Date: 19990219
Docket: IMM-642-98
BETWEEN:
VICTORIA KRACHENKO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is an application for judicial review of the decision of A. Nauman, Program Manager, Immigration Section, Canadian Consulate General, in Buffalo, New York, who refused to forward to the Canadian Consulate General, at Detroit, the applicant"s file, which the Canadian Embassy at Ankara agreed to transfer after having accepted the requisite fee for transfer of file.
RELEVANT FACTS
[2] The applicant was interviewed by a visa officer at Ankara on June 4, 1997 and her application was refused. A letter informing the applicant of the decision was mailed to her on July 23, 1997.
[3] On November 27, 1997, more than four months later, counsel for the applicant sent a letter to Mr. Brian Scofield, Counsellor and Program Manager at the Canadian Embassy, in Ankara, offering three options in descending order of preference: "a) reassess the decision in light of the "new information" and in accordance with the regulations and the facts; b) reopen the case upon payment of new processing fees, or c) transfer the file to Detroit".
[4] On December 3, 1997, Mr. Scofield answered to counsel: "I have reviewed this file and am satisfied that a proper decision has been made. Our file is closed but, as requested, we will transfer it to Detroit where a new fee and application will be required". (Emphasis added.)
[5] On January 15, 1997 [sic], Mr. Nauman, Program Manager, Immigration Section, Canadian Consulate General, in Buffalo, sent a letter to the applicant"s counsel confirming that the file had been transferred but repeated what was mentioned by Mr. Scofield that the file was closed and if the applicant wanted to file a new application, he would have to disburse new fee for that.
THE ISSUE
[6] The issue is whether the letter sent by Mr. Nauman to the applicant"s counsel on January 15, 1997, constitutes a decision reviewable by this Court.
APPLICANT"S RELEVANT ARGUMENTS
[7] The applicant suggests that the Immigration Act Fees Regulations do not empower anyone to re-route, or retain, a file destined for the immigration point of service for which the requisite transfer-fee was accepted and, therefore, the Regional Program Centre"s possession of the applicant"s file constitutes legal error and a wilful abuse of discretion.
[8] The applicant suggests that Mr. Nauman, Consul and Program Manager, at Buffalo, acted outside the scope of his authority when he presumed to act on behalf of personnel, at Detroit, by dictating the terms and conditions in order for action to resume on the applicant"s file, for which payment was accepted for return to Detroit.
RELEVANT RESPONDENT"S ARGUMENT
[9] It is the transfer of a closed file, the letter sent by Mr. Nauman on January 15, 1997 is not a decision, so there is no decision to review.
[10] The respondent"s counsel suggests that Mr. Nauman is not a visa officer, as it was not established, and pursuant to s. 82.1 of the Immigration Act , only a decision by a visa officer could be the object of a judicial review without leave and given that Mr. Nauman is not a visa officer, the applicant should have sought leave to file an application for judicial review; that was not done.
[11] The respondent concludes that it is an improperly commenced application.
ANALYSIS
[12] I have carefully reviewed the three letters that we are relating to and I have no difficulty to conclude that this letter sent by Mr. Nauman, on January 15, 1997, does not, in any way constitutes a decision.
[13] This file is closed and I understand that one of the objectives of this application is to seek reopening of the file and direction to a visa officer to reassess the applicant.
[14] I do not have any jurisdiction to do so.
[15] Relating to the costs, I received representations from the respondent"s counsel relating to her costs evaluated at $700.
CONCLUSION
[16] The application is dismissed with costs established at $700 to the respondent.
[17] The two parties have seven days from the day of this decision to suggest any serious question of general importance.
Pierre Blais
Judge
OTTAWA, ONTARIO
February 19, 1999
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