Date: 20080619
Docket: IMM-3475-07
Citation: 2008 FC 767
Ottawa, Ontario, June19,
2008
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
HAMID
GHOFRANI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
In April 2004, the Province of Québec accepted Mr. Ghofrani’s
application to immigrate to the Province as a skilled worker. In such
circumstances, the Minister’s responsibility is limited to an assessment of Mr.
Ghofrani’s admissibility to Canada and, if he is not inadmissible, to issue a
permanent resident visa.
[2]
In the unique circumstances of this case, it is my view that the Respondent’s
decision denying Mr. Ghofrani’s application for permanent resident status must
be set aside. In doing so, I wish to make it clear that, absent the unique
circumstances set out below, the failure of the Applicant to attend a scheduled
interview to satisfy admissibility concerns would otherwise have entitled the
officer to reject the application.
I. BACKGROUND
[3]
Mr. Ghofrani was born September 10, 1971, in Mashad, Iran. He received
a Bachelor’s degree from Amirkubir University in Tehran in 1995. He enrolled
at the Illinois Institute of Technology in Chicago and received a Master’s
degree in 1999. He then enrolled at Frederick Taylor University in California
in a further Master’s program and his counsel asserts that he is currently
enrolled in a Ph.D. program in finance and applied statistics at the University
of California at Santa Barbara. He has also been gainfully employed in the
hi-tech industry during much of the time he has been pursuing his graduate
studies in the U.S.A.
[4]
The history of Mr. Ghofrani’s application is recorded in the
Respondent’s Computer Assisted Immigration Processing System (CAIPS). Unfortunately,
the entries are not completely understandable by counsel or by the Court. Nonetheless,
they disclose the following relevant facts.
·
June 21, 2004 – Application noted and first entered into CAIPS.
·
August 18, 2004 – A visa officer notes that there are a few gaps
in personal history and gaps in residence history. Mr. Ghofrani was asked to provide
the relevant information for the missing time periods. It was also noted that
an updated medical and an FBI check were required. In addition, this visa officer
recorded the following entry in the CAIPS Notes:
NO APPARENT CONCERNS
DOCS APPEAR RELIABLE
RECOMMEND WAIVER OF INTERVIEW
(capitals in original)
·
January 14, 2005 – A visa officer notes that the office has
received the background information for the time periods requested from Mr.
Ghofrani and the other requested information and indicates that the file is
being pulled for a “SECDEC”. There was no explanation provided in the record
or at the hearing as to the meaning of “SECDEC”.
·
On January 19, 2005 - The CAIPS notes indicate that a background
check is required and on January 21, 2005, that request is sent electronically
to “EDE TEAM”.
·
February 11, 2005 – A status inquiry is received from Mr.
Ghofrani and a reply sent stating:
Your application involves
consultation with other visa offices, government departments or agencies. We
regret being unable to provide a specific time frame, but will reply as soon as
possible.
- July 13, 2006 – Mr. Ghofrani
sends a further email inquiring as to the status of this application. He
writes:
My medical exam expired on August
24, 2005. It has been two years since I took my first medical exam. The
background check process has become so lengthy that it has affected everythink
(sic) in my life. I don’t know if I should continue my Phd at UC santa barbara
or not. I have had admission from Concordia University as well and I have
postponed my arrival 3 times so far. I know there is a huge number of files to
process but I have never heard that something takes 2 years after the medical
exam. I would greatly appreciate if you could give me feedback of why my case
has taken so long. I appreciate any help in this regard.
There is nothing on Respondent’s file
indicating that any response was ever given to Mr. Ghofrani.
- October 3,
2006 – There are two entries this date which indicate that the request for
a background check, made in January 2005, was not received or was not acted
upon. No background check as requested in January 2005.
- January 19,
2007 – A visa officer notes “B INTVW REQUIRED FOR SUBJ”. It is of some
significance that after two and a half years with no notable change in the
information concerning the Respondent, a visa officer only now considers
that a background interview of Mr. Ghofrani is required.
- February 23,
2007 – An interview with Mr. Ghofrani is scheduled for April 20, 2007.
- April 16,
2007 – Mr. Ghofrani emails advising that he has an examination scheduled
for the interview day and he requests that the interview be rescheduled.
The same day the visa officer responds rescheduling the interview for June
28, 2007.
- June 5, 2007
– A note states that Mr. Ghofrani will not attend the interview scheduled
for June 28, 2005 and that he has given no reason for not attending.
- July 17,
2007 – The visa officer notes:
PI was scheduled x2 for B interview. He advised
that he was unable to attend April 2007 appt due to his exam schedule. He was
reschduled (sic) for June 2007. Although he advised us that he was unable to
attend, he did not provide a reason. He is resident in the U.S – obtaining a
USNIV is not/not an issue for him therefore.
As he has failed to attend, I cannot be satisfied
that he is not inadmissible, and that he meets the requirements of the Act. As
a result, this application must be refused. N/S refusal ltr sent today. RPRF
not paid, so no refund due.
[5]
On July 17, 2007, the Citizenship and Immigration Canada officer issued
a one page letter decision on the application for permanent residency. The
relevant portion reads as follows:
Your request for a rescheduled
date was granted, and by letter of April 16, 2007, you were required to attend
a interview on June 28, 2007. In that letter you were notified that, if you
failed to attend the interview as scheduled, the examination of your application
would be completed based on the material available in your application. You
failed to appear despite the request made pursuant to subsection 15(1). I have
received no reasonable explanation for your failure to attend.
The letters requesting your attendance
informed you that an examination was required to assess whether you were
inadmissible and whether you met the requirements of the Act. … Following
an examination of the material that was available, I am not satisfied that you
are not inadmissible and that you meet the requirements of the Act. I am
therefore refusing your application pursuant to subsection 11(1).
[emphasis added]
II. JUDICIAL
REVIEW APPLICATION
[6]
The Applicant advances the following three grounds of review:
1.
The visa officer breached the duty of procedural fairness by not
providing the factual and legal basis for the visa refusal;
2.
The visa officer breached the duty of procedural fairness by failing to
advise the Applicant in the notice of interview that he may be inadmissible for
admission to Canada; and
3.
The visa officer breached the duty of procedural fairness in failing to
provide him with the decision to refuse to reschedule the interview prior to
refusing the application.
III. STANDARD
OF REVIEW
[7]
The Applicant asserts that he was denied procedural fairness by the visa
officer. Questions of procedural fairness by a visa officer in this process
are to be reviewed on the standard of correctness: Lak v. Canada
(Minister of Citizenship and Immigration), 2007 FC 350.
IV. ANAYLSIS
[8]
I turn first to the issue of the rescheduling of the interview.
[9]
I find nothing improper in the conduct of the Officer with respect the
circumstances surrounding the rescheduled interview. The Officer provided a
rescheduled date immediately upon being informed that the first date conflicted
with an examination Mr. Ghofrani was taking.
[10]
The Applicant complains that the Officer failed to provide his reasons
for denying the second adjournment. In fact, there is nothing in the record
that indicates that Mr. Ghofrani ever informed the Officer why he was
unavailable on that date. All the record indicates is that he sent back the
appointment form having checked the box next to the phrase “No, I will not
appear as scheduled”.
[11]
Mr. Ghofrani provided an affidavit with his application for judicial
review attesting that he faxed the consulate on June 4, 2007, advising that a
conflict prevented him from attending and requesting that the interview be
rescheduled. No such fax is contained either as an exhibit to the affidavit or
in the official record. Had such a letter been sent one would expect Mr.
Ghofrani to have followed up when no response was received in light of the fact
that his earlier request for a new date received an immediate response. The
Respondent thus acted properly based on the materials before it.
[12]
Similarly, with respect to the second issue, I find that in this
instance there was nothing unfair in the notice of interview failing to advise
Mr. Ghofrani that the purpose of the interview was to assess his admissibility
to Canada. As previously noted, in situations where the Applicant has been
accepted by the Province as a skilled worker, the only role of the federal
authority is to determine admissibility.
[13]
However, it is fair to say that the form letter sent to persons such as
this Applicant is not a model of clarity and transparency in this regard. That
the purpose of the interview relates to issues of admissibility is more likely
to be understood by a lawyer than a potential immigrant, even a skilled one.
The form states the following as the reason for the interview: “an interview
has been scheduled for you at our office to assess your application for
permanent residence in Canada”.
[14]
It is also troubling that the letter rejecting the visa application
arguably misstates the content of the form letter. The rejection letter
states: “The letters requesting your attendance informed you that an
examination was required to assess whether you were inadmissible and whether
you met the requirements of the Act”. As noted, the interview letters make no
reference to the examination being required to assess whether the applicant was
inadmissible – except inferentially as that is the federal authority’s role.
Nonetheless, while the Respondent would be well advised to redraft the
interview letter to reflect the wording used in the rejection letter, it cannot
be said that the wording used created procedural unfairness to the Applicant.
[15]
It was also argued that procedural fairness required that the interview
letter specify the areas of concern with respect to the Applicant’s
admissibility. In this respect, I concur with Justice O’Reilly who in Lehal
v. Canada (Minister of Citizenship and Immigration), 2003 FC
1110 observed:
In some contexts, fairness
requires that a decision-maker give advance warning of a particular concern.
This ensures that an adverse decision is made only on a full understanding of
the facts.
[16]
In Lehal, the applicant was interviewed to ascertain whether or
not he was a genuine student. The questions asked of him were questions a
student should be easily able to answer and Mr. Justice O’Reilly held, in that
context, no advance notice was required.
[17]
The difficulty in Mr. Ghofrani’s case is that we have no indication whatever
as to which of the several possible grounds of inadmissibility concerned the
officer as there is nothing in the interview letter or the CAIPS notes that
reflects the reason why the officer determined that an interview was required to
satisfy his admissibility concerns.
[18]
The interview letter in this case may be contrasted with that in Chiau
v. Canada (Minister of Citizenship and Immigration), [1998] 2
F.C. 642. The visa officer wrote to Mr. Chiau asking him to present himself
for a personal interview and stated that there were reasons to believe that he
may be a person described in paragraph 19(1)(c.2) of the Immigration Act,
R.S.C. 1985, c. I-2, as amended. That provisions provided that members of
organized crime were inadmissible to Canada. The letter specifically provided
“the aim of the interview will be to ascertain if you have maintained any links
with triads or other organized criminal elements”.
[19]
On judicial review Mr. Chiau argued that he had been denied procedural
fairness in that the officer had not been provided with a summary of the
information the officer had and thus had not been told the case against him.
That submission was dismissed by Justice Dubé. In holding that the applicant had
been accorded procedural fairness, he stated at paragraph 15:
In my view, the visa officer
fulfilled all the requirements of procedural fairness in the circumstances. Mr.
Chiau was duly informed in advance, by letter before the interview, of the case
he had to meet. The information provided by visa officer Delisle was sufficient
to enable him to prepare himself for the interview and to disabuse visa officer
Delisle of his concerns that he may be a member of an organization engaged in
criminal activity. The letter refers specifically to paragraph 19(1)(c.2) and
to Mr. Chiau's "links with triads".
[20]
In this case, on the basis of the record one must question why the
officer thought an interview was necessary. Justice Dawson considered the law
with respect to reviewing decisions to require an interview in Qazi v. Canada
(Minister of Citizenship and Immigration), 2006 FC 1177. She did so prior
to the decision of the Supreme Court of Canada in Dunsmuir v. New
Brunswick, 2008 SCC 9, however, in my view her observations and
conclusions remain valid:
[16] …[T]he 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. [emphasis
added]
[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.
[21]
In Qazi, Justice Dawson noted that two
different officers had both determined that further information was required
and that an interview was required. On this basis and on a review of the CAIPS
notes she found that 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”.
[22]
The facts in Mr. Ghofrani’s case differ from that
of Mr. Qazi. The first officer who reviewed Mr. Ghofrani’s application was of
the view that an interview was not required and recommended that it be waived.
Further, unlike Qazi, all documents and information requested by the
Respondent were provided by Mr. Ghofrani in a timely manner. Lastly, there is
no indication in the CAIPS notes at all as to why the second officer was of the
view that an interview was required or anything to indicate why the materials on
file were insufficient to satisfy him that Mr. Ghofrani was not inadmissible to
Canada. This is largely where the
problem arises in this case – the failure of the record provide any explanation
for the decision to require an interview and, accordingly, the absence of any
basis to understand why the officer was not satisfied that Mr. Ghofrani was not
inadmissible to Canada.
[23]
There are many reasons why an applicant for
permanent residency may be inadmissible to Canada. These, broadly speaking, include: the potential burden that the
person may impose on health or social services in Canada (s. 38) or that the
applicant is unable or unwilling to support himself or herself (s. 39), or that
the person poses a danger to the public due to medical condition (s. 38) or
because of previous criminal activity (s. 35 and 36) or because of membership
in an organized crime group (s. 37), or that the applicant is a person
inadmissible on security grounds (s. 34), or the applicant is inadmissible
because of misrepresentation or abuse of the immigration process (s. 40 and
41).
[24]
In this instance, there is nothing in the CAIPS
notes or in the letter requesting an interview or in the letter denying
residency status that sets out directly or from which one may infer the basis on
which the officer questioned whether Mr. Ghofrani was admissible. Accordingly,
there is no basis on which the Applicant or this Court can determine why the
officer made the decision that an interview was necessary. One might assume
that it was the same reason that a background check was requested some two and
one-half years before, however, neither the Applicant nor the Court should be
left to engage in speculation.
[25]
In some cases, such as Qazi, the
reasonableness of the interview request will be evident from the record, as
where documents have been requested but not provided, or where there are
unexplained gaps in the Applicant’s history, or where more than one officer,
reviewing the same material form the same opinion. Here, all requests made to
the Applicant for information and documents were satisfied very promptly.
There were no gaps in history. Two officers reviewed the file and only one
concluded that an interview was necessary.
[26]
I am troubled that an officer felt a background
check was required and asked that one be conducted but the requested check was
never received. The request for a background check was the reason this
application languished for so long. One cannot help but sense that the
perceived need for an interview of the Applicant made in January 2007, had more
to do with the unexplained two and one-half year delay in processing this
application than it did with the real need for a personal interview.
[27]
In light of all of these facts, it is my view that
the decision to request an interview was not reasonable – based on the record, it
appears to have been made capriciously. This conclusion should not be
interpreted to suggest that another officer on a review of the Applicant’s
application cannot determine that a personal interview is required. It does
mean that he or she should indicate in the CAIPS notes or elsewhere the basis
for reaching that decision.
[28]
In this case, had the officer indicated the basis
for the requested interview, or if the officer had stipulated in the letter indicating
that an interview was necessary and the area or areas to be covered in the
interview then one could determine the basis of the decision made and it would
be unlikely that an application for judicial review would have succeeded.
[29]
Further, the Respondent’s decision denying the
application cannot stand.
[30]
As indicated in the rejection letter, once the
Applicant failed to attend the interview, the officer had to assess the
application based on the materials before him. In this case, as indicated previously,
there was nothing in the application or the record of the Respondent, nor any
note of the officer indicating in any way why he was not satisfied that the
Applicant was not inadmissible. While the officer’s decision is entitled to
considerable deference, it is, in my view, an error of law to reject an
applicant for a permanent resident visa on the basis that the officer is not
satisfied that the Applicant is not inadmissible if there is no indication either
directly by way of a statement from the officer, or indirectly from information
in the record, as to the basis of that decision. To allow a decision to stand
in such circumstances would permit officers to make arbitrary and capricious
decisions as to admissibility, without any challenge.
[31]
Accordingly, I am allowing this application for
judicial review and remitting the application back for a redetermination before
another officer. In all of the circumstances, including the fact that this
application has been outstanding, through no fault of the Applicant, for three
and one-half years, I urge the Respondent to give the application priority and,
if an interview is deemed necessary, that it attempt to have it done at a
location closer to the Applicant’s current residence, if possible.
[32]
It was agreed during the hearing that the reasons
for judgment would be provided to counsel before the issuance of a formal
judgment so as to give them an opportunity to propose questions to be
certified. Both indicated to the Court that no questions were certifiable. I
agree.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1. This
application is allowed and the Applicant’s application for a permanent resident
visa is to be determined by a different visa officer in keeping with the Reasons
for Judgment; and
2. No question
is certified.
“Russel W. Zinn”
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