Federal Court Decisions

     IMM-2744-97

B E T W E E N:

KAZAM KAMAL MIRZA BAIG

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER

NADON J.:

     On July 2, 1997, the applicant filed an originating notice of motion seeking to set aside a decision dated March 31, 1997, rendered by a Visa Officer of the Canadian Consulate General, Buffalo, New York, which denied his application for permanent residence in Canada.

     In support of the originating notice of motion, the applicant filed, inter alia, his affidavit dated June 26, 1997. At paragraph 11 thereof, the applicant states that "on or about the 7th day of June 1997, I received a letter from the Canadian Consulate General refusing my application for permanent residence in Canada".

     On that assertion, it appeared that, by filing his originating notice of motion on July 2, 1997, the applicant had filed within the time prescribed by Section 18.1(2) of the Federal Court Act, i.e. within thirty (30) days "after the time the decision or order was first communicated by the Federal Board, ...".

     On July 25, 1997, the respondent filed an application seeking the dismissal of the applicant's application for judicial review on the ground that the originating notice of motion had not been filed within the time prescribed by Section 18.1(2) of the Federal Court Act. On September 15, 1997, by way of a conference call, I heard the submissions of counsel with respect to the respondent's application to dismiss. During the hearing, counsel for the applicant informed me and counsel for the respondent that the Visa Officer's letter of refusal had been received by her office in April 1997 and that her office had only communicated the contents of that letter to the applicant in June 1997. I advised counsel for the applicant that it was difficult to reconcile that information with the statement made by the applicant at paragraph 11 of his affidavit of June 26, 1997.

     Counsel for the applicant then asked that the time during which the applicant could file and serve his judicial review proceedings be extended. I adjourned the hearing of the respondent's motion and made the following order:

The hearing of this motion is adjourned to date to be fixed during a conference call which will be held during the first week of October 1997. In the meantime the Applicant shall have until Thursday, September 26, 1997 to file and serve an application to extend the time during which he may file his application for judicial review.

     On September 25, 1997, the applicant filed a notice of motion seeking to obtain an extension of the time to file his originating notice of motion. In support of that motion, the applicant filed an affidavit dated September 19, 1997. In paragraphs 5 to 13, of his affidavit, the applicant states:

5.      By letter dated March 31, 1997, the visa officer informed me that my application for permanent residence to Canada was refused.

6.      This letter was forwarded to my solicitor's office in New York City and I subsequently learned of the decision on or about the 7th day of June, 1997.

7.      During the month of April and May I was not residing in the State of New York as I was in the process of negotiating the purchase of a community paper and was travelling to the West Coast and South West to explore and develop distribution markets.

8.      When I returned to New York in the month of June, 1997, I contacted my solicitor to enquire on the progress of the case and learned of the negative decision.

9.      I never made any prior enquiries as I believed that my application had been accepted. Had I suspected that my application was to be refused, I would have contacted my solicitor during the months of April and May to enquire further.

10.      I am advised and verily believe to be true that a member of Ms. Codina's office did attempt to contact my home in Astoria, New York regularly during the months of April and May and did not receive any response.

11.      When I returned to New York on or about the 6th day of June, 1997, I found in my mail box a letter from Codina Partners International dated April 23, 1997 advising that they had tried to reach me several times to advise me of the Consulate's decision. Attached herewith and marked as Exhibit "A" is a copy of the said letter.

12.      I subsequently attended at the office of Codina Partners International the following day and received a copy of the letter from the Consulate dated March 31, 1997.

13.      The date of June 7, 1997 was the first time I learned of the decision and the first time I received a copy of the letter from the Consulate.

     On October 8, 1997, I resumed the hearing of the respondent's motion, again by way of a telephone conference. I also heard the applicant's motion to extend the time. During the hearing, I pointed out to counsel for the applicant that it was difficult, if not impossible, to reconcile the statements made by the applicant in his affidavit of September 19, 1997, with the statement made in paragraph 11 of his previous affidavit. On the one hand, in his first affidavit, the applicant states that he received the letter of refusal "on or about the 7th day of June 1997". This statement, no doubt, leaves the reader with the impression that the letter sent by the Visa Officer did not reach the applicant before June 7, 1997.

     However, in his second affidavit, the applicant explains that he never received the letter of refusal from the Consulate General but rather that he was informed of its contents by his solicitors when he returned to New York in June 1997. He goes to say that he found, in his mailbox, around June 6, 1997, a letter from his solicitors dated April 23, 1997, requesting him to contact them as soon as possible.

     I indicated to counsel for the applicant that it was my opinion that when the applicant filed his first affidavit, he had not disclosed "the whole truth". It seemed obvious to me that when the applicant filed his originating notice of motion that he should have disclosed the fact that his solicitors had received the letter of refusal in early April 1997. It should be pointed out that the applicant had given his solicitors' address in New York as the address to which correspondence should be sent.

     In these circumstances, I have no doubt that the delay prescribed by Section 18.1(2) of the Federal Court of Act began to run upon receipt of the letter of refusal by the applicant's solicitors. Consequently, when the originating notice of motion was filed on June 2, 1997, the applicant was out of time.

     The information which appears in the applicant's second affidavit was known to the applicant and his lawyers when the originating notice of motion was filed on July 2, 1997. As I indicated earlier, counsel for the applicant informed me that her office had received the letter of refusal in April 1997 when I held the first conference call on September 15, 1997.

     On the evidence before me, I do not believe that the applicant and his counsel have been candid. On the contrary, the first affidavit is manifestly misleading bearing in mind what the true facts are. In these circumstances, I am not prepared to grant to the applicant an extension of time to file judicial review proceedings. If applicants and their counsel wish this Court to exercise its discretion in their favour, it is imperative that full and frank disclosure be made. That has not been the case in the present matter. Consequently, the applicant's motion shall be denied and his originating notice of motion filed on July 2, 1997, shall be struck.

     At the end of the hearing, counsel for the respondent sought an order for costs. After some hesitation, I decided not to order costs. However, I indicated to counsel for the applicant that if this type of behaviour were to reoccur, I would have no hesitation in ordering costs against counsel personally.

         "MARC NADON"

     Judge

Ottawa, Ontario

October 10, 1997.