Date: 20010808
Docket: IMM-5655-00
Neutral Citation: 2001 FCT 866
ENTRE:
SHAIKH ARSHAD FAROOQ,
Demandeur
ET:
LE MINISTRE DE LA CITOYENNETÉ ET DE L'IMMIGRATION,
Défendeur
TEITELBAUM, J:
[1] This is a judicial review, pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, of a decision of a Designated Immigration Officer (visa officer), Margaret R. Kingsley, dated September 26, 2000. The decision, which refused the applicant's application for permanent residence, was made at the Office of the High Commission of Canada in London, England and was received by the applicant on October 3, 2000.
[2] The grounds for the present application, as stated in the applicant's judicial review application are:
1. L'agent des visas n'a pas observé un principe de justice naturelle ou d'équité procédurale ou tout autre procédure qu'il était légalement tenu de respecter;
2. Sans limiter la portée générale de ce qui précède, l'agent des visas n'a pas respecté son devoir d'agir équitablement notamment en ne permettant aucunement au demandeur de faire connaître son point de vue avant de rejeter sa demande;
[3] The facts of the case are straightforward and are relatively simple.
[4] The applicant is a citizen of Pakistan. He applied for permanent residence in Canada as an investor. Exhibit "A" to the applicant's affidavit of November 29, 2000 is a copy of the application titled "Immigrant Application Form - Business (Application for Permanent Residence in Canada). The said application was received at the Canadian High Commission on March 31, 1999.
[5] On August 26, 1999, the application was paper screened and the applicant was advised that an interview was required. The applicant was advised that he would be notified of the interview date 1 to 3 months prior to the scheduled interview.
[6] By letter dated June 21, 2000 but mailed on June 22, 2000, the applicant was advised to attend an interview on September 25, 2000. According to the affidavit of Margaret R. Kingsley dated April 11, 2001, "the purpose of the interview was to determine if the applicant met the criteria for selection in the category in which he applied and his admissibility to Canada".
[7] This notice required the applicant to confirm his attendance at the scheduled date for the interview. The letter also states:
NOTE: Your application will be refused if:
1. You do not confirm your attendance at your interview at least two weeks prior to the date of the interview.
2. You fail to notify us that you will not attend your interview, at least two weeks prior to the date of that interview.
3. You confirm you will attend your interview and then fail to attend the interview as scheduled.
[8] Numbers 1 and 2 are not applicable to the facts of the case at bar. What is of vital importance is number 3 of the above.
[9] The applicant confirmed that he would attend the interview scheduled for September 25, 2000 as, on July 20, 2000, a fax was received at the High Commission from the applicant confirming his presence.
[10] On September 25, 2000, the applicant failed to appear for his interview. At no time prior to the scheduled date did the applicant notify anyone at the office of the High Commission of not being able to attend his interview.
[11] Ms. Kingsley states, in her affidavit of April 11, 2001, at paragraphs 8 to 14:
8. On September 25, 2000, I reviewed the Applicant's file, I confirmed that an interview was required and I refused his application.
9. On September 26, 2000, the refusal letter was prepared and was mailed to the Applicant on September 27, 2000. The refusal letter is produced as exhibit"A" to my affidavit.
10. On October 2, 2000, a fax from the Applicant dated 29 September 2000 providing reasons for not attending the interview was received.
11. All my comments regarding the Applicant's file appear in the CAIPS notes which I produce as exhibit "B" to my affidavit.
12. I have been a regular user of the CAIPS system since 1987. CAIPS is an electronic system for processing applications for permanent and temporary entry to Canada. Each processing module (immigrant, student, worker, etc) has a notes module for each application where information about the applicant can be entered.
13. When an entry in CAIPS is completed, the system enters a double line with the initials of the person making the entry and the entry becomes permanent. My initials are MRK and my assistant's initials are CBL.
14. Should a person wish to make additional notes in an application, it would require a new entry in the application and it would appear in the CAIPS under the last entry that was made.
[12] Ms. Kingsley was not cross-examined on her affidavit and no evidence was filed that would contradict what was said by her.
[13] The applicant, in his affidavit of November 29, 2000 states in paragraphs 6 to 11:
6. At the last moment, due to unavoidable circumstances, I was unable to attend this interview.
7. As can be observed from all the documents previously submitted to the Canadian High Commission in London, UK, I have various business interest in Pakistan ranging from Textile to Electronics, for which I am personally (sic) responsible.
8. A few days prior to my departure from Pakistan to attend the interview in London, UK, the State Bank of Pakistan suddenly allowed the free flotation of the Pakistan rupees upon which it immediately devalued by 10 to 15 percent;
9. For this reason, I had to honour (sic) immediately certain commitments with the bank and my absence would have had very negative effects on my businesses;
10. September 29, 2000, I sent a letter to the Canadian (sic) High Commission in London, UK, to justify my absence and request a new date for interview, copy of this letter is joined to my affidavit as exhibit "C";
11. October 3, 2000, I received the decision dated September 26, 2000 refusing my application for permanent residence, for failure to attend the interview scheduled September 25, 2000;
[14] The letter of September 29, 2000 explaining why the applicant was unable to attend the interview was received by Ms. Kingsley on October 2, 2000. This letter states:
SUB: MISSED INTERVIEW DATED 25-9-2000
Dear Sir/Madam,
Reference to the above due to certain unavoidable circumstances I could not reach London for the above interview.
The main reason being due to sudden flotation of the Pakistani rupee which plunged by 10% in few days and adversely effecting the local economy. Due to my various business commitments it was extremely necessary for me to assess the present situation and to make some important decision, and that's why I had to reluctantly postpone my trip.
I realize the inconvenience caused to you due to this for would ask to apologize and I would request for a fresh date of interview at whatever time is appropriate from your side.
Once again I request the inconvenience caused.
[15] It is important to note that the applicant gives no reason in his September 29, 2000 letter why it would have been impossible or even difficult for him to have sent a fax or to have made a telephone call prior to the interview date to have requested a postponement of the interview.
[16] It is also important to note that there is nothing in the applicant's affidavit to explain why he was unable to inform someone at the High Commission that, because of the currency crisis in Pakistan, he would be unable to attend the interview and request another date for the said interview.
[17] Be that as it may, on September 25, 2000, the applicant's application for permanent residence in Canada was refused because of his failure to attend and a letter dated September 26, 2000 was sent to the applicant on September 27, 2000. It was four days after Mrs. Kingsley's decision of refusal that the applicant sent his fax of September 29, 2000, received, as I said, on October 2, 2000, giving his reason for failing to appear for his hearing.
[18] I am satisfied that the above are the uncontested facts of this case.
[19] The applicant, in his written submissions states the following as the legal points in issue
5. L'Agent des visas ne peut rejeter une demande de résidence permanente pour le seul motif de l'absence à une entrevue;
6. L'Agent des visas ne peut rejeter une demande de résidence permanente en raison de l'absence à une entrevue sans permettre au demandeur de justifier son absence;
Applicant's Submissions
[20] The applicant's submissions can be gleaned from the Applicant's Record at pages 18, 19 and 20 and which written submissions were more fully elaborated upon in oral argument.
[21] To summarize the applicant's submissions, he states that, in this particular case, an applicant must be granted an interview so as to show that he fulfills all of the requirements of the law and regulations (article 11.1 of the Immigration Regulations). It is normal for a person who has been granted an interview to be present for same saving for exceptional circumstances that would prevent the applicant from being present for the interview. In the case at bar, it was understood that the applicant would confirm his presence at the interview fixed for September 25, 2000. This the applicant did. If the date was not suitable to the applicant, it was for the applicant to inform the High Commission of this fact.
[22] The applicant submits that there is nothing in the law or regulations as to what happens to an applicant when an unforeseen or unexpected event takes place which prevents the applicant from attending the interview. In the present case, the applicant alleges just such an unexpected event, that is, the sudden and unforeseen devaluation of the Pakistani currency which the applicant alleges had a devastating effect on his business.
[23] The applicant submits that Ms. Kingsley refused the applicant's application for permanent residence in Canada "sans jamais ni demander de justifier son absence, ni considérer la justification qui est parvenue quelques jours plus tard" and thus acted in a manner which denied the applicant the duty of fairness owing to the applicant. The applicant goes on to say that the visa officer (Ms. Kingsley) failed in her duty to act fairly by refusing the applicant "sans considérer la raison de l'absence à une entrevue".
[24] The applicant, in his written submissions, goes on to state in paragraphs 16 and 17:
16. Toute règle administrative applicable relativement à la présence aux entrevues doit, au moins, prévoir la possibilité de justifier une absence raisonnable, par exemple en raison d'accident ou de maladie;
17. La décision en l'espèce ayant été prise sans considérer les circonstances de l'absence et sans considérer son mérite, au fond, est nulle en droit;
Respondent's Submissions
[25] The respondent submits that in the present case, Ms. Kingsley acted with complete procedural fairness. Pursuant to paragraph 11.1(b) of the Immigration Regulations, an immigrant in the category of "Investor", as is the present applicant, must be granted an interview. In the present case, the applicant was granted the opportunity of an interview for which, after confirming his presence, he failed to attend. The respondent alleges that the applicant was aware that if he failed to attend the interview, his application for permanent residence would be denied. Furthermore, the respondent states that the applicant waited until October 3, 2000 (should read October 2, 2000) to send a fax of a letter dated September 29, 2000 to the Office of the High Commission in London to explain the reason why he failed to attend the interview scheduled for September 25, 2000.
[26] The respondent also states that there was no denial of natural justice by the visa officer denying the applicant's application for residence as the applicant failed to appear for the interview, which interview was mandatory to enable the visa officer to complete the study of the application to verify if all the criteria of admissibility are present.
[27] The respondent further states that even if the applicant was not present at the interview, Ms. Kingsley studied the documents in the file and concluded "suite au défaut du demandeur de se présenter à son entrevue qu'elle ne pouvait accorder la demande de visa".
The Applicable Law
[28] The pertinent sections of the Immigration Act are the following:
|
8. (1) Where a person seeks to come into Canada, the burden of proving that that person has a right to come into Canada or that his admission would not be contrary to this Act or the regulations rests on that person. |
8. (1) Il income à quiconque cherche à entrer au Canada de prouver qu'il en a le droit ou que le fait d'y être admis ne contreviendrait pas à la présente loi ni à ses règlements. |
|
9.(1) Except in such cases as are prescribed, and subject to subsection (1.1), every immigrant and visitor shall make an application for and obtain a visa before that person appears at a port of entry. (2) An application for an immigrant's visa shall be assessed by a visa officer for the purpose of determining whether the person making the application and every dependent of that person appear to be persons who may be granted landing. (3) Every person shall answer truthfully all questions put to that person by a visa officer and shall produce such documentation as may be required by the visa officer for the purpose of establishing that his admission would not be contrary to this Act or the regulations. (4) Subject to subsection (5), where a visa officer is satisfied that it would not be contrary to this Act or the regulations to grant landing or entry, as the case may be, to a person who has made an application pursuant to subsection (1) and to the person's dependants, the visa officer may issue a visa to that person and to each of that person's accompanying dependants for the purpose of identifying the holder thereof as an immigrant or a visitor, as the case may be, who, in the opinion of the visa officer, meets the requirements of this Act and the regulations. |
9. (1) Sous réserve du paragraphe(1.1), sauf cas prévus par règlement, les immigrants et visiteurs doivent demander et obtenir un visa avant de se présenter à un point d'entrée. (2) Le cas du demandeur de visa d'immigrant est apprécié par l'agent des visas qui détermine si le demandeur et chacune des personnes à sa charge semblent répondre aux critères de l'établissement. (3) Toute personne doit répondre franchement aux questions de l'agent des visas et produire toutes les pièces qu'exige celui-ci pour établir que son admission ne contreviendrait pas à la présente loi ni à ses règlements. (4) Sous réserve du paragraphe (5), l'agent des visas qui est convaincu que l'établissement ou le séjour au Canada du demandeur et des personnes à sa charge ne contreviendrait pas à la présente loi ni à ses règlements peut délivrer à ce dernier et aux personnes à charge qui l'accompagnent un visa précisant leur qualité d'immigrant ou de visiteur et attestant qu'à son avis, ils satisfont aux exigences de la présente loi et de ses règlements. |
[29] The pertinent paragraphs of the Immigration Regulations are the following:
|
11.1 for the purpose of determining whether an immigrant and the immigrant's dependants will be able to become successfully established in Canada, a visa officer is not required to conduct an interview unless, based on the review of the visa application and the documents submitted in support thereof, ... (b) the immigrant is an entrepreneur, an investor, a provincial nominee or a self-employed person. 22.1 (1) An immigration officer may require that an applicant for landing who is in Canada, or an applicant for an immigration visa, and dependants of the applicant, if any, be interviewed for the purpose of assessing the application. |
11.1 afin de déterminer si un immigrant et les personnes à sa charge pourront réussir leur installation au Canada, l'agent des visas n'est pas obligé de tenir une entrevue, sauf si l'immigrant, d'après l'étude de sa demande de visa et des documents à l'appui: ... (b) soit est un candidat d'une province, un entrepreneur, un investisseur ou un travailleur autonome. 22.1 (1) L'agent des visas 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. |
Issues (as I see them)
[30] What is the legality of a statement in a letter scheduling an interview to "complete" an application for permanent residence in Canada as an investor which states:
NOTE: Your application will be refused if:
1. You do not confirm your attendance at your interview at least two weeks prior to the date of the interview. (Not applicable)
2. You fail to notify us that you will not attend your interview, at least two weeks prior to the date of that interview. (Not applicable)
3. You confirm you will attend your interview and then fail to attend the interview as scheduled.
[31] As I have said, only number 3 of the above is applicable to the facts of this case.
[32] Seeing the above, does the visa officer have any discretion to not reject the application for permanent residence in Canada as an investor if the applicant does not attend the scheduled interview and fails, before the decision is made by the visa officer, to explain the failure to attend the interview?
Discussion
[33] It is trite law that a visa officer in examining an application for permanent residency in Canada must act with procedural fairness. Failing this, I am satisfied there would be a denial of natural justice.
[34] I am satisfied that, based on the facts in this case, the visa officer acted with procedural fairness. There was no denial of natural justice.
[35] The applicant filed his application for permanent residence in Canada with the Office of the High Commission in London. The application was paper screened and a letter was sent to the applicant that 1 to 3 months before an interview would be scheduled, he would be told of same. This was done. The applicant then confirmed his presence at the scheduled interview. At no time before the interview date did the applicant ask for a postponement of the interview. It was after 4 days of the scheduled interview date that the applicant sent, by fax, a letter dated September 29, 2000, received on October 2, 2000, explaining why he was not present.
[36] At no time does the applicant explain why it was that he could not have requested an adjournment of his interview before the scheduled date.
[37] After the applicant failed to appear for his scheduled interview, the visa officer, on September 25, 2000 reviewed the applicant's file and refused the applicant's application (see paragraph 8 of visa officer affidavit).
[38] It would appear from examining Exhibit "B" (CAIPS notes) to the visa officer's affidavit that she examined and assigned points for the various items to be verified on an investor application before refusing the application.
[39] The applicant submitted for my consideration the case of Bhajan v. Canada 34 Imm.L.R. 189 to establish the principle that if a reasonable request for an adjournment is made, it should be granted so that all parties may be heard and justice must be done. I agree. Unfortunately for the applicant, he failed to request an adjournment of the interview before the decision on his application was made.
[40] This is not a case, from the evidence before me, that the applicant had suffered a heart attack or a serious car accident where it is possible that the applicant could not have requested an adjournment of the interview. There is nothing in the evidence filed by the applicant as to why he was unable to have made a request for an adjournment of his interview.
[41] The decision by the visa officer to refuse the application for permanent residence is reasonable.
[42] The application for judicial review is denied.
[43] Neither party had a question for certification.
"Max M. Teitelbaum"
J.F.C.C.
Ottawa, Ontario
August 8, 2001
Date: 20010808
Docket: IMM-5655-00
OTTAWA, ONTARIO, WEDNESDAY, THIS 8TH DAY OF AUGUST, 2001
BEFORE: THE HONOURABLE MR. JUSTICE TEITELBAUM
ENTRE:
SHAIKH ARSHAD FAROOQ,
Demandeur
ET:
LE MINISTRE DE LA CITOYENNETÉ ET DE L'IMMIGRATION,
Défendeur
O R D E R
For the reasons given in my Reasons for Order, the application for judicial review is denied.
"Max M. Teitelbaum"
J.F.C.C.