Date: 20000622
Docket: IMM-3528-98
BETWEEN:
RENATA SCISLOWICZ
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HENEGHAN J.
[1] This is an application for leave and judicial review in respect of a decision rendered June 8, 1998, wherein Howard Martin Spunt refused the application of Renata Scislowicz (the "Applicant") for failing to attend her immigration interview.
[2] The Applicant is a citizen of Poland. The Applicant and her husband have been residing in Canada since June 1994. Her son Filip was born on December 13, 1994 in Canada.
[3] The Applicant"s application for permanent residence in Canada was submitted to the Canadian Consulate in Buffalo, New York. The Applicant had requested that the interview be waived in consideration of the time the Applicant had already spent in Canada. This request was denied. An immigration officer concluded that an interview was essential in order to assess the Applicant"s application for permanent residence. Specifically, the CAIPS notes indicate that an interview was required to assess the Applicant"s employment experience, training, language ability and an offer of employment.
[4] An interview was scheduled for February 19, 1998. The visa officer had opted not to conduct the interview via teleconference or at a place in Canada. The Applicant did not attend the interview. From the material submitted, it appears the Applicant was not in possession of the entry documents needed to enter the United States.
[5] Following a request made by the Applicant, the file was transferred to Detroit. The visa officer at the Detroit office was also of the opinion that an interview was required. A second interview was scheduled for June 1, 1998 in Detroit. Counsel for the Applicant called the Consulate in Detroit to inform that the Applicant would not be able to attend the second interview. The program manager advised the Applicant"s counsel that this would result in a non-compliance refusal, as a fair and legal assessment could not be done without an interview. The Applicant did not attend her second interview scheduled for June 1, 1998 and as a consequence to her non-attendance was sent a refusal letter rejecting her application for permanent residence.
[6] Counsel for the Applicant advanced a number of arguments in the present judicial review. However, having reviewed these arguments as well as the other material submitted, I cannot conclude that the visa officer erred in refusing the Applicant"s application for permanent residence.
[7] I refer to the decision of Justice Nadon in Voskanova v. Canada (Minister of Citizenship and Immigration)1. In that decision, Justice Nadon squarely addressed the question of whether an application for permanent residence can be denied on the basis of non-attendance at an interview. Justice Nadon wrote:
| The applicant submits that the Visa Officer fettered her discretion by refusing the applicant's application on the sole ground that she did not attend her interview in New York. The applicant further submits that the Visa Officer failed to consider the merits of her application. |
| The applicant's file was reviewed by the screening officer at the RPC in Buffalo. Following the review, the screening officer determined that an interview was required... |
| It is as a result of the screening officer's above concerns that the applicant was requested to attend at an interview in New York on May 1, 1998. In paragraph 7 of her affidavit dated July 24, 1998, the Visa Officer discusses her decision to refuse the applicant's application for permanent residence... |
| In my view, the applicant's argument that the Visa Officer fettered her discretion is without substance. Both the screening officer in Buffalo and the Visa Officer in New York considered the merits of the application. It must not be forgotten that the purpose of the scheduled interview was to address the concerns raised by the screening officer in Buffalo. By failing to attend, the applicant could not alleviate these concerns. In my view, the reasons of McDonald J. in Su v. Canada (M.C.I.) (1998) 152 F.T.R. 136 are apposite to the facts of this case and I entirely agree with McDonald J. when he says at pages 138-9: |
| Section 22.1 of the Regulations is, in my view, determinative of this issue. It states that an immigration officer may require an applicant to be interviewed "for the purpose of assessing the application". Thus, while a paper assessment (i.e. a review of the application) must be completed, if, during that assessment, an officer decides that an interview is warranted then the applicant must attend the interview as that interview forms part of the assessment. Unless that discretion is exercised unlawfully or has been fettered in some manner, a decision to require an applicant to attend an interview forms part of the application process. If an applicant can not attend an interview at his or her chosen Consulate Office or have his file transferred to another office, he has not complied with regulation 22.1. His application therefore may be dismissed pursuant to s. 19(2)(d) of the Act. |
| Further on in his reasons, McDonald J. emphasized the fact that the screening officer had thoroughly reviewed the applicant's file before determining that an interview was required. At page 139 of his reasons, he states: |
| As the applicant was unable to attend an interview as required by the Act, the decision to deny his application pursuant to s. 19(2)(d) was correct. I would therefore dismiss the application for judicial review. In doing so, I emphasize that this is not a case where the visa officer has only given cursory attention to an application before convoking an applicant to interview. |
| The applicant's application was thoroughly reviewed by the visa officer who determined that a personal interview was warranted. An assessment was made on the paper application: the application could not be processed unless the applicant attended a personal interview. While some other visa officer might have come to a different conclusion on the basis of the paper assessment, the visa officer has clearly fulfilled her duties as required by the Act. There will be no award as to costs. |
| In view of the CAIPS notes to which I referred earlier, I am entirely satisfied that the screening officer made a thorough review of the applicant's file before concluding that an interview was required in the circumstances. By failing to attend her interview without providing a reasonable explanation for her absence, the applicant failed to comply with paragraph 22.1 of the Immigration Regulations, 1978. 2 |
[8] The present situation is similar to the one addressed in Voskanova by Justice Nadon. The CAIPS notes, found in the Certified Tribunal Record, indicate that there were good reasons to require that the Applicant attend an interview. For example, the visa officer in question determined that an interview was required to assess the Applicant"s experience, education and her language skills. The visa officer"s concerns with respect to the application required an interview. By failing to attend the interview, the Applicant failed to comply with paragraph 22.1 of the Immigration Regulations, 1978.
[9] Thus, having reviewed all the evidence submitted and having read and heard counsels" submissions, I cannot conclude that the visa officer committed a reviewable error in refusing the Applicant"s application for permanent residence.
[10] The application for judicial review is dismissed.
[11] Counsel for the parties have seven days from their receipt of these reasons to submit a question for certification.
"E. Heneghan"
J.F.C.C.
Toronto, Ontario
June 22, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-3528-98 |
| STYLE OF CAUSE: RENATA SCISLOWICZ |
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
| DATE OF HEARING: TUESDAY , MARCH 28, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: HENEGHAN J. |
DATED: THURSDAY, JUNE 22, 2000
| APPEARANCES BY: Mr. Timothy E. Leahy |
| For the Applicant |
| Ms. Susan Nucci |
| For the Respondent |
| SOLICITORS OF RECORD: Mr. Timothy E. Leahy |
Barristers & Solicitors
5075 Yonge Street, Suite 408
Toronto, Ontario
M2N 6C6
| For the Applicant |
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20000622
Docket: IMM-3528-98
BETWEEN:
| RENATA SCISLOWICZ |
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
| REASONS FOR ORDER |
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