Date: 20061004
Docket: IMM-6897-05
Citation: 2006 FC 1177
Ottawa, Ontario, October 4, 2006
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
MAHMOOD QAISER QAZI
AMBER QAISER QAZI
KELEEM KEHAAN QAZI
SHAHEER QAZI
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1] On November
25, 1999, Mr. Mahmood Qazi applied for a permanent resident visa in the skilled
worker category. Subsequently, the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (Act) came into effect and so his application was evaluated
under the criteria set out in the Act and the Immigration and Refugee
Protection Regulations, SOR/2002-227 (Regulations) relating to Federal Skilled
Workers and was also evaluated under the prior legislative scheme, being the Immigration
Act, R.S.C. 1985, c. I-2 (former Act) and the Immigration Regulations,
1978, SOR/78-172 (former Regulations). A designated immigration officer at
the Canadian Consulate General in Hong Kong (officer) was not satisfied under
either legislative scheme that Mr. Qazi would be able to become economically
established in Canada. The application for permanent residence was, therefore,
refused.
[2] This
application for judicial review of that negative decision will turn upon the
propriety of the officer’s treatment of Mr. Qazi's failure to attend two
scheduled interviews.
BACKGROUND FACTS
[3] The
Computer Assisted Immigration Processing System (CAIPS) notes record the
following:
- On November 25, 1999, the
application for permanent residence was made.
- On January 3, 2000, the file was
paper screened.
- On April 8, 2003, an “IRPAization
letter” and document list was sent to Mr. Qazi.
- On February 13, 2004, an officer
wrote that the file "will be assessed under the former Act or IRPA
whenever [sic] is more favourable. In order for us to conduct a complete
assessment, will require to provide docs list which sent to him on
08Apr2003".
- On March 31, 2004, an officer
wrote “[n]eed to follow up on documents requested in April, 2003”.
- On April 13, 2004, a letter was
sent to Mr. Qazi. A copy of the letter is in the Tribunal Record. The
letter stated, "[a] review of your file indicates that we currently
have insufficient information to undertake such an assessment. Documents
were previously requested from you but to date we have not received the
necessary information. Therefore, please proceed with the items below
within 60 days from the date of this letter. Please note: timely
completion of these items may allow us to proceed favourably with your
application without the need to convoke you for a personal interview at
our office [emphasis removed from original]". There is no indication
on the file that the documents were provided.
- On March 10, 2005, an officer
wrote, "[c]ase discussed with IPM. Interview is warranted".
- On April 1, 2005, a letter was sent
to Mr. Qazi in care of his consultant. The letter is found in the
tribunal record, and it states in part:
This refers to your application
for permanent residence in Canada. In order to determine if you comply with
Canadian immigration requirements, it will be necessary for you to attend an
interview at the Consulate General at the following date and time:
Date: 7 June 2005,
Tuesday Time: 10:00 a.m.
- By letter dated May 20, 2005, Mr.
Qazi's new counsel wrote requesting that the interview be waived in its
entirety, or be held by telephone or through video conferencing
facilities, or be postponed. Some updated information was provided with
respect to the application.
- On June 1, 2005, the officer
wrote, "[w]ill inform representative that interview cannot be waived,
that in view of applicant's inability to attend 2 scheduled interviews on
22Apr2003 and 07Jun2005, a last interview opportunity will be offered.
Failure to attend last scheduled interview will result in refusal of
application". In a subsequent entry, the officer corrected this
information to note that the interview scheduled for April 22, 2003 was
cancelled and an interview call-in letter advising of such date had never
been sent.
- On June 2, 2005, a letter was
sent by the officer to Mr. Qazi. A copy is in the tribunal record and it
states:
Dear applicant,
This refers to your application
for permanent residence in Canada.
Please be advised that an
interview is required. In view of your inability to attend two scheduled
interviews on 22 April 2003 and 07 June 2005, a last interview is scheduled on
13 September 2005 at 09:00 a.m.
Please note that failure to
attend your re-scheduled interview will result in the refusal of your
application, without exception.
Please refer to the attached
interview supplement list for documents to be presented at interview.
Yours truly, [emphasis
omitted]
- It is common ground that Mr. Qazi
did not attend the interview on September 13, 2005. By letter dated
August 18, 2005 his counsel had reiterated the request that the interview
be waived.
- On September 14, 2005, the
officer reviewed the above history and proceeded to assess Mr. Qazi's
application for a permanent resident visa on the basis of the information
contained in the Mr. Qazi's file.
THE OFFICER’S DECISION
[4] With
respect to the criteria contained in the former Regulations, Mr. Qazi received
61 units of assessment, however 70 units were required in order to qualify for
an immigrant visa. No units were awarded for experience or personal
suitability because in the absence of an interview Mr. Qazi's "claimed
[work] experience could not be confirmed" nor could his personal
suitability be assessed. A maximum of eight and ten units could have been
awarded respectively for experience and personal suitability.
[5] With
respect to the assessment under the Regulations, Mr. Qazi received 44 points,
but 67 points were required for the issuance of a visa. No points were
awarded for experience because the claimed work experience could not be
verified in the absence of an interview, and no points were awarded for
adaptability. A maximum of 21 and 10 points were available for those
criteria. Mr. Qazi was awarded 20 out of a possible 25 points for his
education.
THE ERRORS ASSERTED
[6] Mr.
Qazi asserts that the officer made the following errors:
(i) In respect of the assessment under both legislative schemes,
the officer erred by awarding zero points for work experience.
(ii) In respect of the assessment under the Regulations, the
officer erred by awarding 20 and not 25 points for Mr. Qazi's education.
(iii) In respect of the assessment under the Regulations, the
officer erred by awarding zero and not eight points of assessment for adaptability.
CONSIDERATION OF THE DECISION
(i) The assessment of work
experience
[7] Mr.
Qazi argues that the officer had before him objective and verifiable documents
confirming Mr. Qazi's claimed experience. Nowhere in his decision did the
officer raise any issue with respect to the authenticity of those documents,
nor did the officer cast any doubt upon or contradict Mr. Qazi's work
experience. It is said that it was absurd to suggest that because Mr. Qazi
did not attend an interview, the officer was unable to confirm his work
experience.
[8] In
support of this argument Mr. Qazi points to the guidance given to officers in Chapter
6 of the Overseas Processing Manual (OP 6) which deals with processing
applications in the Federal Skilled Workers category. Section 11.2 of OP 6
provides:
11.2. Use of interviews
Selection standards are
objective and clearly defined, and eligibility can be assessed in
straightforward cases through the information provided on the application for
permanent residence forms and the accompanying supporting documentation.
In most cases, officers should
be able to make selection decisions—either to approve or refuse
applications—from the documentation provided. However, in some cases, an
interview may be necessary.
Any concerns officers have
regarding the accuracy or authenticity of information or documentation should
be communicated to the applicant, whether these concerns are raised as the
result of site visits, telephone checks or other means. Concerns can be
communicated to the applicant in writing or at interview.
Officers may
conduct interviews with applicants to:
• ensure
that information submitted on the application is truthful and complete;
• detect
and deter fraudulent information and documents;
• clarify specific information;
• conduct quality
control.
Officers may not conduct
interviews to:
• assess language
abilities;
• determine
personal suitability (as this factor no longer exists).
[9] In
considering this argument, I begin by observing that the former Regulations
contained two provisions relevant to the requirement that Mr. Qazi attend an
interview. Subsection 22.1(1) of the Regulations was a general provision
that allowed an immigration officer to require an applicant for landing to
attend at an interview. Further, Schedule 1 of the former Regulations directed
that units of assessment for personal suitability were to be awarded on the
basis of an interview with the applicant. The jurisprudence of this Court
established that at least where an immigration officer thoroughly reviewed the
written application and determined that an interview was required, the failure
of an applicant to attend the interview could justify rejection of an
application for landing. See, for example. Voskanova v. Canada
(Minister of Citizenship and Immigration), [1999] F.C.J. No. 449 and Zhu
v. Canada (Minister of Citizenship and Immigration), [2002]
F.C.J. No. 99.
[10] In
my view, the circumstances before the Court in this case with respect to the
assessment of the application under the former Act and former Regulations are
indistinguishable from those before the Court in Zhu. There, at
paragraph 26, my colleague Mr. Justice MacKay wrote:
26 I conclude that in the
circumstances of this case the visa officer did ultimately assess the
application on the basis of the documents submitted by the applicant but
concluded no final assessment could be made without an interview. Having
failed to keep three appointments made for an interview, the officer dismissed
the application since she was not satisfied that the applicant had met the
requirements set out in the Act for admission as an investor. He was thus a
person within paragraph 19(2)(d) of the Act -- one not to be granted
admission since he did not fulfil or comply with directions lawfully made or
given under the Act or the Regulations requiring he be interviewed to complete
assessment of his application.
[11] While
Mr. Qazi failed to attend two and not three interviews, on the same
reasoning I similarly find in the present case no reviewable error in the
officer's assessment of Mr. Qazi's application under the former Act and former
Regulations.
[12] As
for the assessment of Mr. Qazi's work experience under the Act and Regulations,
an officer retains discretion under the current legislation to require an
applicant to attend an interview. This flows from subsection 16(1) of the Act
and is recognized in OP 6. While section 11.2 thereof suggests that in
most cases selection decisions may be made from the documentation provided, it
provides the following admonition to officers:
Note: Visa offices will be
expected to undertake both targeted and random verifications to detect and
deter fraud. The number and percentage of cases subjected to verification
should be high enough to act as a meaningful disincentive to those who would
attempt such practices. A40 makes material misrepresentation a grounds for
inadmissibility in its own right and prescribes a two-year ban on those both
directly and indirectly involved in such practices.
Interviews, site visits and
telephone checks have proven to be the most effective ways to detect and to
combat fraud. The information gained at interviews where fraud is detected
will help officers to identify current trends and patterns and to refine their
profiles for ongoing use.
[13] An
applicant for an immigrant visa has no right to direct that his or her
application be processed without an interview. The provision in writing of all
of the information and documents required by the Act and Regulations is simply
a condition precedent to the substantive consideration of the application (see:
paragraph 10(1)(c) of the Regulations and section 8.2 of OP 6).
[14] As
to the degree of scrutiny to be applied to a decision of an officer to require
an interview, in Su v. Canada (Minister of Citizenship and Immigration),
[1998] F.C.J. No. 1091, Mr. Justice McDonald (then a judge of what was the
Federal Court Appeal Division sitting as a judge of the Federal Court Trial
Division) wrote at paragraph 6 that:
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. [underlining
added]
[15] Thus,
the Court held that the decision to call an applicant to an interview would be
reviewable on the standard of patent unreasonableness.
[16] Su
was a decision rendered in respect of the legislative provisions contained in
the former Act and Regulations. However, the current legislative regime
continues to vest a discretion in an officer to require attendance at an
interview. In determining the standard of review to be applied to the exercise
of that discretion, it is necessary to consider the four factors that comprise the
pragmatic and functional analysis (the existence of a privative cause, relative
expertise, the purpose of the provision and the Act, and the nature of the
question). Having regard to those factors:
(1) The requirement of leave to judicially review an officer's
decision suggests that Parliament intended a limited right of review (see: Suresh
v. Canada (Minister of Citizenship and Immigration), [2002] 1
S.C.R. 3 at paragraph 31).
(2) Expertise is a relative concept, and the expertise must be
assessed in the context of the specific issue before the decision-maker. Officers
will acquire expertise determining when an interview is required. The Court
has no greater expertise in respect of this fact-based decision. This factor
counsels deference.
(3) The purpose of the provision is to facilitate the production
of complete and accurate information. It does not require the balancing of the
interests of various constituents. This factor suggests a stricter standard of
review.
(4) The decision whether to require interview is highly
discretionary and fact-based. However, subsection 16(1) of the Act requires an
applicant to produce “all relevant evidence and documents that [an] officer
reasonably requires”. This means that the decision to require information is
not completely open-ended. It suggests an intent that there be some review of
an officer’s decision.
[17] In
my view, these factors lead to the conclusion that the decision should be
reviewed on the standard of reasonableness simpliciter. Review on this
standard does not entitle the reviewing court to ask what the correct decision
would have been. Rather, “[a]pplying the standard of reasonableness gives
effect to the legislative intention that a specialized body will have the
primary responsibility of deciding the issue according to its own process and
for its own reasons. The standard of reasonableness does not imply that a
decision-maker is merely afforded a ‘margin of error’ around what the court
believes is the correct result”. See: Law Society of New Brunswick
v. Ryan, [2003] 1 S.C.R. 247 at paragraph 50.
[18] Applying
that standard to the officer's decision, the CAIPS notes show that at least two
officers determined that further information was required, as evidenced by the
requests sent out by mail for more information (even if those requests were not
received, as Mr. Qazi suggests in the affidavit filed in support of his
application). At least two officers concluded that an interview was required.
On the basis of the matters recorded in the CAIPS notes I find it was not
unreasonable to request that Mr. Qazi attend an interview so as to provide
further information so that an assessment could be made whether Mr. Qazi
met the requirements for admission.
[19] Thereafter,
when Mr. Qazi did not attend the last scheduled interview, the officer assessed
the application on the basis of the documents submitted, but concluded that he
was unable to assess or confirm Mr. Qazi's work experience without an
interview. That decision was not, in the circumstances of this case,
unreasonable in that a reasonable person could proceed from the evidence to the
result.
(ii) The assessment of education
and (iii) The assessment of adaptability
[20] Assuming
that the officer erred on both these grounds as Mr. Qazi argues, Mr. Qazi would
have been entitled to an additional 13 points, resulting in a total award of 57
points. However, 67 points were required. Thus, any such errors were not be
material to the officer's assessment because it would not have changed the
outcome.
(iv) Conclusion
[21] I
am troubled by the fact that the CAIPS notes do not explain in any detail why
it was determined that an interview was required. In my view, better practice
would be to enter some brief rationale into the CAIPS notes for the decision to
require that an interview be convoked. However, the onus is upon each
applicant to show that he or she meets the selection criteria for admission.
On the facts of the present case, where the tribunal record shows that
additional written material was required and requested from the applicant, and
where the applicant failed to attend two scheduled interviews knowing of the
consequences of his failure to attend, I am not prepared to find that the officer
was obliged to more fully explain in CAIPS notes why an interview was required.
[22] For
these reasons, the application for judicial review is dismissed.
[23] Mr.
Qazi did not seek certification of a question and on the specific facts before
me no question is certified. This decision turns very much on the facts before
the Court and I am not satisfied that they give rise to a question of general
importance.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. The application for
judicial review is dismissed.
“Eleanor R. Dawson”
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