Date: 20031020
Docket: IMM-5542-01
Citation: 2003 FC 1218
Ottawa, Ontario, October 20, 2003
Present: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
XIN PING XIE
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision by Ayesha Rekhi, a visa officer (the "officer") dated November 7, 2001, wherein it was determined that Xin Ping Xie (the "applicant") was not admissible for permanent residency as an investor.
[2] The applicant made a request for permanent resident status in Canada under the investor category. Her reported net worth was $580,000 CND; she had no liabilities.
[3] On October 7, 1999, an interview advance letter was sent to the applicant informing her that an interview would be required in order to assess her application. On September 10, 2001, an interview call letter was sent to the applicant informing her that her interview with a visa officer was scheduled for November 6, 2001, in Hong Kong. The letter included the following instructions in case the applicant wished to reschedule or cancel the interview:
Cancellation/Rescheduling of Interview: To be fair to our large number of applicants, interviews will not be rescheduled unless there are extenuating circumstances. If there are compelling reasons why you and/or your spouse and/or your dependants over 18 are unable to attend, please notify this office by fax at (852)_2847-7493 at least two weeks in advance of the interview date, quoting your file number and providing a detailed explanation and a return fax number. We will review your submission and advise by fax whether we are able to accommodate your rescheduling request.
If you fail to notify us that you will not attend, or if you fail to attend if your request for postponement had not been granted, we will assess your application according to the information available on the file at that time and make a selection decision on that basis.
[4] The applicant had made plans to join a tour group in order to be in Hong Kong on the date of the interview. The tour was cancelled less than two weeks before the interview. She did not notify the Consulate General immediately because she thought she could find another way to attend. The applicant failed to appear for her scheduled interview on November 6, 2001.
[5] On November 7, 2001, the officer reviewed the applicant's file and determined that rescheduling the interview was not warranted. The officer also denied the application for permanent residency because she was not satisfied that the applicant met the prescribed selection standards in the investor category.
[6] On the same day, the officer received a letter from the applicant's representative explaining that she had been notified that her tour to Hong Kong had been cancelled. The officer did not find that this letter constituted a detailed explanation of extenuating circumstances. In addition, the letter was not received two weeks prior to the interview date. Accordingly, she refused the rescheduling request.
[7] The applicant submits that the officer failed to consider important factors in her decision to refuse the rescheduling request, namely, the length of time the applicant had been waiting for this interview and the delay she will have to wait before she will have the opportunity to schedule another interview. The applicant believes this renders her decision reviewable. I disagree. The officer had discretion over whether or not she would reschedule the interview. She considered the request and found the explanation unsatisfying.
[8] A visa officer's duty of fairness in visa processing is minimal. In Bhajan v. MCI (1996), 34 Imm L.R. (2d) 189 at 196, Simpson J. stated,
[...] the content of the duty of fairness in visa processing in the period after the decision to interview has been made and prior to the actual interview must also be "minimal." Even so, I can imagine exceptional cases where fairness would require a visa officer in the Consulate to consider a request for an adjournment made for good reason and in a timely fashion.
[9] In that case, the rescheduling policy was found to be inconsistent with a minimal duty of fairness because it precluded the consideration of exceptional circumstances, and because it was not disclosed to the applicants before they chose the location for their interview.
[10] In the case at bar, the guidelines meet this requirement of fairness. It is not necessary for the Consulate to inform applicants of this policy prior to their choosing to interview there. The policy does permit adjournments in special circumstances and in a timely fashion. Thus, I am satisfied that the policy meets the requirement of minimal fairness.
[11] For these reasons, the application for judicial review is dismissed.
ORDER
THIS COURT ORDERS that the application for judicial review be dismissed.
"Danièle Tremblay-Lamer"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5542-01
STYLE OF CAUSE: XIN PING XIE
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 16, 2003
REASONS FOR ORDER
AND ORDER OF THE HONOURABLE MADAM JUSTICE TREMBLAY-LAMER
APPEARANCES:
Mr. Cecil L. Rotenberg, Q.C. FOR APPLICANT
Mr. Lorne McClenaghan FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Cecil L. Rotenberg, Q.C.
Barristers & Solicitors
255 Duncan Mill Road
Suite 808
Toronto, Ontario
M3B 3H9 FOR APPLICANT
Mr. Morris Rosenberg
Deputy Attorney General of Canada
Department of Justice
Toronto, Ontario FOR RESPONDENT