show that it has not been overlooked that you are not of Albanian origin. I regret that the decision could not be more positive.

[7] In the affidavit sworn by the visa officer in opposition to this proceeding she swore that:

I saw no reasons for a review of original assessment and sent a letter on November 10, 1999 to the Applicant's agent and to the Applicant advising that I did not consider the information provided to warrant a review of his case. This letter is at page 4 of the tribunal record.

The visa officer was not cross-examined upon that evidence.

[8] Having carefully reviewed the wording of the November 10^th letter, the affidavit of the visa officer, and the submissions of counsel, I conclude that the November 10^th letter evidences the decision of the visa officer not to reconsider Mr. Bahtijari's application. That is, I find, the clear meaning of the words "I do not consider the information contained in [the letter of October 28, 1999] to warrant a review of your case".

[9] I further find that such decision did not incorporate the earlier decision of July 29, 1999 so as to make the earlier decision amenable to review in this proceeding. The opposite conclusion is not supported by either the wording of the letter of November 10^th or the evidence of the visa officer, nor would the opposite conclusion be consistent with the requirement of subsection 18.1(2) of the Federal Court Act, R.S.C. 1985, c. F.7 which requires that decisions of this type be challenged within 30 days of communication of the decision.

[10] It follows that the permissible scope of inquiry on this application for judicial review is confined to whether the visa officer reasonably concluded that reconsideration of her decision to refuse Mr. Bahtijari's application was not warranted.

[11] With respect to that decision, neither party submitted that the visa officer was functus officio on November 10, 1999 when she made her decision. The respondent observed that the case law is divided on the question of whether a visa officer who has rejected an application for landing in Canada has discretion to reconsider that decision, but submitted that it was not necessary to decide the issue in the present case.

[12] I agree because I have concluded that if the visa officer had discretion to reconsider her decision, she committed no reviewable error in her exercise of that discretion. This was the approach followed by Gibson J. in Bi v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 405 (F.C.T.D.) who described any such discretion to be a "pure discretion" and went on to consider whether the exercise of any such discretion not to reconsider was reasonably open to the visa officer.

[13] I have reviewed the documents and additional submission provided on Mr. Bahtijari's behalf in October of 1999. There was no new documentary evidence to support Mr. Bahtijari's claim of persecution at the hands of Albanians nor was there evidence contradicting the visa officer's finding of current country conditions.

[14] In view of that, Mr. Bahtijari has failed to satisfy me that it was unreasonable for the visa officer to conclude that the new information did not warrant a further review of the case.

[15] Any complaint which Mr. Bahtijari had with respect to the original decision should properly have been addressed through an application for judicial review of that decision.

[16] Having read the submissions of counsel on certification of a question, because I have found it unnecessary to consider the applicability of the doctrine of functus officio, no question is certified.

[17] Therefore for these reasons:

ORDER

[18] IT IS HEREBY ORDERED THAT:

The application for judicial review is dismissed.

"Eleanor R. Dawson"

Judge

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Bahtijari v. Canada (Minister of Citizenship and Immigration), 2001 FCT 657

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2001 FCT 657