Zhu v. Canada (Minister of Citizenship and Immigration), 2002 FCT 81

Date: 20020124

Docket: IMM-2366-00

Neutral citation: 2002 FCT 81

BETWEEN:

                                                                     JIANPING ZHU

                                                                                                                                                       Applicant

                                                                              - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                                            REASONS FOR ORDER

MacKAY J.

[1]                 This is an application for judicial review of the decision of a visa officer in Manila, Philippines, dated March 24, 2000, refusing the applicant's application for permanent residence in Canada, under the investor category.

Facts

[2]                 Three different interview appointments were scheduled for the applicant, including one appointment which was rescheduled by the Embassy with three month's notice. The applicant was not able to attend any of the three appointments and on each occasion requested a new appointment.     

[3]                 The applicant is a citizen of China, who had established a substantial shoe factory and business by 1997 when he applied through the Canadian Embassy in Manila, to immigrate to Canada, with his family.

[4]                 The Embassy received the applicant's application for permanent residence on September 19, 1997. On December 10, 1998, the Embassy sent a letter to the applicant, informing him that an interview had been scheduled for February 16, 1999, and asking him to submit a number of documents in support of his application. The letter further stated:

If for any reason, you are unable to keep the appointment we have made for you, please inform the Embassy at least thirty days prior to your scheduled interview. Requests to change a scheduled interview time will be granted only for exceptional reasons. Failure to attend interviews for reasons not deemed to be exceptional may result in refusal of your application. (emphasis in original)

[5]                 On February 1, 1999, the visa officer received a fax dated January 29, 1999 from the applicant's lawyer, stating that the applicant was unable to attend the interview scheduled for February 16, 1999 as it coincided with the Chinese New Year holiday.

[6]                 On March 22, 1999, a program assistant, on instructions given by the visa officer, sent a letter convoking the applicant to an interview on August 18, 1999. The letter repeated the same caution found in the letter of December 10, 1998 about failure to attend a scheduled interview, and that letter also contained the following hand-written note:

* THIS IS A FINAL INTERVIEW OPPORTUNITY. IF ATTENDING AN INTERVIEW IN MANILA IS INCONVENIENT FOR YOU, YOU MAY WISH TO TRANSFER YOUR FILE TO THE CANADIAN EMBASSY IN BEIJING. (capitalization in original)

[7]                 On May 18, 1999, the program assistant wrote the applicant again, stating that "...due to unforseen redeployment of our resources, your scheduled interview on 18 August 1999 has been postponed to September 13, 1999 at 10:30 am."

[8]                 On August 27, 1999, the Embassy received a fax from the applicant's lawyer, dated August 26, 1999, stating that the applicant would not be able to attend the interview scheduled for September 13, 1999 because he would be in Italy for an important business meeting at the time. The letter further advised that the applicant would be available to attend an interview in October 1999 or any other subsequent month other than February 2000.

[9]                 On September 2, 1999, the visa officer made the following entry in her CAIPS notes:

NORMALLY I WOULD REFUSE ON NON-COMPLIANCE AT THIS POINT AS PI HAS CANCELLED SECOND INTERVIEW. HOWEVER, I NOTE THAT WE CHANGED INTERVIEW DATE FOR SECOND INTERVIEW AND THAT PI HAS RESPONDED IMMEDIATELY STATING HE IS UNABLE TO ATTEND. IN THE INTERESTS OF FAIRNESS, I WILL MAKE AN EXCEPTION IN THIS CASE AND RE-SCHEDULE FOR NOVEMBER AS OCT IS UNAVAILABLE.

(capitalization in original)

[10]            On September 15, 1999, the Embassy wrote the applicant to inform him that his interview had been rescheduled for November 2, 1999. The letter repeated the caution found in the letters of December 10, 1998 and March 22, 1999, about consequences of failure to attend a scheduled interview. The letter also requested that additional documents in support of the application be provided.

[11]            On October 21, 1999, the Embassy received a fax from the applicant's lawyer, dated October 20, 1999, stating that the applicant and his spouse would be unable to attend the interview on November 2, 1999 because the applicant's spouse had lost her passport. The letter advised that the applicant and his spouse would need Philippine entry visas to attend the Embassy in Manila, and it was expected these visas would be obtained in two to three weeks. For the applicant the Embassy was requested to schedule another interview but only after the applicant advised that he had obtained the visas.

[12]            It appears the file was set aside after that fax was received. It was brought forward for the visa officer's review on March 9, 2000. On that date, the visa officer made the following entry in her CAIPS notes:

FILE CAME FORWARD FOR REVIEW TODAY - IT HAD BEEN PA'D. PI HAS BEEN CONVOKED TO INTERVIEW THREE TIMES: 16FEB99, 13SEP99, AND 02NOV99. IN THE CASE OF THE LAST DATE, AN EXCEPTION WAS MADE TO ALLOW PI A THIRD INTERVIEW APPOINTMENT ON THE BASIS THAT HE WAS TRAVELLING AND PROMPTLY REPLIED TO OUR INTERVIEW NOTICE (AFTER WE POSTPONED THE INTERVIEW BY A MONTH FROM 18AUG99 TO 1SEP99) TELLING US HE WAS UNAVAILABLE. WE ALSO ACCOMMODATED HIS REQUEST FOR AN INTERVIEW IN ANY UPCOMING MONTH EXCEPT FEB2000. WE CANNOT HOLD THIS FILE OPEN INDEFINITELY AND PI HAS BEEN INFORMED THAT FAILURE TO APPEAR AT SECOND SCHEDULED INTERVIEW WOULD LIKELY RESULT IN REFUSAL. HE HAS ALREADY BEEN GIVEN THE BENEFIT (sic) OF A THIRD INTERVIEW DATE. PI HAS MADE NO EFFORT TO CONTACT THIS OFFICE SINCE OCTOBER 1999. INTERVIEW IS REQUIRED INTHIS (sic) CASE TO DETERMINE WHETHER PI MEETS CRITERIA IN IMMCAT (sic). APPLICATION REFUSED ON GROUNDS THAT PI HAS FAILED TO COMPLY. (capitalization in original)

[13]            On March 24, 2000, the Embassy sent the applicant a refusal letter, which stated in part:

We regret to inform you that your application cannot be approved at this time because you are a member of the inadmissible class of persons described in paragraph 19(2)(d) of the Immigration Act, 1976 [i.e. persons who, inter alia, do not comply with directions lawfully made under the Act or the regulations]....

...             

You are unable to comply with the requirements of section 9(2) because you were convoked for an interview by a visa officer on the following dates in 1999: 16 February, 13 September, and 02 November but did not attend the scheduled interviews. You have failed to present yourself to a visa officer to enable him to determine your admissibility to Canada.

[14]            I note that in her letter the visa officer quoted s-s. 9(2) of the Immigration Act, 1976, S.C. 1976-77, c. 52, which was revised by S.C. 1992, c. 49, s. 4, but the amendment of s-s. 9(2) in 1992 makes no practical difference in this case. That subsection requires assessment of an application for an immigrant's visa.

Issues and Analysis

Did the visa officer commit a breach of procedural fairness, either by failing to respond to the applicant in a timely manner, or by failing to warn of consequences of not attending the final interview scheduled?

[15]            The applicant submits that the visa officer erred by waiting five months to respond to his letter of October 20, 1999. In the applicant's submission, this delay precluded him from taking any remedial action such as attending the interview on his own without his wife, or transferring the file to a different post. The delay in responding to the letter of October 20, for five months, is clearly less than satisfactory administrative process, but it hardly constitutes procedural unfairness in itself. Having written to cancel the interview, perhaps in anticipation that another would again be scheduled, the applicant made no further enquiry about his application before he received the refusal letter 5 months later.    In these circumstances, any delay that may be attributed to the visa officer did not, in my view, constitute procedural unfairness that would warrant the Court's intervention.

[16]            The applicant submits that the visa officer erred by not warning him about the consequences of failing to attend the interview scheduled for November 2, 1999. However, the letter fixing the November 2 appointment repeated the caution stated in the letters of December 10, 1998 and March 22, 1999, including the sentence "Failure to attend interviews for reasons not deemed to be exceptional may result in refusal of your application". The letter did not contain the additional handwritten caution that had been added to the letter of March 22, 1999.

[17]            The applicant relies on Chang v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 132, for the proposition that notice of sanction clauses is important, and procedural fairness requires notice be given if sanctions are intended to be enforced.

[18]            In my view, the applicant in this case was adequately informed of the consequences of failing to attend the interview of November 2, 1999, as he had been for each of the other scheduled interviews. The fact that a handwritten message added to a previous similar letter was omitted from the final scheduling letter did not diminish the effect of the notice of possible consequences of refusal of the application if the scheduled interview requirement was not met.

Did the visa officer err by failing to consider certain documents alleged to have been submitted by the applicant?

[19]            The applicant submits that the visa officer breached her duty to assess his application, as required by s-s. 9(2) of the Immigration Act, R.S.C. 1985, c. I-2 as amended ("the Act"), which provides:

[20]               It is the undisputed evidence of the applicant that certain documents, such as financial statements of his company and documents in support of his claimed personal net worth, are missing from the tribunal record. The applicant submits that the visa officer failed to consider these documents, and that constitutes a reviewable error. In Chen v. M.C.I., [2000] F.C.J. No. 1299, where Madam Justice Hansen quashed the decision of a visa officer because documents provided by the applicant in that case to the visa officer, which were directly relevant to a determination of the issues before the Court, were destroyed pursuant to the respondent's "thin file policy".

[21]            The respondent submits that the documents said to have been submitted by the applicant in this case were not destroyed by the Embassy. The visa officer stated in cross-examination that the Embassy sometimes sends documents back to applicants when a case is closed, and some documents may have been returned to the applicant when his application was refused. Consequently, the respondent submits that even if the applicant submitted documents which do not appear in the tribunal record, it does not necessarily follow that those documents were not considered when the applicant's application was assessed.

[22]            In my view, there is no evidence that documents submitted were or were not examined by the visa officer. The record does indicate that the applicant was asked to provide additional documents when he appeared for interview and there is no evidence those documents were provided as asked. Thus I am not persuaded that the visa officer failed to consider the documents that had been submitted or that she had received all of the documents requested at the time, March 24, 2000, when she wrote to the applicant refusing his application. Furthermore, while the documents said to be missing from the record might have been relevant to the applicant's status as an "investor" as defined in the Immigration Regulations, 1978 ("the Regulations"), they would not have been relevant to the main issue raised in this matter, namely the exercise of the visa officer's discretion to refuse an application from one who has failed, three times, to meet a directed interview appointment.

[23]            Finally, it is urged that since the obligation of the visa officer to assess the application is set by s-s. 9(2) of the Act, where, as in this case, no interview is conducted, the officer is bound to assess the application on the basis of the documents provided before rendering a decision that the applicant is inadmissible under s-s. 19(2) of the Act. Thus it is said that in this case the visa officer failed in her duty under s-s. 9(2) for in this case the initial determination that an interview was required was made not by a visa officer but by an assistant, and thereafter the visa officer did not assess the application.

[24]            The requirement of an interview is a matter determined by an immigration officer, in this case pursuant to s-s. 22.1(1):

[25]            The evidence of the visa officer is that the interview was required to assess whether the applicant met the requirements of an "investor" as defined in the Regulations, a decision initially made by a case analyst but later confirmed by the visa officer in considering whether to grant a further adjournment after the applicant's failure to attend the scheduled interview. At that time, the visa officer noted and confirmed that an interview was required to determine whether the applicant met the criteria in the investor category.

[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.

Conclusion

[27]            For the reasons here set out an order goes dismissing the application for judicial review.

[28]            For the applicant it was argued that the visa officer did not conduct an appropriate assessment of his application, and that she refused the application not because of his lack of qualifications but because of his failure to attend at the interview. Failure to attend at an interview that is not required by law, it is argued, is not in itself a ground for refusal under s-s. 19(2)(d) of the Act. The applicant submitted the following question for certification under s-s. 83(1) of the Act:

Is a visa officer required to comply with subsection 9(2) of the Immigration Act before she can invoke paragraph 19(2)(d) of the Act on an application for permanent residence?

Written submissions in relation to the proposed question were made following the hearing.

[29]            In my opinion, the facts of this case are that the officer concerned did concur that an interview was required to fully assess the application and confirmed this upon examination of the file before refusing the application. The requirement for an interview was entirely within the discretion of the officer. It was a requirement lawfully made under the Regulations. Having failed to meet that direction the applicant was a member of the class prohibited from entry under s-s. 19(2) of the Act.

[30]            The question proposed is not based on the facts of this case as I find them, and it would therefore not be an appropriate basis for appeal under s. 83.1 of the Act. Even if it were to be answered in the affirmative, that would not result in setting aside the decision which was based on the visa officer's inability to fully assess the application of a person who failed to meet interview appointments, considered necessary for the assessment to be completed in this case.

[31]            In my opinion, the visa officer acted within the scope of her authority under the Act and there is no basis on which the Court should intervene. An order goes dismissing the application

for judicial review. No question is certified pursuant to s-s. 83(1) of the Act.

W. Andrew MacKay

                                                                                                        _____________________________

JUDGE

OTTAWA, Ontario

January 24, 2002