Date: 19990920
Docket: IMM-6106-98
BETWEEN:
JIAN ZHONG MAI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.:
[1] These reasons arise out of an application for judicial review of a decision of a visa officer at the Canadian High Commission in Malaysia, rejecting the applicant"s application for permanent residence in Canada. The decision of the visa officer is dated the 22nd of July, 1998.
[2] The visa officer"s decision reads in part as follows:
| Your application was received at this office on May 24, 1995. After a thorough review of the information contained in your application, it was decided that you would need to be interviewed before a final decision on your application could be made. You did not appear for your scheduled interview on July 12, 1995. Instead, you asked that your file be transferred to the Canadian Embassy in Bangkok. Your file was transferred to Bangkok on December 4, 1995. Since September 1996, the Canadian High Commission in Singapore was given the responsibility of processing immigrant applications for 11 countries in this region, including those submitted at the Canadian Embassy in Bangkok. Therefore, your file was transferred back to this office. A second interview was scheduled for you on June 25, 1998. You did not attend. |
| All correspondence with you has been directed to the mailing address indicated on your application form. We have not received any indication that you have had any problems with receiving our correspondence. As you have failed to appear for your two interview appointments, we are refusing your application for permanent residence in Canada. |
The mailing address indicated on the applicant"s application form was the address of his immigration consultant, although the applicant"s home address was also indicated on the application form.
[3] The best evidence before the Court is that, by letter dated the 11th of May, 1998, addressed to the mailing address indicated on the applicant"s application form, the applicant was notified of the interview scheduled for the 25th of June, 1998.
[4] The tribunal record filed in this matter indicates that the visa officer would have become aware, at least as early as the 19th of June, 1998, some six days before the scheduled interview, that the applicant"s immigration consultant was in trouble. He received a note from the Regional Intelligence Centre for the Ontario Region to the effect that "interview coaching notes" for the applicant prepared by the immigration consultant had been seized. The applicant attests that the immigration consultant "went bankrupt and was charged by the RCMP in some type of immigration fraud in 1996-97."
[5] Against the foregoing facts, counsel for the applicant urged that the visa officer breached the duty of fairness owed by him to the applicant in failing to determine, before rejecting the applicant"s application, whether the applicant had received notice of the interview scheduled for the 25th of June, 1998. It was urged that this could have been determined by writing to the applicant directly at his home address.
[6] It was not disputed before me that the burden rested with the applicant to prove that his admission to Canada would not be contrary to the Immigration Act and Regulations thereunder1. Nor was it in dispute that the applicant had entrusted the management of his application to come to Canada to his immigration consultant.
[7] In Bhajan v. Canada (Minister of Citizenship and Immigration)2, Madame Justice Simpson wrote at pages 47 and 48:
| ... the content of the duty of fairness in visa processing in the period after the decision to interview had been made and prior to the actual interview must also be "minimal". Even so, I can imagine exceptional cases where fairness would require a visa officer in the Consulate to consider a request for an adjournment made for good reason and in a timely fashion. |
Counsel for the applicant urged that this was just such an "exceptional case". By analogy, counsel submitted that fairness requires a visa officer to confirm, directly with the applicant, that he or she has received notice of a scheduled interview notwithstanding the designation of a mailing address for the applicant as the address of her or his immigration consultant, in circumstances where the visa officer becomes aware that the immigration consultant is encountering difficulties that may impact on the service provided to clients.
[8] With regret, I reject these submissions on behalf of the applicant that the visa officer, on the facts of this matter, owed the applicant a duty of fairness that extended to ensuring that the applicant had received notice of the interview scheduled for the 25th of June, 1998. The applicant chose to proceed through an immigration consultant and voluntarily chose the immigration consultant that he saw fit to rely on. I am satisfied that this is the case whether the applicant himself chose the immigration consultant or whether the immigration consultant was selected on his behalf by his relatives in Canada. The onus was on the applicant to ensure that the selected immigration consultant effectively processed his application. Clearly, on the facts of this matter, the applicant failed to discharge that onus. That failure did not cast onto the visa officer an obligation to assume the applicant"s onus, notwithstanding that the visa officer, at least as early as six days before the scheduled interview, became aware that the immigration consultant in question was in some difficulty.
[9] For the foregoing reasons, this application for judicial review will be dismissed.
[10] Counsel for both the applicant and the respondent indicated that, in the event of a decision not favourable to his or her respective client, he or she would recommend certification of a question along the following lines:
| Does a visa officer, who is processing an application for permanent residence that designates a mailing address for the applicant that is the mailing address of an immigration consultant , owe a duty to the applicant to ensure that the applicant has received notice of a scheduled interview in circumstances where the visa officer becomes aware that the immigration consultant has encountered difficulties that may impact on the service provided by the immigration consultant to the applicant? |
While the scope of the proposed question is somewhat narrow, I am satisfied that it is a "serious question" and that immigration consultants find themselves often enough in difficulty to warrant the description of the question as one of "general importance". For the foregoing reasons I will certify a question in the form proposed above.
JUDGE
OTTAWA, ONTARIO
September 20, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-6106-98 |
| STYLE OF CAUSE: JIAN ZHONG MAI |
| - and - |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
| DATE OF HEARING: TUESDAY, SEPTEMBER 14, 1999 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: GIBSON J. |
| DATED: WEDNESDAY, SEPTEMBER 15, 1999 |
| APPEARANCES: Ms. Mary Lam |
For the Applicant
Mr. Marcel Larouche
For the Respondent
SOLICITORS OF RECORD: Cecil L Rotenberg, Q.C.
Barristers & Solicitors
255 Duncan Mill Road
Suite 808
Don Mills, Ontario
M3B 3H9
| For the Applicant |
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date:19990915
Docket: IMM-6106-98
Between:
| JIAN ZHONG MAI |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
| REASONS FOR ORDER |
__________________
1 See subsection 8(1) of the Immigration Act , R.S.C. 1985, c. I-2.