Date: 20020528
Docket: IMM-3940-01
Neutral Citation: 2002 FCT 614
BETWEEN:
XIA TIAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
This is an application for judicial review of a visa officer's decision, dated August 2, 2001, refusing the Applicant's application for permanent residence in Canada.
The Applicant submitted her application for permanent residence under the investor category on March 30, 1999. By letter dated April 24, 2001, the Applicant was advised to attend an interview on July 23, 2001. The relevant portions of the letter read as follows:
This refers to your application for permanent residence in Canada. In order to determine if you comply with Canadian immigrant requirements, it will be necessary for you to attend an interview at the Consulate General at the following date and time:
...
Cancellation/Rescheduling of Interviews: To be fair to our large number of applicants, interviews will not be rescheduled unless there are extenuating circumstances. If there are compelling reasons why you and/or your spouse and/or your dependants over 18 are unable to attend, please notify this office by fax at (852) 2847-7493 at least two weeks in advance of the interview date, quoting your file number and providing a detailed explanation and a return fax number. We will review your submission and advise by fax whether we are able to accommodate your rescheduling request.
If you fail to notify us that you will not attend, or if you fail to attend if your request for postponement has not been granted, we will assess your application according to the information available on the file at that time and make a selection on that basis.
(Applicant's Record, p.6) (Emphasis added)
By letter dated July 16, 2001, the Applicant requested a rescheduling of the interview due to unspecified personal reasons. The Applicant received a response, dated July 20, 2001, refusing the request in the absence of serious extenuating circumstances. This letter again stated that if the Applicant failed to attend the interview, her application would be assessed according to the information available on file and that a selection would be made on that basis (Applicant's Record, p.8). The Applicant replied on July 23, 2001, acknowledging the refusal and stating that due to marital problems that may result in divorce, the Applicant was still unable to attend the interview.
By letter dated August 2, 2001, the Visa Officer refused the Applicant's application for the following reason:
A review of your file indicates that you failed to attend the interview which was scheduled for you on July 23, 2001. You have failed to make yourself available for the required assessment. Your application is therefore refused.
The evidence on the record indicates that by virtue of the bolded paragraph in the letter dated April 24, 2001, the Applicant and her immigration consultant were under an expectation which is stated as follows:
It was our understanding from this letter that the visa officer who was assigned to assess this application would make a selection decision on the information on file at that time if the Applicant did not attend at the interview.
(Affidavit of Joe Kenney, September 10, 2002, Applicant's Application Record, p.4)
I find that, from the letter of April 24, 2001, a legitimate procedural expectation could, and did, arise which was not met by the Visa Officer. On this basis, as the decision was reached on the basis of the Applicant's non-appearance, an error in due process occurred.
O R D E R
Accordingly, I set aside the Visa Officer's decision and refer this matter to another visa officer for redetermination.
(Sgd.) "Douglas R. Campbell"
Judge
Vancouver, British Columbia
May 28, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3940-01
STYLE OF CAUSE: Xia Tian v. MCI
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: May 28, 2002
REASONS FOR ORDER OF THE COURT BY: Campbell J.
DATED: May 28, 2002
APPEARANCES:
Dennis Tanack FOR APPLICANT
Pauline Anthoine FOR RESPONDENT
SOLICITORS OF RECORD:
Dennis Tanack FOR APPLICANT
Vancouver, British Columbia
Deputy Attorney General of Canada FOR RESPONDENT
Department of Justice
Vancouver, British Columbia