Date: 20030424
Docket: IMM-4235-02
Citation: 2003 FCT 479
Ottawa, Ontario, this 24th day of April, 2003
Present: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
ZSUZSANNA MOLNAR
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Ms. Zsuzsanna Molnar (the "Applicant"), a citizen of Hungary, came to Canada in July, 1999. She married Daniel Golden, a Canadian citizen, on October 1, 2000. On December 15, 2000, the Applicant submitted an application for sponsorship and an application for humanitarian and compassionate (H & C) considerations. There were a number of miscommunications and undelivered notices during the processing of the application. On March 14, 2002, the Senior Immigration Officer (the "SIO") refused the Applicant's H & C application. Through various means, the Applicant attempted to have the H & C file re-opened to consider further evidence that had not reached the SIO. A final request, made in writing by the Applicant's mother-in-law on August 27, 2002, was replied to the next day with the following handwritten notation:
Case closed. Cannot re-open. However, they can submit another H & C application. [illegible signature] 28-8-02
[2] The Applicant seeks a judicial review of that decision to close her file.
Background
[3] The critical concern that gives rise to this application is that, on January 30, 2002, the SIO forwarded a letter to the Applicant at the wrong address, requesting additional information and documentation within 30 days (the "January 30, 2002 letter"). A copy of this letter was also sent to her counsel, although there is also conflicting testimony related to whether the Applicant had notified Citizenship and Immigration ("CIC") of a change in counsel prior to the January 30, 2002 letter. Having received no further information, the application was dealt with on the basis of the evidence before the SIO.
[4] There is conflicting information in the affidavits of the Applicant and the SIO as to the matter of the correct address. The Field Operations Support System ("FOSS") records attached to the affidavit of the SIO indicate that there were many changes of address for the Applicant. The Applicant, in her affidavit, states that she has lived at the same address since March 2000.
[5] Further, according to the Applicant's Affidavit, she telephoned CIC in February 2001 to report that she no longer wished to have the services of her then counsel, Josef Sarkozi. Within the next two weeks, she advised the office in writing of this decision. In her affidavit, the SIO notes that there is no record in FOSS that the CIC Call Centre received this telephone call or this letter. According to the SIO, calls of this nature are recorded in FOSS.
Issues
[6] The Applicant raises the following issues:
1. Did the SIO breach the principles of fairness in refusing to re-open the Applicant's sponsorship application in light of the circumstances that the application was closed due to an administrative error made by the Respondent which error was obvious on the face of the record?
2. Did the SIO act in bad faith?
3. Did the Respondent breach the doctrine of legitimate expectation?
Analysis
[7] For the reasons that follow, I am of the view that this application should not succeed.
Issue #1: Did the SIO breach the principles of fairness in refusing to re-open the Applicant's sponsorship application?
[8] The Applicant submits that the SIO breached the duty to act fairly (Chhokar v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 173 (T.D.) (QL); Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817) by refusing to re-open her file when the reason for closing the file was the Applicant's failure to reply to a request which, due to the Respondent's own error, was forwarded to an incorrect address and never received by the Applicant. The SIO was required to give the Applicant an opportunity to respond to any negative information that she received or concerns that arose during the course of the application process (Muliadi v. Canada (Minister of Employment and Immigration), [1986] 2 F.C. 205 (C.A.)).
[9] Although the Applicant refers to the "closing" of her file as a result of her failure to respond to a request for further information, I would characterize the facts differently. The Applicant's failure to respond to the January 30, 2002 letter did not result in her file being closed. Rather, her failure to respond and provide additional information meant that the SIO made the negative H & C determination on the basis of information already on file. Therefore, the Applicant's file was closed because a final determination had been made, and not because of her failure to respond to correspondence from the SIO. As a result, one question that is critical is whether the SIO had the jurisdiction to re-open an H & C application once a final decision had been made.
[10] The Applicant did not cite any case law to support the proposition that the SIO can re-open an H & C application once a final decision has been made. According to the SIO's Affidavit, the IP5 Manual states that once a decision is made with respect to an H & C decision, it is final and cannot be re-opened. The Immigration Act, R.S.C 1985, c. I-2 and its Regulations are silent on this issue.
[11] For the purposes of this analysis, I have assumed, without deciding, that the H & C application can be re-opened after a final decision has been made if there is evidence that natural justice or fairness was not respected.
[12] The completely contradictory affidavits in this case are very troublesome. Unfortunately, neither party conducted cross examination on these affidavits. Had they done so, I expect that a number of matters could have been clarified. I am left having to decide which version of the events is to be preferred.
[13] With respect to the address of the Applicant, I note that neither the affidavit of the SIO nor the Certified Tribunal Record provides satisfactory evidence on how or why certain changes were made to the Applicant's address. In this regard, I do not think that it is sufficient to simply state that the FOSS system records every phone call; I would have preferred to see, for each address change, a further notation explaining why the change was made. Some of the FOSS entries are simply inexplicable. Accordingly, I find that the evidence of the Applicant that she never notified CIC of a change of address is preferable to that of the SIO. In other words, it is my view that the Respondent erred in sending the January 30, 2002 letter to the wrong address.
[14] This conclusion does not, however, lead me to an automatic finding that there was a breach of natural justice. The Respondent submits that it was sufficient that the January 30, 2002 letter was also sent to the Applicant's counsel, Mr. Josef Sarkozi. Accordingly, I must also review the evidence on this matter.
[15] There is no evidence that Mr. Sarkozi did not receive the January 30, 2002 letter. There was also no evidence before the SIO at the time that she made her decision on the H & C application that Mr. Sarkozi failed to forward the correspondence to the Applicant. In my view, this supports the conclusion that the correspondence was received by the Applicant through her then counsel. In her affidavit, the Applicant claims to have notified the CIC of her change in counsel through a telephone call and a follow-up letter. Neither the Certified Tribunal Record nor the FOSS notes support this claim. In spite of some concerns with the FOSS system, I am satisfied that it would not be plausible for the CIC to fail to record both a telephone call and a letter received on an active file. Accordingly, I prefer the affidavit of the SIO on this point and conclude that the CIC was never informed of the change of counsel.
[16] As a result, the SIO's decision to base her H & C determination on the material already on file did not breach natural justice or fairness and, as a result, the SIO did not have jurisdiction to re-open the H & C application.
Issue #2: Did the SIO act in bad faith?
[17] In the Applicant's submission, the SIO made a perverse and capricious finding and acted in bad faith when she found that there had been no administrative errors and that no correspondence was returned to the office as undelivered. Once this error was pointed out to the SIO, her failure to afford the Applicant an opportunity to provide documents that the SIO had previously requested exhibited a sign of bad faith and a breach of the principle of fairness.
[18] I find no evidence to support these allegations of the Applicant. I am satisfied that the SIO did not act in bad faith.
Issue #3: Did the Respondent breach the doctrine of legitimate expectation?
[19] Finally, the Applicant submits that she was led to believe that her application was processing properly and consequently had a legitimate expectation which was not barred by statute (Canada (Minister of Employment and Immigration) v. Lidder, [1992] 2 F.C. 621 (C.A.); Baker, supra). That expectation and her right to procedural fairness were breached on May 13, 2002 when the Respondent informed the Applicant that her file had been closed.
[20] The doctrine of legitimate expectation provides that a public authority may be bound by its undertakings as to the procedure it will follow. However, that authority cannot place itself in conflict with its duty and forego the requirements of the law. This doctrine is procedural in nature and does not create substantive rights (Lidder, supra). In Baker, supra, the legitimate expectations of a person challenging the decision of an immigration official were addressed by the Supreme Court of Canada Writing for the majority of the Court, L'Heureux-Dubé J. stated that if a claimant has a legitimate expectation that a certain procedure will be followed, then this procedure will be required by the duty of fairness.
[21] In my view, the SIO followed the procedure that the Applicant expected would be followed. There is no indication that her application was not processed properly. Although the Applicant was misinformed by two unnamed immigration officers at the end of March 2002 and in mid-April 2002, I am not of the view that these statements created a legitimate expectation which has been breached. The evidence indicates that the SIO followed the proper procedure in making the H & C determination and properly refused to grant the Applicant's application and to re-open that application.
Conclusion
[22] Although the situation is unfortunate, there was not, in my view, a breach of natural justice or other error sufficient to overturn the decision of the SIO. However, I note that the Applicant is not precluded from bringing another H & C application and including all of the relevant information for her claim with that application.
Questionfor Certification
[23] Neither party proposed a question for certification. None will be certified
ORDER
THIS COURT ORDERS that this application for judicial review is dismissed. No question is certified.
"Judith A. Snider"
JUDGE
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-4235-02
STYLE OF CAUSE: ZSUZSANNA MOLNAR
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY, APRIL 16, 2003
REASONS FOR ORDER BY: SNIDER J.
DATED: THURSDAY, APRIL 24, 2003
APPEARANCES BY: MS. Elizabeth Jaszi
For the Applicant
Mr. Marcel Larouche
For the Respondent
SOLICITORS OF RECORD: Ms Elizabeth Jaszi
Barrister & Solicitor
Toronto, Ontario
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date:20030416
Docket: IMM-4235-02
BETWEEN:
ZSUZSANNA MOLNAR
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER