Date: 20000112
Docket: IMM-6672-98
BETWEEN:
LISTENE HAMALENGWA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
REED, J.:
[1] This is a motion by the respondent, which counsel agree should be dealt with under Rule 369 of the Federal Court Rules, 1998, that is, in writing and without personal appearance. The motion seeks to have the applicant's application dismissed, or alternatively to have certain affidavits struck from the record, and an extension of time granted to the respondent within which to file affidavits, with attendant extensions of time to allow for cross-examination on the affidavits of both parties, as well as for the completion of subsequent procedural steps.
[2] It is necessary to recount the unusual history of this application. On December 24, 1998, the application was filed seeking review of a visa officer's oral decision on November 27, 1998, refusing the applicant a student visa. I can locate no copy of a written refusal on the file. Counsel for the applicant in his motion record dated October 15, 1999, refers to a September 11, 1998, letter as fulfilling that role, but this letter pertains to the decision on an earlier application by the applicant.
[3] There is a notation on the applicant's second visa application (an application dated September 21, 1999) that explains the reasons for the refusal of that application as follows:
| - submitted wrong/untrue information |
| - been refused on the 12-08-1998 |
| - not a full time educational institution |
| - to [sic] few ties to Zambia |
| - very poor educational background |
| - CANNOT FIND SCHOOL REGISTERED ANYWHERE |
| submitted untrue information |
| - no ties/reasons to return |
| - it just does not make sense in view of his previous education. |
It is this decision that is the subject of the present application.
[4] On December 24, 1998, when the Notice of Application was served and filed, an affidavit in support of the application, sworn by Mr. Munyonzwe Hamalengwa, the applicant's brother, and also the counsel of record, was served and filed as well.
[5] The documentation from the visa office file, relevant to the application, was sent to the Court and to both counsel by the Canadian High Commission in Lusaka, under cover of a letter dated January 12, 1999.
[6] Nothing further was done with respect to the application until the Court sent a Notice of Status Review to applicant's counsel dated July 9, 1999, which sought an explanation as to why the application should not be dismissed for delay. Counsel responded that he had not done anything to pursue the application because he had not yet obtained a copy of the written refusal. (There still is no copy of that document on file.) While counsel for the applicant complains that counsel for the respondent made no representations with respect to the status review, this is not a valid ground of criticism since it was up to the applicant, not the respondent, to explain the delay.
[7] As part of his response to the Notice of Status Review, counsel for the applicant noted that as far as the applicant was concerned all the material relevant to the application had been served and filed the previous December, and he could file his application record within a few weeks if allowed to do so. An order of the Court, dated September 21, 1999, gave the applicant until October 15, 1999, to "file" his application record, and request a hearing date, failing which the application would be dismissed for delay.
[8] Applicant's counsel filed an application record on October 15, 1999, together with a handwritten affidavit of service, sworn, I understand, in the Court's Registry office because without it the record would not have been accepted for filing. The handwritten affidavit of service states that counsel has served the application record by fax. Counsel subsequently stated that he had left the motion record on the fax machine, when he left for the Registry, expecting it to proceed automatically as it always had before, but the fax jammed and the transmission was cancelled. Counsel hand delivered a copy of the application record to the respondent on Monday, October 18, 1999. He also asserts that he did not, in any event, need to serve the document before filing because the Court order of September 21, 1999, merely required him to "file" not "serve and file" the document.
[9] In my view, the Court order of September 21, 1999, must be read in the context of the Rules of procedure used in this Court. It must be read as meaning "file in accordance with the Rules" and this means serve and, then, file.
[10] Counsel for the respondent points out that counsel for the applicant swore a false affidavit when he said he had served the application record on the respondent by fax, when he had not. Also, counsel for the respondent notes that under the Rules, that document, being 44 pages in length, could not be served by fax unless the receiving party consented. In this case, consent from the respondent had neither been sought nor obtained.
[11] Counsel for the respondent also notes that the application record contains an affidavit of the applicant that had not been previously filed in accordance with Rule 306 of the Federal Court Rules, 1998, and that the main affidavit on which the whole application depends is one sworn by Mr. Munyonzwe Hamalengwa, who is also the solicitor of record.
[12] In the circumstances, I have decided that the most appropriate course of action is to dismiss the present application, with leave to the applicant to recommence his application by filing, within 30 days of the date of the present order, a new application with respect to the decision under review should he wish to do so. If a fresh application is commenced, the applicant shall include therein a request for a copy of the refusal letter, that relates to the November 27, 1998 decision, or an acknowledgement from the relevant visa office that such letter was never sent. The applicant's affidavits and documentation in support of the application shall be filed in accordance with Rule 306 of the Federal Court Rules, 1998 and the respondent's in accordance with Rule 307 of the Federal Court Rules, 1998. Opportunity for cross-examination, in accordance with Rule 308 of the Federal Court Rules, 1998, then, exists. If Mr. Munyonzwe Hamalengwa continues to be the main affiant on behalf of the applicant, he should anticipate that he may be denied the right to also act as the applicant's counsel (see Rule 82 of the Federal Court Rules, 1998). In addition, Rule 81 of the Federal Court Rules, 1998, prescribes the content of affidavits that are filed in support of, or in response, to an application.
[13] In summary then, the present application is dismissed, but the applicant has leave to commence an application fresh by the filing of a new Notice of Application, providing such is filed within 30 days of the date of today's order, that is on or before February 11, 2000.
Judge
OTTAWA, ONTARIO
January 12, 2000
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