Date: 19990630
Docket: IMM-4545-98
BETWEEN:
ANDRIY MARKHEVKA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LUTFY J.:
BACKGROUND
| [1] The applicant"s visitor status was valid until March 6, 1998.1 On June 30, 1998, an immigration officer refused his application for an extension of his stay in Canada and confirmed this decision in a letter to the applicant of the same date.2 |
| [2] On June 30, 1998, the same immigration officer forwarded a written report to the Deputy Minister, pursuant to subsection 27(2) of the Immigration Act,3 with information that the applicant was a person who remained in Canada after ceasing to be a visitor, within the meaning of paragraphs 27(2)(e) and 26(1)(c) of the Act.4 |
| [3] On July 8, 1998, a call-in-notice was issued advising the applicant of an interview scheduled for August 18, 1998 at the Canada Immigration Centre in Scarborough, Ontario concerning his immigration status.5 He was asked to bring his passport, travel documents, national identity card and current immigration documents to the meeting. |
| [4] On August 18, 1998, a person acting on behalf of the Deputy Minister under subsection 27(3) of the Act, reviewed the subsection 27(2) report of June 30, 1998, forwarded a copy of the report to a senior immigration officer and directed that a determination be made under subsection 27(4), concerning the allegations with respect to the applicant"s visitor status having lapsed within the meaning of paragraphs 27(2)(e ) and 26(1)(c).6 Subsection 27(4) provides for the issuance of a departure order. |
| [5] On August 18, 1998, the applicant and his immigration consultant met with the senior immigration officer. According to the applicant, he noticed that a departure order had been prepared. His consultant requested that the senior immigration officer consider the reinstatement of his visitor status for a short time. The immigration officer, again according to the applicant, "... simply stated that he was no longer a bona fide visitor" and refused to explain further this statement. |
| [6] The applicant was asked to sign the departure order and did so.7 |
| [7] While in Canada, the applicant was attempting to have processed his application for permanent residence through the Canadian consulate in Detroit, Michigan. The lapse of his visitor status had prevented the applicant from attending his interview scheduled for July 21, 1998. That interview was re-scheduled for November 23, 1998. |
| [8] In this proceeding, the applicant seeks judicial review of (a) the decision of the Deputy Minister"s representative, made on August 18, 1998, directing a senior immigration officer to make a determination pursuant to subsection 27(4); and (b) the decision of the senior immigration officer to issue the departure order. The applicant"s challenge focussed principally, if not solely, on the second decision. |
ANALYSIS
| [9] The applicant"s first argument is based on the call-in-notice for the interview of August 18, 1998. In his view, this notice triggered a somewhat higher duty on the senior immigration officer to adhere to the principles of fairness and natural justice in reaching the subsection 27(4) decision concerning the departure order. He also argues that the call-in-notice should have made specific reference to the possible issuance of a departure order under subsection 27(4). In addition, according to the applicant, the occasion of the interview required the senior immigration officer to provide the applicant with an opportunity to make submissions. For the respondent, the senior immigration officer"s decision to issue the departure order on August 18, 1998 was a purely administrative one and the only possible decision since the applicant"s visa status had expired on March 6, 1998. |
| [10] In the circumstances of this case and on the evidence before me, I find no reviewable error in the decision of the senior immigration officer to issue the departure order. According to subparagraph 27(4)(b)(ii), the departure order "shall" be made if the senior immigration officer is satisfied that the person is one described in paragraphs 27(2)(e ) and 26(1)(c) or, in other words, a person who remained in Canada after ceasing to be a visitor. This determination was open to the senior immigration officer on the basis of the documentary record. The refusal of the visitor status extension on June 30, 1998 had not been challenged by way of judicial review. The departure order could have been issued without any interview. |
| [11] In my opinion, the invitation to the interview did not significantly, if at all, affect the duty of fairness. I infer, in these circumstances, that the purpose of the call-in-notice was to have the applicant sign the departure order.8 In any event, on his own evidence, the applicant and the consultant accompanying him requested that the senior immigration officer "... should reconsider reinstating my visitor status for a short time only, enabling me to attend the interview for permanent status in Canada."9 On the basis of this assertion, I am satisfied that the applicant was provided with an opportunity, without deciding that he had any such right, to make further submissions concerning the extension of his visitor"s status. |
| [12] The applicant"s second argument must also be rejected. The burden was on the applicant to make a formal application for a minister"s permit or for humanitarian and compassionate consideration, pursuant to subsections 27(2) and 114(2) of the Act respectively. There was no requirement on the senior immigration officer to take these issues into consideration in making the subsection 27(4) determination to issue the departure order. |
| [13] For these reasons, this application for judicial review will be dismissed. |
| [14] The applicant has suggested the certification of the following questions: |
| When a senior immigration officer is making a determination in the context of section 27 of the Immigration Act, does that officer have an obligation to inform the applicant of the specific allegation against him in the report? |
| In the same context, does the senior immigration officer have an obligation to verify the truthfulness of the allegations against the applicant? |
| In the same context, does the senior immigration officer have an obligation to provide the applicant with an opportunity to reply to the allegations? |
[15] I agree with the submissions of the respondent"s counsel that the facts of this case are such that none of the three questions would be dispositive of an appeal. It is common ground that the applicant"s visitor status had lapsed. He knew this before and during the meeting of August 18, 1998. Submissions were made that his visitor status be extended. Accordingly, there is no factual basis to support the issues raised in the questions suggested by the applicant. The questions do not raise a serious issue of general importance and none will be certified.
"Allan Lutfy"
J.F.C.C.
Toronto, Ontario
June 30, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-4545-98
| STYLE OF CAUSE: ANDRIY MARKHEVKA |
| - and - |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: TUESDAY, JUNE 15, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: LUTFY J.
| DATED: WEDNESDAY, JUNE 30, 1999 |
APPEARANCES: Mr. Max Chaudhary
For the Applicant
Ms. Sally Thomas
For the Respondent
SOLICITORS OF RECORD: Chaudhary Law Office
Barristers & Solicitors
405-255 Duncan Mill Road
North York, Ontario
M3B 3H9
For the Applicant
| Morris Rosenberg |
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990630
Docket: IMM-4545-98
Between:
| ANDRIY MARKHEVKA |
Applicant
| - and - |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER
__________________
1 Applicant"s application record, p. 37.
2 Applicant"s application record, p. 56. An earlier request for an extension to April 30, 1998, which was made on January 5, 1998, was refused on March 30, 1998. See applicant"s application record, pp. 25-28 and p. 40.
4 Applicant"s application record, p. 57.
5 Applicant"s application record, p. 55.
6 Applicant"s application record, p. 50.
7 Applicant"s application record, p. 53.
8 In Logan v. Canada (Minister of Citizenship and Immigration) (8 June 1999), IMM-3234-98 (F.C.T.D.), at paragraphs 15-18, Justice Lemieux reached a similar conclusion where the facts somewhat resemble those in this case. He also found that another purpose of the interview was to explain the process to the person being deported.