Date: 20080208
Docket: IMM-705-07
Citation: 2008 FC 170
Ottawa, Ontario, this 8th day of February, 2008
PRESENT: The Honourable Barry Strayer, Deputy Judge
BETWEEN:
TARUN
CHADHA
Applicant
and
MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1]
This
is an application for judicial review of a decision of a visa officer conveyed
to the Applicant by a letter of December 12, 2007 wherein the Applicant’s
application for a permanent resident visa was refused.
FACTS
[2]
The
Applicant is a citizen of India. On January 2, 2004, his Immigration Consultant
in Toronto sent a letter on his behalf to the Canadian Consulate General in Buffalo applying for
a permanent resident visa. Presumably application was made there because he
couldn’t apply within Canada. The letter described the Applicant as
“currently working in Canada and acquiring valuable Canadian experience … .” On
October 5, 2004, the Canadian Consulate General in Buffalo replied
saying that it had completed the initial assessment of the application and
“expect to finalize your application without a personal interview”. That letter
requested further documentation from the Applicant. On August 10, 2005, the
Consulate General sent a further letter requesting more information. On
September 8, 2005, the Applicant’s new counsel sent further information. On
March 6, 2006, the Consulate General advised the Applicant that an interview
would be required and the date was set for December 5, 2006. On March 28, 2006,
counsel sent more information and asked that the interview be waived. However,
on August 10, 2006, the Consulate General sent the Applicant formal notice of
the date and place of the interview in Buffalo, as
previously fixed. According to the Applicant’s Record in this proceeding, a
further letter was sent by Applicant’s counsel to the Consulate General on
August 17, 2006 referring to the interview notice. He advised that the
Applicant and his wife had previously been refused U.S. visitor visas
and it was therefore unlikely that the Applicant could attend an interview in Buffalo. He
requested that instead the file be transferred to New Delhi as the
Applicant and his wife were returning there. This letter is not in the Tribunal
Record nor do the CAIP’s notes record receipt by the Consulate General. On
August 22, 2006 the Consulate General wrote to counsel making no reference to
the missing letter and advising that the Applicant still had his interview
scheduled for December 5, 2006. It indicated to him that he could choose either
to attend the scheduled interview, or withdraw the application from the office
in Buffalo and re-apply
at another office. It warned him that failure to attend the interview might
result in the refusal of the application. On November 23, 2006, some two months
after the last letter from the Consulate General stating the two options of
attending the interview or withdrawing the application and applying elsewhere,
counsel sent the Consulate General an e-mail once again asking that the
interview be waived and giving various reasons why he thought the visa
application should be approved. No mention was made of having the file
transferred. On November 27, 2006, the Consulate General replied to that e-mail
stating that a selection interview continued to be warranted and saying that they
could not intercede with the U.S. authorities to assist the Applicant in coming
to Buffalo. The
Applicant did not attend the scheduled interview. On December 12, 2006, the visa
officer wrote to him saying that she was not satisfied that he met the
requirements of section 75(2) of the Immigration and Refugee Protection Act
and that his application for a permanent residence visa was therefore refused.
[3]
The
Applicant now seeks judicial review of that decision. The ground alleged for
judicial review is that of denial of fairness, it being argued that fairness
was denied by the visa officer insisting on an interview in Buffalo when she
knew that the Applicant could not attend at that visa post.
ISSUES
[4]
The
issues then are:
1.
Was
it unfair for the visa officer to insist on an interview when she knew the
Applicant could not attend in Buffalo?
2.
Was
there an unfair refusal of an application to have the file transferred to an
office elsewhere?
ANALYSIS
Standard of
Review
[5]
I
am not being asked to review the decision to refuse the visa but rather the
fairness of the procedure followed by the visa officer. As this is a question
of fairness, the usual pragmatic and functional analysis need not be made: Canadian
Union of Public Employees (C.U.P.E.) v. Ontario (Minister of
Labour),
[2003] 1 S.C.R. 539 at paras. 101-03. In matters of fairness, while courts must
recognize the basic right of tribunals to choose their own procedure, a court
owes little deference to a tribunal in its judgment of whether the procedure in
a particular case was fair.
Was there a
denial of fairness in convoking the Buffalo interview?
[6]
It
has been variously said that a decision by a visa officer as to the place of
the interview is not of itself judicially reviewable: Dotsenko v. Canada (Minister of
Citizenship & Immigration), [2000] F.C.J. No. 789, and that the place
of an interview is at the discretion of the visa officer: Ponomarenko v.
Canada (Minister of Citizenship & Immigration), [2003] F.C.J. No. 374,
para. 11 (and authorities referred to therein). In the particular circumstances
of this case, however, I think it is open to the court to intervene if the
exercise of that discretion in the circumstances created unfairness. The
Applicant here argues that it was inherently unfair for the visa officer to
insist on having an interview in Buffalo when she knew the
Applicant could not attend.
[7]
Looking
at the sequence of events I am not satisfied that the visa officer acted
unfairly. In the first place, the Applicant chose to make his application in Buffalo
by mail from Canada. He was, of
course, obliged to make his permanent residence visa application from outside
of Canada. He could have made it in India, a country of which he
is a citizen, but he did not. Instead, he made the application in the United
States,
a country to which he had no right of entry and without knowing whether he
could obtain a visa to visit there. As early as March, 2006, he was alerted
that an interview had been set for December 5, 2006, some nine months later.
His counsel that same month started requesting that the interview be waived, but
the appointment for the interview was confirmed by the Consulate by letter on
August 10, 2006, and it was confirmed again by a further letter of August 22,
2006 that the interview would still be required but giving him the option of
withdrawing his application before it was refused and applying at another
office. The only response to this came two months later in a letter from the
Applicant’s lawyer once again asking that the interview be waived. Once more,
on November 27, 2006, the visa officer confirmed that the interview would be
required on December 5, 2006. So the Applicant had ample warning that his
failure to attend the interview at the Buffalo office – at
which he had chosen to make his application – could result in its dismissal.
The option of withdrawing his application before refusal and applying elsewhere
was put to him over three months before the scheduled interview. Subject to
what I will say below concerning the possible transfer of the file, I do not
think there was much more that the visa officer could have done in the
circumstances once she concluded, as she was entitled to do, that an interview
was needed.
Was
non-transfer of the file unfair?
[8]
Clearly,
a visa officer is not obliged to take the initiative to transfer a file where
such is not requested. Normally files are processed at the office where the
application is made. The key question here is whether there was a clear request
for the transfer of this file to New Delhi as the Applicant
states. The only evidence that such a request was made rests in a copy of a
letter bearing the date August 17, 2006 from the Applicant’s counsel to the
Consulate General, included in the Applicant’s appeal book. It is the position
of the Respondent that such a letter was never received by the Consulate
General. The letter does not appear in the Tribunal Record nor is there any
affidavit on file as to its having been sent. Nor did Applicant’s counsel ever
repeat the request or inquire as to what the Consulate was going to do in
response to his alleged request of August 17, 2006. In his next communication
of November 23, 2006, nothing further was said about the Applicant going to India (the
original rationale for the alleged request of a file transfer). I am therefore
not satisfied that such a request was ever made and the visa officer cannot be
faulted for refusing a request which was never received by her office.
[9]
I
remain somewhat disturbed by this case because while the conduct of officials
met the requirements of the law, they seemed to show little initiative in
trying to find a reasonable solution to the impasse created by the interview
being scheduled in a country the proposed interviewee could not enter. It is
apparent from some of the decided cases in this Court that visa officers do
arrange for interviews to be held in offices other than where the application is
originally filed. Had the Applicant made a clear and reasoned request for the
interview to be held in the Applicant’s own country, for example, this might
well have been done. No such request was made and the visa officer was not
obliged to take the initiative and propose it. However, she did propose one
option – the withdrawal of the application and the submission of a new
application elsewhere – and it is not clear to me why if that suggestion could
be made (a suggestion which if followed would have resulted in further years of
delay for the Applicant) the possibility of simply arranging an interview at a
different office could not have been suggested.
DISPOSITION
[10]
I
will therefore dismiss the application for judicial review. Counsel had no
suggested questions for certification and none will be certified.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1.
The
application for judicial review of the visa officer’s decision of December 12,
2006, refusing a permanent residence visa for the Applicant be dismissed.
“Barry
L. Strayer”
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