Rozenkovicius v. Canada, docket IMM-562-97

     IMM-562-97

Between:

     VLADIMIRAS ROZENKOVICIUS,

     Applicant,

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

     Respondent.

     REASONS FOR ORDER

Muldoon, J.

     On February 7, 1997, the applicant filed an originating notice of motion seeking:

1.      An Order for a Writ of Certiorari quashing the negative decision of the First Secretary, John Macdonald [sic], of the Canadian Embassy in Warsaw, Poland, which was rendered on January 1, 1997 and received on January 13, 1997 whereby the Applicant's Application for Permanent Residence was refused.

2.      An Order for a Writ of Mandamus directing the Respondent to process the Applicant's Application for Permanent Residence, or in the alternative, referring the matter to a different Visa Officer for redetermination of the Application for Permanent Residence in Canada.

*** *** ***

THE APPLICANT IS SEEKING Judicial Review of the decision of the First Secretary, John MacDonald, currently employed at the Canadian Embassy in Warsaw, Poland. The decision of the Visa Officer was rendered on January 1, 1997 and was communicated to the Applicant by way of a letter dated January 1, 1996 [sic] and received by counsel for the Applicant on January 13, 1997.

THE GROUNDS FOR THE APPLICATION ARE AS FOLLOWS:

(a)      The Respondent based his decision on erroneous findings of fact that was made in a perverse or capricious manner or without regard to the material before him.

(b)      The Respondent's decision is based on an error of law which is apparent on the face of the record;

(c)      The Respondent erred in law in his interpretation of the Immigration Act and Regulations; and

*** *** ***

THE FOLLOWING DOCUMENTARY EVIDENCE will be relied on at the hearing of the Application for Judicial Review:

1.      The Affidavit of Vladimiras Rozenkovicius, sworn January 31, 1997;

2.      Such further and other Affidavits as the Applicant will require;

3.      The file of the Applicant located at the Canadian Embassy in Warsaw, Poland

*** *** ***

The Applicant requests that the Canadian Embassy, in Warsaw, Poland, send certified true copies of all the material in the Applicant's file no. B0248 17413, that is in its possession, to the Applicant and to the Registry.

*** *** ***

.      On March 10, 1997, the respondent filed a notice of motion, in this matter, seeking:

(a)      An Order dismissing this application;

(b)      in the alternative, an Order extending the time for filing the Respondent's affidavits in this matter until 30 days following the Order of the Court;

on the following expressed grounds:

(a)      On January 1, 1997 (although the refusal letter is dated January 1, 1996), the applicant's application for landing was refused by the Respondent's visa officer in Warsaw, Poland;

(b)      The Applicant, through his counsel, asked the visa officer on January 14, 1997 to re-consider the decision;

(c)      On February 7, 1997, the Applicant commenced this application;

(d)      On February 10, 1997, the Applicant was advised that the visa officer had re-considered the matter. The Applicant was given a new decision letter dated February 10, 1997;

(e)      In early March, 1997, the Respondent's solicitor contacted the Applicant's solicitor to inquire whether he [sic] Applicant intended to proceed with this application, in the circumstances. The Applicant's solicitors advise that they intend to proceed;

(f)      This application is now moot, given that the applicant has, at his request, had the benefit of a new decision from the visa office;

(g)      It is unfair for the Applicant to request a review of the visa officer's original decision, to receive the benefit of having the decision reviewed, and then to ignore the fact that the decision has been reviewed and insist on proceeding with a judicial review of the original decision;

(h)      It is impractical and unnecessary to conduct a judicial review of a decision which both parties know has been superseded by a subsequent decision;

*** *** ***

     The affidavit of Stephen W. Green, sworn March 18, 1997, in response to the respondent's motion exhibits John MacDonald's January 1, 1996 [sic] letter to the applicant mentioned in his originating notice, all right, but that originating motion coyly mentions no other subsequent letters from the Warsaw embassy written later at the applicant's lawyers' behest. That correspondence is revealed by the applicant only after the institution of the respondent's motion on March 10, 1997.

     Mr. Green's exhibit A is a copy of Mr. MacDonald's rejection letter dated January 1, 1996 [sic] received by the applicant's lawyers on January 13, 1997. Neither the lawyers nor the applicant liked that one, so his lawyers, Green and Spiegel, that very day wrote (and communicated by facsimile copy) to Mr. Al Lukie, counsellor at the Warsaw embassy quoting the disagreeable and quite possibly wrong passage from the above noted letter with the wrong date, and suggesting to Mr. Lukie "Perhaps, you [Lukie] may want to review this [Rozenkovicius] file in order to prevent any embarrassment to your office. I [Green] await your response."

     Why, how incredibly strange of Mr. Green to invite such a response from the Warsaw embassy, and now to repudiate the very correspondence which he sought as being null and void! How can one reconcile this behaviour with Mr. Green's status as a member of the Law Society of Upper Canada and, therefore, an officer of this Court? This could be a case for costs payable personally by counsel.

     On February 10, 1997, Counsellor Lukie replied to Mr. Green (exhibit C) in these very words:

Re: (Rozenkovicius) Vladimiras DOB 30Oct59

I refer to your communication of 14 January 1997 [no doubt received next day in Warsaw] and your suggestion that I review this file. I regret the delay but I have been out of the office for a bit as a result of illness.

I thank you for your suggestion as indeed this letter did not accurately reflect the reasons why Mr. Rozenkovicius was refused.

I have thoroughly reviewed the file and interview notes which reflect the judgment that Mr. Rozenkovicius was most unlikely to succeed as a self-employed person and therefore would not make the required significant contribution to the economy. He lacks knowledge of the Canadian market place, the abilities, skill sets, experience and language that would enable him to succeed. The reference to Mr. Rozenkovicius's plan to hire other employees is not relevant to the decision about him.

The interviewing officer has been asked to accurately elaborate on the reasons for refusal.

A second refusal letter is attached for you to forward to your client.

Thank you again for bringing this case to my attention.

On the evidence there is no mention of Mr. Green faxing back during that delay to tell the Warsaw embassy not to bother replying to his January 13/14 letter because any reply such as he had requested would be repudiated as a waste-of-time "courtesy response", just a nullity quite outside any visa officer's jurisdiction. One would think that the lawyer would have had the professional courtesy to do that, during the long delay of January 14 to February 10, before he received the reply which he had requested. One would think that since the applicant's lawyers now raise in their written submissions against the reply which they sought, already published jurisprudence, to wit: Soimu v. Secretary of State (1994) 83 F.T.R. 285 and Dumbrava v. M.C.I. (1995) 31 Imm.L.R. (2d) 76, they would have not waited 'til February or March, 1997. The applicant's lawyers end their written submissions thus:

Please treat this letter [filed March 18/97, doc. 10] and the Affidavit of Stephen W. Green as the Applicant's submissions filed in opposition to the Respondent's motion seeking an Order dismissing the application and in the alternative an Order extending the time for filing the Respondent's Affidavits in this matter until 30 days following the Order of the Court.

It ought to be noted that the applicant's lawyers' request also induced Mr. MacDonald to provide a revised letter of rejection also dated February 10, 1997 (Green: exhibit C, and Siskos: exhibit B). However, the applicant's lawyers repudiate also this which they induced.

     On the basis that the applicant rejected the visa officer's decision of January 1, 1996 [sic - 1997] and succeeded in inducing that officer to give a revised decision dated February 10, 1997 in regard to which the applicant has not sought judicial review at all despite directly evoking that revised decision,

This application is now moot, given that the applicant has, at his request, had the benefit of a new decision from the visa office.

     The applicant's lawyers argue that this case does not fit Mr. Justice Noël's dicta in Dumbrava at p. 87 since there was, they assert, no "new decision", and "nowhere in the letter from Stephen Green dated January 13, 1997 [partially quoted above] is there any reference to new facts or new submissions to the visa officer. In fact, a reconsideration of the decision was not requested." In this Court's opinion, "perhaps you may want to review this file in order to prevent any embarrassment to your office. I await your response" is indeed a request for reconsideration.

     Can any rational person believe that if Mr. Macdonald or Mr. Lukie on February 10, 1997 had accepted the applicant for landing, the latter and his lawyers would not have trumpeted his success? Can any rational person believe that in such circumstance the applicant and his lawyers would now actually be repudiating the second decision be it "new" or "amended"? That is beyond belief.

     So, in terms of the fair proceedings which are exacted of and in this Court ever since, if not before Martineau v. Matsqui Disciplinary Board [1980] 1 S.C.R. 602">[1980] 1 S.C.R. 602, the attributes of fairness and natural justice are impressed on and into administrative law matters, such as this is. The then Mr. Justice Dickson, in Martineau, pp. 628-29, had put the matter well:

* * * A purely ministerial decision, on broad grounds of public policy, will typically afford the individual no procedural protection, and any attack upon such a decision will have to be founded upon abuse of discretion. Similarly, public bodies exercising legislative functions may not be amenable to judicial supervision. On the other hand, a function that approaches the judicial end of the spectrum will entail substantial procedural safeguards. Between the judicial decisions and those which are discretionary and policy-oriented will be found a myriad decision-making processes with a flexible gradation of procedural fairness through the administrative spectrum.

     What should be the conclusion here? In fairness the applicant ought not to be allowed to trick the visa officer as his lawyers seem to be inclined to do. This is not a case in which the visa officer gratuitously sought to change his decision ex mero motu. He considered, when the flaw was identified to him by the applicant, to accommodate the applicant at the request of the applicant's lawyers, that he had in effect "misspoken" in articulating his decision of January 1, 1997, and upon being made aware on the applicant's behalf of the flaw, he modified the wording, keeping the basic decision and the same points score.

     In this Court's opinion the exigencies of fairness are these: the February 10, 1997 decision should be deemed to have modified the wording of the January 1, 1997 decision which will then be the impugned decision; and the respondent's alternative request only ought to be granted according the respondent an extension of time up to 30 days hereafter within which to file the respondent's affidavits. However, in fairness the respondent should be accorded the full 30 days period following the applicant's extended time, now mentioned. The applicant may amend its originating notice and supporting affidavit serving such amendments forthwith, until close of business in the registry on April 9, 1997. The applicant may have any amended affidavit commissioned if need be up to 30 days hereafter, if an exact draft or "fax" copy be filed before close of business on April 9, 1997.

     Just as the respondent must be made to deal fairly with the applicant, so the applicant must deal fairly with the respondent and not engage in the apparent attempt at trickery by blowing hot and cold, as here. There is no rule which exempts individual applicants from treating the Minister fairly, while requiring eternal fair dealings on the Minister's behalf. Fairness - including the Court's repudiation of trickery - overrides technical strictness even in this kind of proceeding.

    

Judge

Ottawa, Ontario

March 26, 1997