Date: 20030424
Docket: IMM-2793-02
Citation: 2003 FCT 502
Ottawa, Ontario, this 24th day of April, 2003
PRESENT: THE HONOURABLE JOHANNE GAUTHIER
BETWEEN:
JOGINDER SINGH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of the visa officer who refused Mr. Singh's application for permanent residence (entrepeneur category) because he failed to attend his scheduled immigration selection interview and rejected his request for a waiver of selection criteria on humanitarian and compassionate grounds because "she was unable to make an informed decision with the data available".
[2] The factual background of this application is complex and not particularly relevant to the issues before this Court. Suffice it to say that Mr. Singh is a Sikh from Punjab, India, who has been living and working in Canada since November 1990. He could not attend any interview outside of Canada because he had no passport. His last valid passport expired in 1992 and despite several attempts to renew it, the Indian government failed to respond, allegedly, because he had originally claimed refugee status in Canada. He also requested a ministerial exemption to attend his interview in Canada, but which was refused.
[3] The parties advance arguments with respect to two issues:
(i) Did the visa officer create a reasonable expectation for Mr. Singh that his file would not be rejected on the basis of his failure to attend his interview?
(ii) Did the visa officer fail to exercise her jurisdiction by refusing Mr. Singh's application for permanent residence without assessing the merits of his request for a waiver of selection criteria on the basis of humanitarian and compassionate grounds?
[4] The respondent argues that, in fact, the visa officer did not simply base her refusal on Mr. Singh's failure to attend the interview. Rather having evaluated the file, she concluded that a positive decision could not be made based on the written documents and that an interview was absolutely necessary in light of her concern and the complexity of the file.
[5] The respondent further submits that the argument with regard to reasonable expectation is not founded since the visa officer did evaluate the file and it is her evaluation that prompted her request for an interview. She was entitled to require the applicant's presence pursuant to the Immigration Regulations, 1978, SOR 78-172, (the "Regulations") and thus was entitled to reject the application on the ground that Mr. Singh failed to attend. The respondent cites several cases in support of this assertion (Scislowicz v. Canada (M.C.I.), [2000] A.C.F. No. 991 (QL), IMM-3528-98 (F.C.T.D.); Su v. Canada (M.C.I.), [1998] A.C.F. No. 1091 (QL), IMM-734-98; Voskanova v. Canada (M.C.I.), [1999] A.C.F. No. 449 (QL), IMM-2736-98 (F.C.T.D.)).
Reasonable expectation
[6] The Court agrees with the principles followed in the decisions cited by the respondent. In normal circumstances, if a visa officer requests an interview pursuant to section 22.1 of the Regulations and the applicant fails to attend, his application can be refused on that basis. In fact, it appears from the file that applicants are expressly warned about this possibility in the first notice for an interview they receive from the Immigration Department.
[7] Mr. Singh was so advised on March 15, 2001, (first notice for an interview to be held on July 10, 2001) that:
If you confirm that you WILL attend, we will send an acknowledgement within 7 days. If you fail to present yourself having confirmed attendance, your application WILL BE REFUSED.
If you confirm that you will NOT attend, or if you fail to respond at least 6 weeks prior to your scheduled interview, then your interview time will be cancelled without further advice from this office. In this case, your file will be placed in a queue for replacement in the next available interview time. You will be given not more than 6 weeks notice, and not less than 4 weeks notice to appear at the new date and time. You MUST attend this second interview - you will be given no opportunity to cancel or reschedule a second time.
[8] On May 11, 2001, Mr. Singh's counsel wrote to confirm Mr. Singh's intent to attend the July 10 interview stating, however, that if the difficulties with the Indian authorities continued, he might be unable to attend personally, but that in any event his counsel would be there on his behalf. The letter also mentioned that if this arrangement is not possible, Mr. Singh should be advised as to what other alternative arrangements could be made in order to process his application.
[9] Neither Mr. Singh nor his counsel attended on July 10, 2001, given that his counsel had been advised that this alternative was not acceptable. Had his application been refused as a result thereof, without any more being said or done, the principle followed in the decisions cited by the respondent would apply
[10] However, this is not what happened. On July 11, 2001, the Consul and Deputy Manager of Program at the Canadian Consulate General in New York wrote to Mr. Singh to say, among other things:
...If Mr. Singh wishes to pursue the current application, he will be convoked for a personal interview again on the understanding that he will attend. However, if Mr. Singh is unable to attend an interview, his application will be assessed on the basis of the information available, and there can be no guarantee that such an assessment would be favorable.
[11] This is a deviation from the normal procedure referred to in the general notice sent earlier to the applicant and referred to in paragraph 7 above. This language is sufficient to create a reasonable expectation on the part of Mr. Singh that his application would not be automatically refused if he failed to attend his next interview and that a further assessment would be made on the basis of the written material submitted.
[12] It is very different than what was said, for example in the Scislowicz case cited by the respondent, where the program manager had expressly advised Mr. Scislowicz that his failure to attend would result in a refusal of his application because the interview was indispensable.
[13] The Court finds that the visa officer was bound by the undertaking given to Mr. Singh. This promise as to the procedure to be followed in his case did not purport to create any substantive right as Mr. Singh had been advised that there would be no guarantee that the assessment would be favourable. It was not in conflict with any statutory requirement.
[14] In effect, despite the visa officer's apparent belief that interviews are mandatory for all applicants in the entrepreneur category (see paragraph 9 and 19 of the visa officer's affidavit dated August 12, 2002), the respondent could not direct the Court to any such statutory requirement.
[15] The parties agreed that the only relevant section is section 22.1 of the Regulations which reads as follows:
| 22.1(1) An immigration officer may require that an applicant for landing who is in Canada, or an applicant for an immigrant visa, and dependants of the applicant, if any, be interviewed for the purpose of assessing the application.
(2) An immigration officer may require that an applicant for a visitor visa, student authorization or employment authorization and accompanying dependants of the applicant, if any, be interviewed for the purpose of assessing the application. [My emphasis]
... |
|
22.1(1) L'agent d'immigration peut exiger de toute personne au Canada qui demande le droit d'établissement ou de toute personne qui demande un visa d'immigrant, ainsi que des personnes à leur charge, le cas échéant, qu'elles subissent une entrevue aux fins de l'examen de la demande.
(2) L'agent d'immigration peut exiger de toute personne qui demande un visa de visiteur, une autorisation d'étude ou une autorisation d'emploi, ainsi que des personnes à sa charge qui l'accompagnent, le cas échéant, qu'elles subissent une entrevue aux fins de l'examen de la demande. [Je souligne]
[...]
|
|
|
|
|
[16] This provision does not impose a statutory duty to interview applicants in all cases nor does it create a statutory duty to reject an application for failure to attend an interview.
[17] On May 20, 2002, the visa officer wrote to Mr. Singh stating:
I refer to your application for permanent residence in Canada.
I have refused your application because you have failed to comply with a direction to appear for a personal interview made under the authority of subsection 22.1(1) of the Immigration Regulations. This section provides:
22.1(1) An immigration officer may require that an applicant for landing who is in Canada, or an applicant for an immigrant visa, and dependents of the applicant, if any, be interviewed for the purpose of assessing the application.
Specifically, you have failed to attend your scheduled immigration selection interview on 28 March 2002. You previously cancelled your interview on 10 July 2002.
[18] In this respect, the CAIPS notes for May 9, 2002, read:
APPLICATION REFUSED. SUBJ FAILED TO ATTEND SCHEDULED INTERVIEW TO DETERMINE IF HE MEETS THE REQUIREMENTS OF THE CATEGORY IN WHICH HE HAS APPLIED. REQUEST TO INTERVIEW BY TELEPHONE OR TO HAVE HIS AGENT APPEAR FOR HIM CANNOT BE ACCEPTED. CLEARLY MANY ELEMENTS TO BE CONSIDERED - INTERVIEW MANDATORY
[19] Clearly, this decision was contrary to the undertaking made on July 11, 2001.
[20] The respondent argues that the Court should consider the earlier entries in the CAIPS notes which indicated that an assessment of the file was made prior to requesting the second interview on July 11, 2001, and that the visa officer was then satisfied that Mr. Singh did not meet the definition of entrepreneur and the required selection criteria.
[21] That may well be, but on July 11, Mr. Singh was told that his application "will be assessed on the basis of the documentation on file". To accept the respondent's argument would render this representation meaningless. If there was no need to reassess the file and no way that the application could be granted as it stood, why not say so on July 11?
[22] Also, it would be in direct contradiction with clear wording of the refusal letter dated May 20, 2002, and the Court is not prepared to rewrite the decision..
[23] The visa officer had to assess the application after being advised that Mr. Singh would not attend the March 28, 2002, interview. This assessment was to take into consideration all the documents on file up to the date of her assessment (including the correspondence and arguments raised since July 11, 2001). She could reject it on its merits but she could not reject it for the reasons invoked in her letter of refusal. The Court will not assume that the result of such an assessment would have been negative. If such an assumption could be made, the letter of July 11 could not have been written.
[24] With respect to the visa officer's decision (section 2.1 of the Regulations) to waive a selection criteria on humanitarian and compassionate grounds because she was "unable to make an informed decision on the data available", the respondent argues that it constitutes a separate decision that is not the subject of the application before the Court.
[25] Mr. Singh submits that this request, made in May 2001, was part of his application for permanent residence and was simply another ground on which his application was to be assessed.
[26] Mr. Singh's application for judicial review is drafted in general terms and simply states that it is in respect of:
The decision of May 20, 2002 of the Consul and Program Manager Anne Arnott file No. B0364 24765 where the applicant's application for permanent residence was rejected.
[27] After hearing the arguments of Mr. Singh at the hearing, the respondent appeared to agree that the request to waive a selection criteria was indeed part of the overall decision to accept or refuse Mr. Singh's application for permanent residence.
[28] The Court finds that the general wording of the application for judicial review is sufficient to encompass this request.
[29] The CAIPS notes say very little about this part of the process except:
I AM THE PROGRAM MANAGER, AND AS SUCH HAVE THE AUTHORITY TO MAKE A DETERMINATION ON H & C GROUNDS. I AM UNABLE TO MAKE AN INFORMED DECISION WITH THE INFORMATION AVAILABLE. WHILE IT IS VERY CLEAR THAT SUBJ HAS BEEN CONTINUOUSLY IN CANADA FOR A NUMBER OF YEARS, THIS DOES NOT IN AND OF ITSELF CONSTITUTE H & C GROUNDS FOR PERMANENT RESIDENCE IN CDA. AS SUBJ HAS FAILED TO APPEAR FOR INTERVIEW TO HAVE SUFFICIENT EVIDENCE PRESENTED TO ADDRESS THIS ISSUE, I CANNOT APPROVE THIS APPLICATION ON H & C GROUNDS.
[30] Clearly, the visa officer did not consider the elements raised in Mr. Singh's counsel's letters of March 22, 2002 and May 11, 2001, which included the risk for Mr. Singh of returning to India. She did not review the material filed in respect of that risk. She did not attempt to evaluate the merits on the basis of the arguments on file.
[31] For the reasons explained above with respect to her decision to reject the application in the entrepreneur category, her refusal to approve the application on H & C grounds is reviewable.
[32] The decision of May 20, 2002, is quashed in its entirety and the application for permanent residence of Mr. Singh shall be reevaluated by a different visa officer in accordance with the law.
[33] This decision raises no question of general importance that warrants certification.
ORDER
THIS COURT ORDERS that:
1. The motion is granted. The visa officer's decision of May 20, 2002, is quashed in its entirety and the application for permanent residence of Mr. Singh shall be reevaluated by a different visa officer in accordance with the law.
2. No question of general importance is certified.
"Johanne Gauthier"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2793-02
STYLE OF CAUSE: March 12, 2003
PLACE OF HEARING: Montréal, Québec
DATE OF HEARING: March 18, 2003
REASONS FOR ORDER AND ORDER: GAUTHIER J.
DATED: April 24, 2003
APPEARANCES:
Me Jean-François Bertrand FOR APPLICANT
Me Édsith Savard FOR RESPONDENT
SOLICITORS OF RECORD:
Bertrand & Deslauriers FOR APPLICANT
83 St-Paul Street West
Montréal, Québec H2Y 1Z1
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Department of Justice
Montréal, Quebec, H2Z 1X4