Federal Court Decisions

Date: 19971107

Docket: IMM-2705-96

BETWEEN:

    

     DILBAT SINGH BRAR and MUKHTIAR DHILLON,

     Applicants,

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

     Respondent.

     REASONS FOR ORDER

HEALD D.J.

[1]      This is an application for judicial review of the decision of a visa officer dated July 9, 1996, wherein he refused to reconsider the application of the applicants for permanent residence.

FACTS

[2]      The applicant Dilbat Singh Brar (hereafter "Brar"), applied for permanent residence at the office of the Canadian High Commission in New Delhi. The application was made in the self-employed category since he intended to join his cousin, the applicant Mukhtiar Dhillon ("Dhillon") in his full-service and self-service gas bar business in Ontario. Dhillon's business also provided a garage for vehicle repairs, as well as a car wash, a laundromat and a variety store. Brar was interviewed by a visa officer on June 22, 1995, which interview was conducted without an interpreter. His application for permanent residence was refused by letter dated January 23, 1996.

THE DECISION OF THE VISA OFFICER

[3]      The visa officer observed that Brar had stated at his interview that his investment in Dhillon's business would be in the form of a transfer of land. However, he said that the land in question belonged to his father, and not to him. On this basis, it seemed that the applicant was not possessed of any assets which could be invested in Dhillon's Canadian business. Based on this evidence, the visa officer concluded that the land exchange plan was designed for the sole purpose of gaining Brar's entry into Canada. The visa officer further observed that Brar had no business experience or knowledge of Dhillon's business. His conclusion was that Brar had not shown that his self-employment would bring a substantial economic benefit to Canada.

[4]      Brar's counsel wrote to the visa officer on March 5, 1996, asking for a review of the decision for the following reasons:

1.      There was no interpreter at the interview;

2.      In concluding that the land to be transferred did not belong to Brar, the visa officer ignored the affidavit from Brar's father to the effect that Brar was legally entitled to this land;

3.      The visa officer gave no indication to Brar that a land approval was necessary;

4.      The visa officer ignored letters from members of the community attesting to Brar's welding work. Photos of his work were also ignored;

5.      Brar was not asked to peruse the financial statements. His understanding was that the visa officer merely inquired about the worth of the business; and

6.      The visa officer misunderstood Brar's evidence concerning who would be looking after the business in situations where the business was short of staff.

[5]      On June 26, 1996, Brar's counsel wrote again to the visa officer enclosing an affidavit from Brar's cousin, which confirmed the transfer of $50,000 into Brar's business. This was in addition to the $10,000 previously invested.

[6]      On July 8, 1996, the visa officer faxed a letter to Brar's counsel stating: "Please refer to the refusal letter dated January 23, 1996. As it clearly reflects the evidence submitted with the application for immigration as well as the testimony of the applicant at interview, there appears to be no reasons to review the file".

ISSUES

1.      Is the letter from the visa officer dated July 8, 1996, a "courtesy response" or a decision which can be the subject of an application for judicial review?

2.      Does the principle of functus officio apply to the decision of a visa officer?

ANALYSIS

1.      The letter of July 8, 1996

[7]      In these proceedings the applicant Brar is not challenging the visa officer's refusal letter of January 23, 1996. He is rather, challenging the letter of July 8, 1996, which refused the request for reconsideration. The respondent characterizes that letter as simply a "courtesy response", which does not constitute a "decision" as that phrase is employed in section 18.1 of the Federal Court Act.

[8]      I agree with the respondent. This view is supported by the decision of Noël J. in Dumbrava v. M.C.I.,¹ where it was decided that when there is a fresh decision based on new facts, there is always "a fresh exercise of discretion". In the case at bar, the visa officer did not refer to any new facts or submissions nor did she state that she was reconsidering her decision. As was stated by McKeown, J. in Dhaliwal v. M.C.I.,² "counsel cannot extend the date of decision by writing a letter with the intention of provoking reply".

[9]      On this record, there is nothing to explain why Brar's counsel did not file a timely application for judicial review or an application for extension of time. I agree with respondent's counsel that the letter of July 8, 1996, is merely a courtesy response and not subject to review pursuant to section 18.1. On this basis, the within application for judicial review is dismissed. However, I propose to express my view on the second issue raised by the parties, namely the issue of functus officio.

2.      Functus Officio

[10]      The applicant herein submits that visa officers are authorized to reconsider their decisions in a situation such as this where further information has been provided by the applicant. In such circumstances this visa officer should have done so. It is the respondent's submission, however, that in the absence of statutory authority to reconsider, the concept of functus officio should apply.

[11]      In the Chandler³ decision, Sopinka J. canvassed the concept of functus officio as it related to administrative tribunals. He stated at page 861:

I do not understand Martland J. to go so far as to hold that functus officio has no application to administrative tribunals. Apart from the English practice which is based on a reluctance to amend or reopen formal judgments, there is a sound policy reason for recognizing the finality of proceedings before administrative tribunals. As a general rule once such a tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change in circumstances. It can only do so if authorized by statute or if there has been a slip or error within the exceptions enunciated in Paper Machinery Ltd. v. J.O. Ross Engineering Corps., supra.

To this extent, the principle of functus officio applies. It is based, however, on the policy ground which favours finality of proceedings rather than the rule which was developed with respect to formal judgments of a court whose decision was subject to a full appeal. For this reason I am of the opinion that its application must be more flexible and less formalistic in respect to the decisions of administrative tribunals which are subject to appeal only on a point of law. Justice may require the reopening of administrative proceedings in order to provide relief which would otherwise be available on appeal.

I find this view of the matter to be most persuasive. The Immigration Act makes no provision for reconsideration of decisions by a visa officer. There is however, a clear provision for judicial review of alleged errors. I find this to be a significant circumstance and fatal to the applicant's submissions on this issue.

[12]      The applicant also relies on my decision in the case of Gudino v. M.E.I.⁴ This decision dealt with the validity of a visa after it had been issued. It does not deal with the jurisdiction of a visa officer to reconsider a decision. There are no statutory requirements for reassessment. Accordingly a failure to reassess does not constitute a ground for judicial review.

[13]      Accordingly, and for the foregoing reasons, the within application for judicial review is dismissed.

CERTIFICATION

[14]      Counsel for the applicants as well as counsel for the respondent requested that a question be certified as a serious question of general importance pursuant to section 83 of the Immigration Act. That question reads as follows: "Is a visa officer functus officio in respect of an application for an immigration visa once the application has been refused by that visa officer?"⁵

[15]      In The Minister of Citizenship and Immigration v. Liyanagamage,⁶ Mr. Justice Décary wrote:

In order to be certified pursuant to subsection 83(1), a question must be one which, in the opinion of the motions judge, transcends the interests of the immediate parties to the litigation and contemplates issues of broad significance or general application .... but it must also be one that is determinative of the appeal.

[16]      I dismissed this application for judicial review on the basis that the letter from the visa officer dated July 8, 1996 was a "courtesy response" and not a decision which could form the basis of an application for judicial review. In these circumstances, the question proposed by counsel would not be determinative of an appeal from my decision. Accordingly, no question will be certified.

                         Darrel V. Heald                          Deputy Judge

OTTAWA, ONTARIO

November 7, 1997

__________________

     ¹      (1995), 101 F.T.R. 230.

     ²      IMM-7381-93, June 6, 1995.

     ³      Chandler v. Association of Architects, [1989] 2 S.C.R. 848 at p. 861.

     ⁴      [1982] 2 F.C. 40 at 43 (F.C.A.).

     ⁵      I have altered slightly the question submitted by counsel for grammatical reasons.

     ⁶      A-703-93, November 1, 1994 (F.C.A).