Date: 20000531
Docket: IMM-30-99
Ottawa, Ontario, this 31st day of May, 2000
PRESENT: THE HONOURABLE MADAM JUSTICE E. HENEGHAN
BETWEEN:
VLADIMIR DOTSENKO
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
HENEGHAN J.
[1] This is an application for judicial review in which the Applicant seeks the judicial review of a decision compelling Vladimir Dotsenko (the "Applicant") to attend the immigrant-visa interview in New York.
[2] It is necessary to briefly review the facts of this case. By letter dated September 24, 1998, Mr. Leahy who is counsel for the Applicant, referred the application for permanent residence of Vladimir Dotsenko and Irina Dotsenko to the Canadian Consulate General, Buffalo. Included with the application was a request that the Applicant and his wife be interviewed at the Canadian Embassy in Moscow.
[3] The letter also indicated that Mr. Leahy was unclear as to where the applications should be filed because the business-centre directive includes Moscow as an interviewing post but does not say where one is to file an application in order to reach Moscow. Mr. Leahy also states that he had been returned a business class application with instructions to file the application at a business centre.
[4] Counsel for the Applicant is referring to a policy that all business category applications must be submitted to one of the following nine business centres: Beijing, Bonn, Buffalo, Damaskus, Hong Kong, London, Paris or Singapore. These immigration centres may forward business applications, after initial review and without cost to applicants to either Buenos Aires, Moscow, New York or Seattle.
[5] It is useful to note that, although the letter dated September 24, 1998 indicates that the Applicant requested that he be interviewed in Moscow, there is an e-mail included in the materials which indicates that Mr. Leahy requested that the Applicant be interviewed in Buffalo. This e-mail is dated December 8, 1998 and stems from an exchange of e-mails between Derek White and counsel for the Applicant.
[6] By letter dated December 11, 1998, the Canadian Consulate General in Buffalo advised the Applicant that in order for a final decision to be made on his application he must attend an interview. The letter indicated that the interview was scheduled to take place in New York. Paragraph 3 of this letter dated December 11, 1998 indicated that if the Applicant was unable to attend the interview in the United States he could apply to transfer the file to another visa office. Although the paragraph refers to a second page of the letter for a list of locations of other visa offices abroad and instructions for transferring a file, that second page is not included.
[7] Given the nature of the Applicant"s application, the Applicant could only transfer his application to certain centres. Nevertheless, on the record before me, there is no evidence that the Applicant was refused a request to transfer a file to Moscow or that the Applicant even applied for such a transfer. The Applicant had requested that he be interviewed in Moscow but that request was subsequently followed by a request that he be interviewed in Buffalo. When the Applicant received notice that the interview was to be conducted in New York, the Applicant did not attempt to transfer the file. Instead, the Applicant served the Respondent with the Applicant"s Notice of Application to contest the decision to interview the Applicant in New York.
[8] In light of the fact that the evidence discloses that no decision was ever taken, not even an interlocutory decision which would not be subject to judicial review, it is clear that there is no basis on which I could grant this judicial review.
[9] In closing, I would also like to add that although visa officers attempt to accommodate applicants" requests relative to where applications are processed and the interview is conducted, applicants do not have any right to select a particular post. In Chen v. Canada (Minister of Citizenship & Immigration) (1999), 166 F.T.R. 78 (F.C.T.D.), Evans J, as he then was, stated:
| The applicant's second jurisdictional argument was that the creation of the RPC was unsupported by any legal authority, and that the applicant was entitled to have his application determined at the post that he designated when he filed his visa application. I find this argument equally without merit because it assumes that every administrative action requires discrete legal authorization. This is not true of administrative action that has no legal consequences for individuals, nor adversely affects their legal rights or interests. The internal arrangements made for the processing of visa applications are within the discretion of the Minister. Moreover, as Mr. Leahy observed, subsection 115(b) of the Immigration Act, R.S.C. 1985, c. I-2 [as amended] empowers the Minister by order to designate immigration stations for the purpose of the Act. |
| Visa applicants have no statutory right to have their application processed at any particular post. Naturally, efforts will be made to ensure that applicants are interviewed at the post most convenient for them, so they do not have to travel further than is necessary. The fact that applicants are asked on the application form to designate the post at which they would prefer their application to be processed, and that a fee is charged for processing visa applications, do not create any contractual right in an applicant to have the application processed at the designated post. 1 |
Similarly, in Voskanova v. Canada (Minister of Citizenship and Immigration) (1999), 167 F.T.R. 258 (F.C.T.D.), Justice Nadon wrote:
| ...The same rationale also applies to the applicant's request to have her file transferred to Detroit. It should perhaps be stated that it is not up to an applicant to decide where he or she will be interviewed. That decision is made by a Visa Officer. I would suspect that Visa Officers make a genuine attempt to accommodate applicants in respect of the place of interview. It is only fair that they do so considering that a chosen place of interview might force, for example, an applicant to incur considerable costs in getting there. The interview might be conducted at a place more convenient to the applicant and thus, where possible, all efforts should be made by the Visa Officers to accommodate applicants. In the end, however, the place of interview must remain at the discretion of a Visa Officer. |
| Where, as here, an applicant requests that her file be transferred and advises that she will not attend an interview scheduled for the next day, I see no reason why that request should be considered when the applicant does not provide any explanation for the non-attendance and the request for transfer. In my view, the decision refusing to transfer the applicant's file from New York to Detroit is one that the Visa Officer could make in the exercise of her discretion. I have not been persuaded that the Visa Officer failed to exercise her discretion properly. 2 |
[10] The application for judicial review is dismissed.
[11] Although counsel for the Applicant made a request for certification of a question, I am of the opinion that no question should be certified in this case.
ORDER
[12] IT IS ORDERED that the application for judicial review be dismissed.
"E. Heneghan"
J.F.C.C.
OTTAWA, Ontario
May 31, 2000
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