Date: 19980729
Docket: IMM-734-98
BETWEEN:
YANLING SU
Applicant
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
McDONALD J.
[1] Despite the cogent arguments of applicant's counsel, I am of the view that the application for judicial review should be dismissed. The facts of this case are as follows: By Order dated October 8, 1997, the applicant's application for permanent residence was referred to a visa officer. The applicant's file was opened and reviewed by the visa officer. Upon reviewing the file, the visa officer developed some concerns which she believed warranted the need for a personal interview. These concerns are stated in her affidavit as follows:
| In my assessment, I found the Applicant's educational qualifications and training to be questionable. I determined that it was necessary to confirm whether or not he could be considered as qualified to follow his intended occupation in Canada. I also found that the Applicant's letters of reference were vague and did not support his stated experience in his intended occupation. I determined that it was necessary to discuss the stated work experience with the Applicant, in person, and to confirm whether this experience was transferable to the Canadian labour market. |
| As well, in my assessment, I found that there were several discrepancies between the information noted on the Applicant's formal application form and the information in his supporting documentation. I determined that it was necessary to clarify these discrepancies -- especially those critical to the assessment of his qualifications and experience in his intended occupation. |
| Finally, I determined that it was necessary to assess the Applicant's English language ability. The applicant's agent notes -- in his letter of January 6, 1997 -- "in so far as Mr. Su's English is concerned, I am not especially impressed. Despite attending day, evening and Sunday classes, he is uncomfortable expressing himself in English although he says that he understands spoken English fairly well. He is clearly not 'fluent', whether he would merit 'well' I do not know." |
[2] A letter dated October 17, 1997 was sent to the applicant requesting him to attend an interview with the visa officer on November 19, 1997. On November 10, 1997 the applicant's agent advised the visa officer that the applicant would not be able to attend the scheduled interview and requested that the interview be rescheduled and a longer lead time be afforded to the applicant. This request was granted and a new interview was re-scheduled for January 12, 1998. The applicant's agent requested the Programme Manager to issue a Minister's Permit to facilitate the applicant's re-entry to Canada after his interview. He also requested the Programme Manager's intervention with the Chinese authorities to facilitate the applicant's application for a passport extension.
[3] On January 9, 1998, the applicant sent a letter to the visa officer advising her that he would be unable to attend his personal interview on January 12, 1998 because the Chinese Consulate General refused to renew his passport without a letter from the Canadian Consulate General stating that his application for permanent residence had been approved. The letter included several documents which he asked to be included in his file. These documents were reviewed by the visa officer. The Canadian Consulate refused to grant the applicant's request and a final assessment of the file was made. The visa officer sent a letter dated January 23, 1998 informing the applicant that his application for permanent residence had been denied. The letter states:
| In instructions accompanying applications set out by this office, applicants are advised that it is their responsibility to make arrangements to attend an interview should this be necessary. In the letter convoking you to an interview in this office on January 12, 1998, I again cautioned that it was your responsibility to make arrangements to attend. I specifically cautioned you in that letter that failure to attend would lead to the refusal of your application. I also outlined provisions to reschedule your interview, within a reasonable time period proceeding the interview, as well as specific instructions on the procedure for transferring your application to any other office where attendance at an interview could be arranged. |
| As you failed to appear for your interview, or make reasonable arrangements either to reschedule your interview, or transfer your file, the assessment required by the Act could not be made. Consequently, you come within the inadmissible class of person described in Paragraph 19(2)(d) of the Act, which reads as follows |
| (2) No immigrant...shall be granted admission if the immigrant...is a member of any of the following classes. |
| (d) persons who cannot or do not fulfil or comply with any of the conditions or requirements of this regulations. |
The applicant applied for judicial review of this decision.
[4] The main contention of counsel for the applicant is that pursuant to subsection 9(2) of the Act a visa officer is required to make an assessment of an application. Because the applicant's application was dismissed for failing to attend an interview, he claims no assessment of his application was made.
[5] I agree with counsel that s.9(2) imposes a mandatory duty on an immigration officer to assess an application. I am satisfied, however, that in this case, the application was assessed (as borne out by the CAIPS notes) and that while making the assessment the visa officer developed concerns about the application. At this point, the visa officer decided, in her discretion, that without an interview it could not be determined whether the issuance of an immigrant visa was appropriate. Indeed, visa officers' customarily recommend that applicants attend interviews. As stated by Heald J. in his Reasons for Order dated October 8, 1997 in this case, "In my view, subsection 9(2) of the Act clearly required the visa officer to assess the application on its merits. Customarily, the visa officer's decision will include a recommendation that the applicant attend an interview."
[6] 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.
[7] In my view, an assessment was done on the applicant's file, and that assessment determined that the application could not be approved without an interview that would alleviate some of the officer's concerns. It is clear from the CAIPS notes that the paper application was thoroughly reviewed ( indeed, the applicant's arguments essentially take issue with how thorough the review was). Based on the facts and evidence before me, while some other officer might have reached a different conclusion, it is clear that this visa officer did not fetter her discretion. Nor am I convinced that she exercised her discretion unlawfully. There is no indication the visa officer did not consider the total circumstances and the merits of the application.
[8] Further, as the respondent states, there is no legal obligation upon the Consulate General to assist applicants in obtaining the proper authorization from a foreign jurisdiction to enable him or her to attend an interview. Subsection 22.1(3) of the Regulation states: "An interview shall be conducted (a) where the application is submitted to a visa office or any other proper location specified by a visa officer." The applicant submitted his application in Buffalo. The procedure to have a file transferred was outlined by the visa officer. It is not the concern of the Immigration authorities that the applicant is out of status and has chosen to continue to reside in Canada without any status and that the Chinese Consulate chose not to renew his passport. The Canadian government has no control over the actions of foreign governments. The applicant could have left Canada once his status had run out. Indeed, an application for a visa is normally made from outside Canada.
[9] 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, this visa officer has clearly fulfilled her duties as required by the Act. There will be no award as to costs.
[10] Counsel for the applicant proposed two questions for certification:
| 1) Does an applicant's failure to attend an interview vitiate an officer's statutory duty to assess an application? |
| 2) Does a policy of requiring all out of status applicants to interview without regard to the actual merits of an application violate ss. 3(f) of the Act? |
[11] Given my reasons, the first question need not be certified as I have determined that an assessment was made. It therefore does not arise within the context of these proceedings. With respect to the second question, it is clearly important and if there were evidence to suggest that there exists such a policy I would certify it. However, there is no such evidence to suggest that the Consulate General in Buffalo follows a policy of requiring all out of status applicants to attend an interview. Thus, the question does not arise within the context of these proceedings and cannot be certified.
Ottawa, Ontario "F.J. McDonald"
July 29, 1998 Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 19980729
Docket: IMM-734-98
BETWEEN:
YANLING SU
Applicant
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER