Docket: IMM-4739-11
Citation: 2012 FC 413
Ottawa, Ontario, April 11,
2012
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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WALID MOHAMED ELKATEB
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
Applicant, Walid Mohamed Elkateb, seeks an order of mandamus compelling a
decision on his request for reconsideration of his application for permanent
residence, dated June 7, 2011, from the Canadian Embassy in Cairo.
I. Background
[2]
As
a citizen of Egypt, the
Applicant applied for permanent residence in Canada under the
skilled worker category based on his employment as a dentist. In December
2010, the visa officer sent the Applicant an email requesting an updated
reference letter and contact information to verify his work experience. On
February 7, 2011, he was sent another email reminder and warning to provide the
requested information.
[3]
Since
there was no response from the Applicant, the visa officer refused his
application in a letter dated April 20, 2011, stating “I cannot verify your
history of employment and residency.”
[4]
The
Applicant asked the visa officer to reconsider this decision claiming that he
did not receive the emails requesting documents due to internet service
disruption during the revolution in Egypt. The visa
officer would not grant reconsideration. An entry in the Computer Assisted
Immigration Processing System (CAIPS) notes on April 21, 2011 states:
EMAIL RECEIVED FROM APPLICANT
WITH DOCUMENTS ATTACHED. CITES SITUATION IN EGYPT IN FEBRUARY AS REASON FOR DELAY. DOCS
WERE REQUESTED IN DECEMBER AND REFUSAL WAS SENT IN APRIL AFTER MORE THAN 4
MONTHS, INCL A WARNING LETTER [S]ENT IN FEBRUARY. DOES NOT CHANGE DECISION.
[5]
In
a letter dated June 7, 2011, Applicant’s counsel also requested that the
refusal be reconsidered.
[6]
Prior
to any response on this request, the Applicant brought an application for
judicial review on June 22, 2011 challenging the visa officer’s refusal
(IMM-4124-11). He also brought the present application in relation to the
request for reconsideration on July 25, 2011.
[7]
In
IMM-4124-11 above, the Applicant argued that the decision was unfair because of
the disruption to internet service in Egypt during the revolution. The
Respondent maintained that this disruption was very brief and did not provide
an excuse for failing to respond to the emails and provide documents. On
November 1, 2011, Justice Robert Barnes denied leave for that application.
II. Analysis
[8]
Given
the background in this case, I see no basis for issuing an order of mandamus
compelling a decision regarding the request reconsideration as the Applicant is
asking the Court. The principal reason for this is that the matter has already
been decided and to do so would lead to inconsistencies and duplication of
effort.
[9]
As
is evident from the CAIPS notes, the visa officer considered and responded to
the initial request for reconsideration based on the internet service
disruption and declined to accept it. While the initial email was sent in
December, with a reminder in February, and a decision rendered in April; the
actual disruption was only for a brief period at the end of January and early
February.
[10]
In
addition, Justice Barnes declined leave to judicial review the visa officer’s
refusal. Forcing a decision on the further request for reconsideration on
similar grounds where the refusal was upheld would, in my view, be
contradictory.
[11]
The
Applicant’s insistence that his first request for reconsideration was made
without the assistance of counsel, unlike the second request in June 7, 2011,
is irrelevant. As is counsel’s suggestion that if he had included a particular
case in the application for judicial review of the refusal, leave might have
been granted.
[12]
The
only matter now before me is whether it is appropriate to issue an order
compelling a decision on the further request from reconsideration in light of
what has already been considered and resolved by the visa post and this Court.
[13]
The
Applicant’s continued assertion that he would certainly have responded to the
emails if he had received them but was unable to do so because of internet
disruptions was not accepted by the visa officer or for the purposes of leave
for judicial review. It was considered insufficient.
[14]
The
Applicant is attempting to re-argue these issues by presenting additional
evidence in the form of Citizenship and Immigration Canada (CIC) Operational
Bulletin 265. Although I see no need to delve into the reasonableness of the
previous decision, I note that this Bulletin does not fully support the
Applicant’s position. It states that on requests for re-consideration based on
a failure to receive emails requesting documents “officers should consider all
the circumstances of the case and use their judgment in determining whether to
re-open the application.” While it allows for reconsideration, it is on a
discretionary basis considering all of the circumstances as the CAIPS notes
suggest the visa officer did in this case.
III. Conclusion
[15]
For
these reasons, I am not prepared to issue an order of mandamus compelling a
decision on the request for reconsideration. The application for judicial
review is dismissed.
JUDGMENT
THIS COURT’S
JUDGMENT is that this application for judicial
review is dismissed.
“ D.
G. Near ”
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