IMM-668-97
B E T W E E N:
YAN-LING SU,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
HEALD, D.J.:
This is an application for judicial review of the decision of Visa Officer, Cheryl Athoe, dated January 13, 1997, wherein the applicant's application for permanent residence in Canada was refused. The application was refused because of the applicant's failure to attend an interview.
PROCEDURAL MATTERS
When this application came on for hearing the applicant sought to file an affidavit sworn by Priscilla Lee on September 18, 1997. I accepted the affidavit, and exhibits thereto, for filing and reserved judgment on the question of the admissibility thereof.
Upon reflection, I have concluded that the Lee affidavit and exhibits thereto are admissible as having some relevance to the issues herein.
THE FACTS
On November 7, 1995, the applicant's application for permanent residence in Canada was submitted to the Consulate General in Buffalo, New York. In a preliminary assessment, the applicant was assessed as a cook, foreign foods and awarded 73 points. The case analyst recommended an interview so that the applicant's level of experience could be assessed. The applicant was invited to attend a personal interview at the office of the Consulate General in Buffalo, New York on October 21, 1996. The letter to the applicant warned that failure to attend the interview could result in the application being refused. The letter also stated that the Consulate General could not intervene in the event the U.S. authorities refused admission. It further stated that it was not possible to provide any assurance of re-admission to Canada following the interview. By fax dated October 18, 1996, the applicant advised that he was unable to attend the interview scheduled for October 21, 1996. By letter dated November 27, 1996, the applicant was invited to attend another personal interview on January 13, 1997. By a further letter dated January 6, 1997, the applicant advised that he was again unable to attend the interview because he could not obtain the requisite U.S. B-2 visa. The applicant requested, by letter, the assistance of the Canadian Consulate in obtaining a visa to enable him to attend the interview offered to him. The applicant did not receive a response to this letter.
The applicant next received the refusal letter dated January 13, 1997 supra from visa officer Athoe, which reads as follows: "As you failed to appear for your interview appointment on October 21, 1996 and January 13, 1997, the required assessment could not be made. As a consequence, you come within the inadmissible class of persons described in paragraph 19(2)(d) of the Immigration Act, in that you have failed to comply with the requirements of the Immigration Act and Regulations, and your application has been refused."
ISSUE
The sole issue is whether the visa officer erred in dismissing the application herein on the basis that the applicant failed to attend the interview requested of him.
ANALYSIS
The respondent's submission is that once an interview is recommended, the attendance at an interview becomes mandatory. If this reasoning is correct, then the failure to attend an interview constitutes inadmissability per se because the requirements of the Act have not been fulfilled. Such a submission would have merit where the visa officer performing the assessment, and finally dismissing the application was the same visa officer who ordered the interview. Such is not the case here. In this case, the analyst who did the initial screening recommended that the applicant attend an interview so that the information supplied by him could be verified. This record supports the conclusion that the visa officer who finally denied the applicant's application so decided because it was apparent that the applicant did not attend the interview. There is no indication that she considered the total circumstances and the merits of the application.
In my view, subsection 9(2) of the Act clearly requires the visa officer to assess the application on its merits. Customarily, the visa officer's decision will include a recommendation that the applicant attend an interview. In this regard, the decision of McGillis J. in Baluyut v. Canada. (Minister of Employment and Immigration)1 is instructive. In that case, the issue was whether the visa officer was in error in refusing to interview the applicant without her husband being present. In analyzing the decision, the Court concluded that the officer had fettered her discretion in refusing to consider the applicant's request by deferring to the instructions of her supervisor without considering in detail all of the circumstances of the case. McGillis J. stated:
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A review of the facts of this case demonstrates that Mrs. Roa failed to exercise any independent judgment in the matter and thereby fettered the exercise of her discretion. When confronted with the explanation proffered by Mrs. Baluyut, on the date scheduled for the interview, Mrs. Roa consulted with senior personnel at the Consulate and did exactly what she was told by them to do ... In doing so, she did not examine the case of Mrs. Baluyut on its own merits. |
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The facts at bar are similar in that, in this case, visa officer Athoe also failed to exercise any independent judgment, and as a result she fettered the exercise of her discretion. She did not assess the application on its merits.
CONCLUSION
The application for judicial review is allowed. The decision of visa officer, Cheryl Athoe herein dated January 13, 1997 is set aside and the matter is returned to a different visa officer for rehearing and redetermination on a basis not inconsistent with these reasons for order.
I have not been persuaded that the special reasons contemplated by rule 1618 of the Federal Court Rules have been established on the facts of this case. Accordingly no costs are awarded.
CERTIFICATION
Counsel for the applicant suggested certification pursuant to Section 83 of the Immigration Act of some ten different questions.
For a question to be certified the question must:2
1. arise within the context of the proceedings before the Court;
| 2. not be solely dependant on a factual issue but raise a question of law; |
| 3. raise issues of law of general importance that have not already been determined by decisions of the Federal Court. |
I am not persuaded that any of the questions suggested satisfy the requirements of section 83 and the relevant jurisprudence. With the exception of the second question presented by the applicant, none of the questions squarely arise within the context of the proceedings before the Court. The second question, in my view, does not raise an issue of law of general importance warranting certification. The particular facts of the present case created a situation where the visa officer who refused the application on the basis that the applicant did not attend an interview fettered her discretion by not assessing the merits of the application. The error on the record before the Court is the failure to exercise independent discretion, not the refusal of the application on the basis of the applicant`s failure to attend the interview.
Darrel V. Heald
Deputy Judge
Ottawa, Ontario
October 8, 1997
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1 [1992] 3 F.C. 420 (T.D.) at p. 426.
2Huynh v. R., [1995] 1 F.C. 633 (T.D.) at p. 646.
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