Date: 20001031
Docket: IMM-133-99
BETWEEN:
YEVGENI KANDAUROV
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HANSEN J.
[1] Yevgeni Kandaurov, a citizen of Kyrgyzstan, seeks judicial review of the December 21, 1998 decision of Timothy Bowman, Second Secretary, at the Canadian Embassy in Moscow. The applicant asks the Court for an order in the nature of a Writ of Mandamus, or in the alternative, a direction requiring the Canadian Embassy in Moscow to process his file as of the date it received the transferred file and for an order setting aside the December 21, 1998 decision.
[2] On September 19, 1996, an application for permanent residence by the applicant, which included his spouse as a dependent, was received by the Canadian Embassy in Ankara. The applicant and his spouse were interviewed on May 13, 1997. The CAIPS notes for this date conclude with the following (Certified Record at page 5):
| ... She stated that after some of their friends were refused from our office that have asked to their lawyer if they cancel their interview but he lawyer advised them to attend their interviews. It was very hard to explain the reason of refusals. I called Nuriye Dibirdi from commercial section to translate for me, Nuriye Dibirdi is fluent in Russian language. Refused on points. Refusal to be sent shortly. |
[3] On this date, the CAIPS notes also indicate the refusal letter was prepared and a cheque for the refund of the right of landing fee was requested.
[4] According to the affidavit of Olga Iakovenko, an acquaintance of the applicant, stated at paragraph 7:
| Yevgeni told me after the interview that Ms. Ozguc had said that she intended to refuse him and asked me what to do. I advised him to go back the next day and ask to speak with Ms. Ozguc. The next evening Yevgeni reported, and I do verily believe, that Ms. Ozguc had offered not to finalize his application if he would transfer it to Moscow. |
[5] However, the applicant did not file an affidavit attesting to this conversation nor is there any mention of the conversation in the CAIPS notes.
[6] On May 14, 1997, the applicant's consultant sent two faxes to the visa officer: the first asked for a transfer of the applicant's file to Syria; the second asked that the file be transferred to Moscow. The required transfer fee was sent to Ankara on June 9, 1997. The visa officer wrote to the applicant's consultant on July 14, 1997 stating (Certified Record at page 24):
| We have prepared and kept your refusal letter on the file which is dated 15 May 1997, to be able to send you the refund cheque of your Right of Landing Fee along with the refusal letter. Your cheques is now ready. |
| In the meantime, we have noticed that you have asked for the transfer of your file and paid the necessary file transfer fee. |
| Please advise us if you still which your file to be transferred or not. If you decide not to; we will then send you your refusal letter along with your Right of Landing Fee refund cheque and will also refund your file transfer fee payment. |
[7] The consultant responded on July 25, 1997 stating that he understood from his client that a final decision had not been made and that the file should be transferred to Moscow for another interview. The Canadian Embassy in Ankara responded by enclosing a copy of its July 14, 1997 letter, stating that a decision had been made and the file was closed, and asked if the applicant still wished to have the file transferred to Moscow.
[8] There were no further communications until the applicant's new counsel wrote on November 27, 1997. In this letter he suggested that the applicant's spouse should be assessed and if not successful the refusal should be set aside and the file transferred to Moscow for processing. Following some further correspondence, the content of which is not relevant for the purposes of this application, Timothy Bowman wrote to the applicant's counsel on December 21, 1998. It is the content of this last letter which gives rise to the application before me.
[9] The applicant argued the following on the judicial review:
| (a) That the respondent has a duty to honour the promise made by the visa officer on May 14, 1997 to defer finalizing the applicant's file and to forward it to Moscow for processing; |
| (b) That the visa officer erred in failing to assess the applicant's spouse; |
| (c) That upon acceptance of the transfer fee in June 1997, the visa officer in Ankara "lost carriage of the file"; and |
| (d) That the Moscow office had a duty to process the applicant's file in accordance with the date it was received. |
[10] Arguments (a), (c), and (d) are premised on the applicant's assertion that the visa officer had not reached a decision regarding the application. The CAIPS notes, however, clearly state the applicant was informed at the interview that the application was refused. In fact, a colleague of the visa officer was asked to explain the refusal to the applicant because of the difficulty he was having understanding English. As noted earlier, there is no mention in the notes of any subsequent conversation on May 14, 1997 nor of any promise to transfer the file. Furthermore, the only evidence tendered by the applicant concerning the alleged conversation is that of a third party who was not present at the interview. In this case, a final decision regarding the application was made on May 13, 1997 and accordingly it is not necessary to deal with the arguments individually as there is no factual basis for the claimed relief namely, an order in the nature of a Writ of Mandamus.
[11] Regarding the submission that the visa officer failed to assess the applicant's spouse, I note that the visa officer's decision was not challenged on this application. It would appear that the applicant is in effect attempting to attack the decision of the visa officer under the guise of challenging the "decision" of December 21, 1998. Counsel for the respondent also drew the Court's attention to an earlier attempt by the applicant's spouse to seek judicial review of the decision of the visa officer in Court file IMM-74-99. In that file, a motion to extend the time for filing the application for judicial review was dismissed on the basis that "... no reasonable justification [was] provided for the delay of over one year to commence judicial review proceedings."
[12] With respect to the applicant's submissions concerning the decision of December 21, 1998, in my view, it is not a reviewable decision as contemplated in the Federal Court Act, R.S.C. 1985, c. F-7. The letter of December 21, 1998 contains no more than a summary of the file information, a restatement that the application was previously refused, and that upon payment of the required fees and receipt of updated application forms the application would be processed. Moreover, the letter does not implicate in any way the rights of the applicant.
[13] For these reasons, the application for judicial review is dismissed.
[14] Neither party submitted a question for certification.
"Dolores M. Hansen"
J.F.C.C.
OTTAWA, ONTARIO
October 31, 2000