Date: 20070305
Docket: IMM-1610-06
Citation: 2007 FC 247
Ottawa, Ontario, March 5, 2007
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
SRINIVAS KUMAR VELLANKI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS
FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review brought by Srinivas Kumar Vellanki
challenging a decision by a Visa Officer, denying his application for a
permanent resident visa.
Background
[2]
On
March 1, 2000 Mr. Vellanki submitted a completed application for a permanent
resident visa to the Canadian Embassy in Buenos Aires. He was
seeking to come to Canada from India as a member of the Skilled
Worker Class, specifically as a Marketing Consultant. Despite strong
indications that Mr. Vellanki qualified for a visa, his application was denied
by letter dated
January 6, 2006, signed by Juana
Leschziner. That denial was based on Mr. Vellanki’s failure to provide
requested supporting documentation by a deadline imposed by Ms. Leschziner on
October 19, 2005.
[3]
A
brief chronology of events is helpful to understand the basis of the decision
under review.
·
March 1, 2000
- Application submitted on behalf of Mr. Vellanki to the
Canadian Embassy in Buenos
Aires, Argentina.
·
May 29, 2000
- Application acknowledged by the Department.
·
May 10,
2001 - Mr. Vellanki interviewed in Buenos Aires and further information requested
concerning his Canadian sister.
·
May 16,
2001 - Mr. Vellanki submits information in proof of
relationship to his Canadian sister.
·
June 20,
2001 - Mr. Vellanki’s counsel requests information regarding
the status of the application.
·
July 19,
2001 - Department advises that verification of Mr.
Vellanki’s academic and employment record is underway in New Delhi.
·
July 10,
2002 - Department advises that verification of academic and
employment record is incomplete and further information and money to obtain
records is required.
·
August 12,
2002 - Mr. Vellanki’s counsel provides information requested by
the Department and confirms payment of the required funds.
·
September
23, 2002 - Mr. Vellanki’s counsel requests an update on status of the
application.
·
October 4,
2002 - Department requests further information to verify Mr.
Vellanki’s employment experience.
·
November
7, 2002 - Mr. Vellanki’s counsel provides the requested employment
information to the Department.
·
March 31,
2003 - Department requests an updated Background Declaration
(Form IMM8) and updated police certificate.
·
April 14,
2003 - Department requests further contact information for Mr.
Vellanki’s employer to be provided within three (3) months.
·
June 13,
2003 - Mr. Vellanki’s counsel provides updated Background
Declaration (IMM8) and requests clarification of Indian police clearance
requirement.
·
October 3,
2003 - Department again requests contact information for Mr.
Vellanki’s current employer and advises that this is a “last reminder”.
·
October
16, 2003 - Mr. Vellanki’s counsel confirms that the employer’s
contact information as previously provided remains valid.
·
March 12, 2004
- Mr. Vellanki’s counsel requests a status report from the
Department and notes that the application has then been pending for three
years.
·
March 31,
2004 - Department advises that verification of Mr. Vellanki’s
employment was still underway in its Delhi
office.
·
July 6,
2005 - Department requests a partially updated Background
Declaration (Form 8 – Schedule 1), an updated work certificate and 4 recent
photos to be provided within two (2) months (i.e. before September 6, 2005).
·
September
23, 2005 - Mr. Vellanki’s counsel requests an additional 60 days to
provide the information required by the Department.
·
October 19,
2005 - Department again requests updated documentation and advises
that this is a “last reminder”. The Department’s letter also states that “if
we do not receive the requested documents before December 30, 2005, we shall
assume that you are no longer interested in pursuing your application and your
application will be refused and the file closed”.
·
January 6,
2006 - Department writes to Mr. Vellanki through his counsel
refusing his application because of the failure to provide the documents
requested by the deadline of December 30, 2005.
·
January
11, 2006 - After returning to work following an illness and
Christmas holidays the Immigration law clerk for Mr. Vellanki’s counsel checks
the status of the application on the internet and confirms that it is still “in
process”.
·
January
16, 2006 - Mr. Vellanki’s counsel submits updated documents by fax
and courier but the Department maintains its decision to refuse Mr. Vellanki’s visa
application.
[4]
The
record indicates that in 2005 the Department abandoned its efforts to verify Mr.
Vellanki’s employment and educational references through its Delhi office and
concluded that he met the selection requirements as a Skilled Worker. What was
left was an assessment of his admissibility to Canada on security
and medical grounds. The Department’s request on July 6, 2005 for an updated
Form 8 and current photos was directly related to those outstanding issues.
Issues
[5]
(a) What
is the standard of review for the Visa Officer’s decision to refuse a visa to
Mr. Vellanki?
(b)
Did
the Visa Officer err by refusing Mr. Vellanki’s application for the reasons
given?
Standard of Review
[6]
The
issues raised on behalf of Mr. Vellanki on this application have all been
characterized in terms of procedural fairness or statutory interpretation and,
as such, must be resolved on a standard of correctness: Kniazeva v. Canada
(Minister of Citizenship and Immigration), [2006] F.C.J. No. 336, 2006 F.C.
268.
Analysis
[7]
It
is apparent from the record that Mr. Vellanki’s application was caught up in
somewhat of a bureaucratic quagmire or, as his counsel, aptly described it, a
“5 year odyssey”. Some of this delay is understandable but it is difficult to
justify an approval process of such a duration particularly where, as here, Mr.
Vellanki apparently met the selection requirements for entry to Canada as a Skilled
Worker. What was left for determination in this case was Mr. Vellanki’s
admissibility on security and medical grounds and it was with respect to those
matters that the Department had requested updated information for the period between
2003 and 2005. Although counsel for Mr. Vellanki is probably correct that the
application could have been processed without this information, the fact
remains that the Visa Officer requested updates and had a reasonable basis for
doing so. This is the type of decision deserving of a high degree of deference:
see Kniazeva v. Canada (Minister of
Citizenship and Immigration), above, at para. 15.
[8]
The
principal argument advanced on behalf of Mr. Vellanki is that the Visa
Officer’s decision to refuse his application was inadequate because it failed,
on its face, to conform with the discretion to deny a visa conferred by section
11(1) of the Immigration and Refugee Protection Act S.C. 2001, c.27 (IRPA)
and because it provided reasons that were not clear and precise. In
particular, it was argued that the decision letter failed to explain why the
Visa Officer was “not satisfied” that Mr. Vellanki was not inadmissible.
Reliance was also placed on the language of the Department’s “final reminder”
letter of October 19, 2005 which stated that a failure to provide the requested
documents would be taken as a lack of interest by Mr. Vellanki in pursuing the
application and would lead to a refusal decision. It is argued that a supposed
“lack of interest” is not a recognized ground for denying a visa application.
[9]
Notwithstanding
the creative arguments advanced on behalf of Mr. Vellanki, I can see nothing in
the decision letter which takes it outside of the legislative mandate. Section
11(1) of the IRPA indicates that a foreign national must establish to the
satisfaction of the Visa Officer that he is not inadmissible. This must be
read together with section 16 of the IRPA which requires a visa applicant to
produce all relevant evidence and documents that the officer reasonably
requires, including photographs. The refusal decision in this case turned
precisely on Mr. Vellanki’s failure to provide the information required by the
Visa Officer and the decision letter clearly conveys that rationale. I take
the language used by the Visa Officer in the earlier “final reminder” letter to
be merely an informal expression of the same underlying point and it gave clear
notice that a failure to respond would lead to a refusal decision. In simple
terms the Visa Officer was “not satisfied” of Mr. Vellanki’s admissibility
because he had not provided the information the officer reasonably required to
be satisfied and to complete the remainder of her assessment.
[10]
It
was also contended that the decision to strictly enforce the stipulated
deadline for production of documents was “unfair” when considered against the
Department’s rather languid handling of Mr. Vellanki’s application. Although I
agree with Mr. Vellanki’s counsel that this apparent double-standard might meet
a populist definition of “unfair”, I do not believe that it violates any
principle of natural justice or breaches a duty of procedural fairness. The
letters from the Department made it abundantly clear to Mr. Vellanki that his
application would be refused if the required information was not provided by
the stipulated deadline. He was first advised of this on July 6, 2005 and then
received an extension to December 30, 2005. He had almost six (6) months to
fulfill tasks that could have been completed within a few days at most and the
failure to do so cannot be attributed to any failing on the part of the
Department. The refusal decision resulted solely from Mr. Vellanki’s failure
to provide the information necessary to process his application.
[11]
Although
there was a subsequent delay of a few days in recording the refusal decision on
the Department’s internet site, that representation did not cause Mr. Vellanki
or his counsel to act or to fail to act in some detrimental way. As soon as it
was discovered that the deadline had been missed corrective action was taken
but, by then, the refusal decision had been finalized. Absent some measure of
detrimental reliance, I cannot find that Mr. Vellanki’s reasonable expectations
had been defeated by this slight delay in posting the decision on the Departmental
website. On this point the decision in Mumin v. Canada (MCI) (1996), 35
Imm. L.R. (2d) 217, [1996] F.C.J. No. 611 (T.D.) is distinguishable. There the
applicant relied upon erroneous or incomplete information provided by the
Department and thereby missed a filing deadline. In this case the deadline had
already passed and the decision was made when Mr. Vellanki’s counsel reviewed
the status of the application on the internet and, therefore, no detrimental
reliance arises.
[12]
However
discouraging this process has been for Mr. Vellanki, he does have the option of
making a fresh application for a visa and I would encourage him to do so.
Given the Department’s somewhat lethargic efforts in handling the previous
application, one would hope that any new application by Mr. Vellanki would be
processed with some degree of urgency and dispatch.
[13]
This
application is dismissed. Neither party proposed a certified question and no
issue of general importance arises from this decision.
JUDGMENT
THIS COURT ADJUDGES that
this application is dismissed.
"R.
L. Barnes"
Email this Content