Voskanova v. Canada (Minister of Citizenship and Immigration), docket IMM-2736-98

Date: 19990401

Docket: IMM-2736-98

BETWEEN:

                            

     DIANA VOSKANOVA

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

NADON J.:

[1]      This is an application for judicial review of a decision by Denise Lamoureux, Visa Officer at the Canadian Consulate General in Buffalo, New York dated May 1, 1998, refusing the applicant"s application for permanent residence in Canada ("application"). This includes, by necessary implication, the Visa Officer"s decision to deny the applicant"s request to transfer her file to Detroit.

            

[2]      The applicant is a Russian Citizen whose permanent home address is in Russia. On April 24, 1997, her application for permanent residence in Canada was received at the Regional Processing Centre in Buffalo, New York ("RPC") which does the initial processing of all applications for permanent residence from individuals who wish to be interviewed in the United States.

[3]      On June 26, 1997, the applicant"s application was paper-screened at the RPC with reference to her stated intended occupation in Canada of chef-cook, CCDO 6121-11. The screening officer concluded that an interview was necessary in order to assess the applicant"s qualifications, experience, education, language ability and settlement potential.

[4]      As the applicant did not indicate in her application a preference to be interviewed at any particular satellite office, the RPC determined that the interview would take place at the Consulate in New York City where the file was transferred on January 15, 1998. A letter dated February 20, 1998, was sent to the applicant inviting her to an interview at the Consulate in New York on May 1, 1998 at 8:30 a.m.. A request for file transfer form and fee schedule were included with the convocation letter. The letter specifically warned that failure to attend the interview could result in the applicant"s application being refused. The letter stated that any request for transfer of files had to be made at least two weeks prior to the interview date, otherwise the application could be refused:

THIS WILL BE YOUR ONLY CHANCE TO APPEAR FOR INTERVIEW IN THIS OFFICE:

If you are unable to attend, any request to transfer your file must be made at least 2 weeks prior to your interview date. Otherwise, your application may be refused.

[5]      On April 24, 1998, counsel for the applicant requested the Director of Operations Co-ordination at Citizenship and Immigration Canada in Ottawa to transfer three files, including the present file, from New York to Detroit. When the Visa Officer made the impugned decision, she was not aware of this letter.

[6]      On April 30, 1998, the New York Consulate received a letter from counsel for the applicant advising that his client would not be appearing for her interview on May 1, 1998 and requesting that her file, along with three others, be transferred to Detroit. No explanation was provided by counsel in his letter. On May 1, 1998, the applicant did not appear for her interview.

[7]      By letter dated May 1, 1998, the Visa Officer informed the applicant of her decision to refuse her application for permanent residence. The letter reads as follows:

This refers to your application for permanent residence in Canada.

I am unable to approve your application because you fall within an inadmissible class described in Paragraph 19(2)(d) of the Immigration Act which reads:

"No immigration ... shall be granted admission if he is a member of any of the following classes ... persons who cannot or do not fulfil or comply with any of the conditions or requirements of this Act or the Regulations or any orders or directions lawfully made or given under this Act or the Regulations."

You belong to this class of persons as a result of your failure to comply with paragraph 22.1(1) of the Immigration Regulations which states that:

"An immigration officer may require that an applicant for landing who is in Canada, or an applicant for an immigrant visa, and dependants of the applicant, if any, be interviewed for the purpose of assessing the application."

Specifically, you have failed to attend your scheduled immigration selection interview on May 1, 1998.

     This decision is final. This office does not review final decisions. We will neither acknowledge nor respond to requests for review or submissions of new information from you or your representative. If you wish to do so, you may submit a new application and a new processing fee.

[8]      I must decide two issues. Firstly, whether the Visa Officer, in the exercise of her discretion, could refuse to transfer the applicant"s file from New York to Detroit. Secondly, whether the Visa Officer could refuse the applicant"s application for permanent residence on the ground that she had failed to attend at her scheduled interview on May 1, 1998.

[9]      With respect to the first issue, the applicant submits that the Visa Officer had no discretion whatsoever to refuse to transfer her file to Detroit. The applicant submits that by reason of Item 15 of the Immigration Act Fees Regulations, SOR/97-22, am. SOR/97-263, the Visa Officer had no discretion in the matter. The applicant argues that Item 15 provides that, upon requesting a transfer and paying $100.00, a file must be transferred from "one immigration point of service to another". Item 15 is listed under the heading "General Fees for Service" and provides the following:

15. Processing a duly completed application for transfer of the applicant"s immigration file from one immigration point of service to another and transferring the file, or a duly completed application for immigration statistical data that have not been published by the Department of Citizenship and Immigration and access to the Department"s database to respond to each application.

[10]      The applicant appears to suggest that, if an applicant pays the required fee, he can have his file transferred whenever he chooses. In my view, item 15 is of no help to the applicant. It simply prescribes a fee and begs the question of whether the Visa Officer has a discretion to refuse a transfer request. It is worth repeating that the letter inviting the applicant to her interview made it clear that requests for transfer had to be made at least two weeks prior to the interview date. In the present instance, counsel for the applicant wrote to the Deputy Program Manager, Immigration of the Canadian Consulate General in New York on April 30, 1998, in the following terms:

This letter is to confirm my April 24th notice that Ms Voskanova will not be attending the interview, slated for May 1st. She has also requested that her file be transferred to the Canadian Consulate General at Detroit.

I would also be obliged if you would also transfer to Detroit the following files:

BO357-91943      "      ZHENG Cheng      "      3 June 1998

BO358-20702      "      HUANG Minqin      "      3 June 1998

BO358-19066      "      ZHANG Xuebin      "      14 July 1998.

     Thank you for your anticipated prompt attention to this matter.

[11]      As appears from counsel"s letter, no explanation whatsoever was given with respect to the applicant"s non-attendance.

[12]      There cannot be any doubt that administrative decision makers may, as a matter of sound administrative practice, and without any specific statutory authority for doing so, issue guidelines and other non-binding instruments. The respondent referred me to the decision of the Ontario Court of Appeal in Ainsley Financial Corporation et al. v. Ontario Securities Commission et al. (1995) 21 O.R. (3d) 105 (CA) where Doherty J.A. says the following at pages108-9:

Non-statutory instruments, like guidelines, are not necessarily issued pursuant to any statutory grant of the power to issue such instruments. Rather, they are an administrative tool available to the regulator so that it can exercise its statutory authority and fulfil its regulatory mandate in a fairer, more open and more efficient manner. While there may be considerable merit in providing for resort to non-statutory instruments in the regulator"s enabling statute, such a provision is not a prerequisite for the use of those instruments by the regulator.

...

To the extent that the reasons of Blair J. may be read as requiring some statutory authority for the issuing of such guidelines, I must, with respect, disagree with those reasons. Nor, in my view, are pronouncements which are true guidelines rendered invalid merely because they regulate, in the broadest sense, the conduct of those at whom they are directed. Any pronouncement by a regulator will impact on the conduct of the regulated. A guideline remains a guideline even if those affected by it change their practice to conform with the guideline.

[13]      The policy in place here was to require those seeking the transfer of their files to make their request at least two weeks prior to the date of their interview. Failing a timely request, the application could be refused.

[14]      The applicant did not make her request for transfer in a timely manner. The interview was scheduled for May 1 and the request for transfer was received on April 30, 1998. As I have just indicated, the applicant did not provide an explanation for either her non-attendance or her request to transfer the file from New York to Detroit. Had an explanation been provided, the Visa Officer would have had to consider the explanation and decide whether that explanation was reasonable and, if so, whether the interview in New York ought to be postponed. The same rationale also applies to the applicant"s request to have her file transferred to Detroit. It should perhaps be stated that it is not up to an applicant to decide where he or she will be interviewed. That decision is made by a Visa Officer. I would suspect that Visa Officers make a genuine attempt to accommodate applicants in respect of the place of interview. It is only fair that they do so considering that a chosen place of interview might force, for example, an applicant to incur considerable costs in getting there. The interview might be conducted at a place more convenient to the applicant and thus, where possible, all efforts should be made by the Visa Officers to accommodate applicants. In the end, however, the place of interview must remain at the discretion of a Visa Officer.

[15]      Where, as here, an applicant requests that her file be transferred and advises that she will not attend an interview scheduled for the next day, I see no reason why that request should be considered when the applicant does not provide any explanation for the non-attendance and the request for transfer. In my view, the decision refusing to transfer the applicant"s file from New York to Detroit is one that the Visa Officer could make in the exercise of her discretion. I have not been persuaded that the Visa Officer failed to exercise her discretion properly.

[16]      I now turn to the second issue. Paragraph 19(2)(d) of the Immigration Act, R.S.C. 1985, ch. I-2, and subsection 22.1(1) and paragraph 22.1(3)(a) of the Immigration Regulations, 1978, SOR/78-172, are relevant and they provide as follows:

Immigration Act 19. (2) No immigrant and, except as provided in subsection (3), no visitor shall be granted admission if the immigrant or visitor is a member of any of the following classes:

Loi sur l"immigration (2) Appartiennent à une catégorie non admissible les immigrants et, sous réserve du paragraphe (3), les visiteurs qui_:

...

...

(d) persons who cannot or do not fulfil or comply with any of the conditions or requirements of this Act or the regulations or any orders or directions lawfully made or given under this Act or the regulations.

d) soit ne se conforment pas aux conditions prévues à la présente loi et à ses règlements ou aux mesures ou instructions qui en procèdent, soit ne peuvent le faire.

Immigration Regulations, 1978 22.1 (1) An immigration officer may require that an applicant for landing who is in Canada, or an applicant for an immigrant visa, and dependants of the applicant, if any, be interviewed for the purpose of assessing the application.

Règlements sur l"immigration de 1978 22.1 (1) L'agent d'immigration peut exiger de toute personne au Canada qui demande le droit d'établissement ou de toute personne qui demande un visa d'immigrant, ainsi que des personnes à leur charge, le cas échéant, qu'elles subissent une entrevue aux fins de l'examen de la demande.

...

...

(3) An interview referred to in subsection (1) or (2) shall be conducted

(3) L'entrevue visée aux paragraphes (1) ou (2) est menée :

(a) where the application is submitted to a visa office, in that visa office or at any other appropriate location specified by a visa officer; or

a) dans le cas d'une demande présentée à un bureau des visas, à ce bureau ou à tout autre lieu approprié indiqué par l'agent des visas;

[17]      The applicant submits that the Visa Officer fettered her discretion by refusing the applicant"s application on the sole ground that she did not attend her interview in New York. The applicant further submits that the Visa Officer failed to consider the merits of her application.

[18]      The applicant"s file was reviewed by the screening officer at the RPC in Buffalo. Following the review, the screening officer determined that an interview was required. The CAIPS note reveal the following entry made by the screening officer:

INTVW REQ"D

REASON FOR INTVW: VERIFICATION OF EDUC/EXPER/QUALIFICATIONS/LANG ABILITY AND SETTLEMENT POTENTIAL

SUBJ HAS HAD NO EXPER/EDUC IN AN ENG/FR ENVIRONMENT

SUBJ"S QUALIFICATIONS/EXPER/EDUC HAVE ALL BEEN OBTAINED OFF-SHORE

TRANSFERABILITY OF EXPER MAY BE QUESTIONABLE

SUBJ APPEARS TO HAVE HAD NO FORMAL LANG EDUC.

LTR OF REF PROVIDES NO OUTLINE OF DUTIES TO CLARIFY EXPER.

INTVW AT BUF

[19]      It is as a result of the screening officer"s above concerns that the applicant was requested to attend at an interview in New York on May 1, 1998. In paragraph 7 of her affidavit dated July 24, 1998, the Visa Officer discusses her decision to refuse the applicant"s application for permanent residence. This is how she puts it:

On May 1, 1998, Ms. Voskanova did not appear for her interview. As the Immigration Unit Supervisor, I review the files of applicants who do not appear for their scheduled interviews where no interviewing officer has been assigned in order to decide what action is most appropriate. As no interviewing officer had been assigned to Ms. Voskanova"s file, Mr. Hales gave the file to me. My own entries on CAIPS are indicated above the initials "DL" (Certified Tribunal Record , at p. 64). In reviewing the file, I noted Mr. Leahy"s letter dated April 30, 1998 to Thomas Clasper, Deputy Program Manager, Immigration (received by the Consulate in the afternoon on April 30, 1998) advising, without any explanation, that Ms. Voskanova would not be attending her interview (Exhibit "H" to the Affidavit of Olga Iakovenko). ... Taking into account all of the circumstances, including the insufficient merits of the application on the evidence before me, I concluded that Ms. Voskanova"s application should be refused.

[20]      In my view, the applicant"s argument that the Visa Officer fettered her discretion is without substance. Both the screening officer in Buffalo and the Visa Officer in New York considered the merits of the application. It must not be forgotten that the purpose of the scheduled interview was to address the concerns raised by the screening officer in Buffalo. By failing to attend, the applicant could not alleviate these concerns. In my view, the reasons of McDonald J. in Su v. Canada (M.C.I.) (1998) 152 F.T.R. 136 are apposite to the facts of this case and I entirely agree with McDonald J. when he says at pages 138-9:

     Section 22.1 of the Regulations is, in my view, determinative of this issue. It states that an immigration officer may require an applicant to be interviewed "for the purpose of assessing the application". Thus, while a paper assessment (i.e. a review of the application) must be completed, if, during that assessment, an officer decides that an interview is warranted then the applicant must attend the interview as that interview forms part of the assessment. Unless that discretion is exercised unlawfully or has been fettered in some manner, a decision to require an applicant to attend an interview forms part of the application process. If an applicant can not attend an interview at his or her chosen Consulate Office or have his file transferred to another office, he has not complied with regulation 22.1. His application therefore may be dismissed pursuant to s. 19(2)(d) of the Act.

[21]      Further on in his reasons, McDonald J. emphasized the fact that the screening officer had thoroughly reviewed the applicant"s file before determining that an interview was required. At page 139 of his reasons, he states:

     As the applicant was unable to attend an interview as required by the Act, the decision to deny his application pursuant to s. 19(2)(d) was correct. I would therefore dismiss the application for judicial review. In doing so, I emphasize that this is not a case where the visa officer has only given cursory attention to an application before convoking an applicant to interview. The applicant"s application was thoroughly reviewed by the visa officer who determined that a personal interview was warranted. An assessment was made on the paper application: the application could not be processed unless the applicant attended a personal interview. While some other visa officer might have come to a different conclusion on the basis of the paper assessment, the visa officer has clearly fulfilled her duties as required by the Act. There will be no award as to costs.

[22]      In view of the CAIPS notes to which I referred earlier, I am entirely satisfied that the screening officer made a thorough review of the applicant"s file before concluding that an interview was required in the circumstances. By failing to attend her interview without providing a reasonable explanation for her absence, the applicant failed to comply with paragraph 22.1 of the Immigration Regulations, 1978 .

[23]      In my view, the decision made by the Visa Officer to refuse the applicant"s application for permanent residence is not one that I should interfere with. For these

reasons, this application for judicial review shall be dismissed.

Ottawa, Ontario      "MARC NADON"

April 1^st, 1999      JUDGE