[1] The applicants seek judicial review of, and an order setting aside, the decision of a visa officer at the Canadian Consulate General in New York whereby their application for permanent residence in Canada was refused. The decision was by letter dated September 3, 2000, apparently dated in error but probably intended to be dated October 3, 2000.

[2] The principal applicant, Dr. Qamar Abbas Khan is said to be the owner and operator of a nursing home in Pakistan and in this she was assisted by her physician husband, Dr. Mohammad Abbas Khan. The remaining applicants are their four dependent children. Dr. Qamar Abbas Khan entered into an investor agreement under a program licensed by the government of Canada and Quebec, and her immigration application was made in the investor category, with her family members as dependents.

[3] By s-s. 2(1) of the Immigration Regulations, 1978 as applicable at the time (comparable but somewhat different requirements now are applicable pursuant to the Immigration and Refugee Protection Regulations, Part 6, Division 2):

"investor" means an immigrant who

(a) has successfully operated, controlled or directed a business,

(b) indicates to the Minister, in writing, that they intend to make an investment or have made an investment, and

« _investisseur_ » Immigrant qui répond aux critères suivants:

a) il a exploité, contrôlé ou dirigé avec succès une entreprise;

b) il a indiqué par écrit au ministre qu'il a fait ou a l'intention de faire un placement;

c) il possède un avoir net d'au moins 800 000_$, accumulé par ses propres efforts.

[4] The applicant and her husband were interviewed at the Consulate General in New York on September 26, 2000. Following the interview the visa officer's letter refused the application, on the basis that the principal applicant did not demonstrate that she was an investor as defined in the Regulations. The letter said, in part:

At interview, you were unable to satisfy me that you had operated, controlled or directed a profitable business and that your assets had been made by your own endeavour.

The letter also included the following determinations by the visa officer:

. . . You were unable or unwilling to provide proof of ownership for this business, nor the balance sheets or accountant's report, income tax returns, any document that indicated that this business belonged to you and that it was a prosperous business.

. . .

. . . You had outdated evaluations of properties that you indicate you own, but you did not provide proof of ownership of these properties.

[5] The applicants received a call-in notice dated June 26, 2000 for the interview held in New York on September 26, 2000. That notice indicated various instructions including the following:

What if I am missing some documents?

You must come to the interview, anyway. The visa officer will decide whether additional documents are required, and give you instructions on submitting them.

[6] In reliance on that instruction, the applicants claim that the visa officer failed to provide natural justice or fairness to the applicants by making a negative decision without providing an opportunity for them to submit additional documents not provided at the interview. The submissions on behalf of the applicants acknowledge that they appeared at their interview with some but not all of the documents required to establish the principal applicant's qualifications as an investor under the Regulations. Nevertheless, it is claimed that they can rely on the instruction included in the call-in notice, contending that in fairness the visa officer ought to have provided opportunity to file documents following the interview.

[7] The duty of fairness, an essential element in administrative decision making, in any case depends on the circumstances and the context in which it arises. The applicant relies upon the decision of the Court of Appeal in Muliadi v. Canada (Minister of Employment and Immigration) [1986] 2 F.C. 205, 66 N.R. 8 (C.A.). In my opinion, that decision can be distinguished in that the failure to ensure fairness there was found in the visa officer's refusal of an application based on an assessment of a provincial board which was unknown to the applicant. In this case, there is no reliance upon extrinsic evidence unknown to the applicant.

[8] Moreover, in this case there were various instructions included in the call-in notice sent to the applicants including:

5) Please also remember to bring ALL of your original documents unless they have been submitted already.

. . .

What do I have to bring?

You must bring all of the following documents that apply to your case

Civil Documents

. . . [a number listed]

Qualification Documents

Proof of your education, training or apprenticeship . . .

Proof of employment for the last 10 years, . . .

Income tax returns for each of the three previous years.

. . .

Other documents

Proof of all assets available for your settlement in Canada. All bank accounts must be demonstrated by bank statements showing all account activity during the six months immediately preceding the interview. Statements of current balance only are not acceptable. You will be required to account for the source of any funds other than salary and interest income.

. . .

Important notes about documents

The documents must be originals. Do not laminate your documents. The onus is upon you to prove every fact required to demonstrate that you are qualified for immigration. Visa officers usually will not accept laminated documents or copies of documents as proof of any fact without corroborating evidence.

. . .

[9] For the respondent, reference is made to the visa officer's CAIPS notes, said to have been made during the course of the interview on September 26, 2000. The notes are not helpful in this case. Though they are part of the record of the visa officer's decision, there is no affidavit of the officer that would introduce the notes as evidence.

[10] Apart from those notes, in my opinion the circumstances in this case, including the statutory obligation on the applicant to establish that she and her dependants are qualified for admission to Canada in accord with the Act and the Regulations relating to investors, and all of the instructions sent with the call-in notice to the applicants, do not warrant a conclusion that the visa officer failed to meet her obligation to fairly consider the application by the principal applicant. The officer had no obligation, in the circumstances of this case, to provide an opportunity for the applicants to bolster their application by submission of documents that in the normal course were required to be submitted before or at the interview.

Conclusion

[11] The application for judicial review is dismissed.

[12] No question was submitted for consideration pursuant to paragraph 74(d) of the Immigration and Refugee Protection Act as a serious question of general importance. No question is certified.

"W. Andrew MacKay"

J.F.C.C.

Ottawa, Ontario

January 22, 2003

FEDERAL COURT OF CANADA

TRIAL DIVISION

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: IMM-5941-00

STYLE OF CAUSE: QAMAR ABBAS KHAN ET AL.

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING: TORONTO, ONTARIO

DATE OF HEARING: TUESDAY, OCTOBER 8, 2002

REASONS FOR ORDER: MacKay J.

DATED: WEDNESDAY, JANUARY 22, 2003

APPEARANCES:

Max Berger

FOR THE APPLICANTS

Deborah Drukarsh

FOR THE RESPONDENT

SOLICITORS OF RECORD:

Max Berger

1033 Bay Street

Suite 207

Toronto, Ontario

M4P 1L3

Telephone No.: 416-969-9263

Fax No.: 416-969-9098

FOR THE APPLICANTS

Department of Justice

Suite 3400, Box 36, The Exchange Tower

130 King Street West

Toronto, Ontario

M5X 1K6

Telephone No.: 416-952-4772

Fax No.: 416-954-8982

FOR THE RESPONDENT

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Khan v. Canada (Minister of Citizenship and Immigration), 2003 FCT 58

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2003 FCT 58