Ottawa, Ontario, October 4, 2006
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
AMBER QAISER QAZI
KELEEM KEHAAN QAZI
SHAHEER QAZI
Applicants
and
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] On November 25, 1999, Mr. Mahmood Qazi applied for a permanent resident visa in the skilled worker category. Subsequently, the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act) came into effect and so his application was evaluated under the criteria set out in the Act and the Immigration and Refugee Protection Regulations, SOR/2002-227 (Regulations) relating to Federal Skilled Workers and was also evaluated under the prior legislative scheme, being the Immigration Act, R.S.C. 1985, c. I-2 (former Act) and the Immigration Regulations, 1978, SOR/78-172 (former Regulations). A designated immigration officer at the Canadian Consulate General in Hong Kong (officer) was not satisfied under either legislative scheme that Mr. Qazi would be able to become economically established in Canada. The application for permanent residence was, therefore, refused.
[2] This application for judicial review of that negative decision will turn upon the propriety of the officer’s treatment of Mr. Qazi's failure to attend two scheduled interviews.
BACKGROUND FACTS
[3] The Computer Assisted Immigration Processing System (CAIPS) notes record the following:
- On November 25, 1999, the application for permanent residence was made.
- On January 3, 2000, the file was paper screened.
- On April 8, 2003, an “IRPAization letter” and document list was sent to Mr. Qazi.
- On February 13, 2004, an officer wrote that the file "will be assessed under the former Act or IRPA whenever [sic] is more favourable. In order for us to conduct a complete assessment, will require to provide docs list which sent to him on 08Apr2003".
- On March 31, 2004, an officer wrote “[n]eed to follow up on documents requested in April, 2003”.
- On April 13, 2004, a letter was sent to Mr. Qazi. A copy of the letter is in the Tribunal Record. The letter stated, "[a] review of your file indicates that we currently have insufficient information to undertake such an assessment. Documents were previously requested from you but to date we have not received the necessary information. Therefore, please proceed with the items below within 60 days from the date of this letter. Please note: timely completion of these items may allow us to proceed favourably with your application without the need to convoke you for a personal interview at our office [emphasis removed from original]". There is no indication on the file that the documents were provided.
- On March 10, 2005, an officer wrote, "[c]ase discussed with IPM. Interview is warranted".
- On April 1, 2005, a letter was sent to Mr. Qazi in care of his consultant. The letter is found in the tribunal record, and it states in part:
This refers to your application for permanent residence in Canada. In order to determine if you comply with Canadian immigration requirements, it will be necessary for you to attend an interview at the Consulate General at the following date and time:
Date: 7 June 2005, Tuesday Time: 10:00 a.m.
- By letter dated May 20, 2005, Mr. Qazi's new counsel wrote requesting that the interview be waived in its entirety, or be held by telephone or through video conferencing facilities, or be postponed. Some updated information was provided with respect to the application.
- On June 1, 2005, the officer wrote, "[w]ill inform representative that interview cannot be waived, that in view of applicant's inability to attend 2 scheduled interviews on 22Apr2003 and 07Jun2005, a last interview opportunity will be offered. Failure to attend last scheduled interview will result in refusal of application". In a subsequent entry, the officer corrected this information to note that the interview scheduled for April 22, 2003 was cancelled and an interview call-in letter advising of such date had never been sent.
- On June 2, 2005, a letter was sent by the officer to Mr. Qazi. A copy is in the tribunal record and it states:
Dear applicant,
This refers to your application for permanent residence in Canada.
Please be advised that an interview is required. In view of your inability to attend two scheduled interviews on 22 April 2003 and 07 June 2005, a last interview is scheduled on 13 September 2005 at 09:00 a.m.
Please note that failure to attend your re-scheduled interview will result in the refusal of your application, without exception.
Please refer to the attached interview supplement list for documents to be presented at interview.
Yours truly, [emphasis omitted]
- It is common ground that Mr. Qazi did not attend the interview on September 13, 2005. By letter dated August 18, 2005 his counsel had reiterated the request that the interview be waived.
- On September 14, 2005, the officer reviewed the above history and proceeded to assess Mr. Qazi's application for a permanent resident visa on the basis of the information contained in the Mr. Qazi's file.
THE OFFICER’S DECISION
[4] With respect to the criteria contained in the former Regulations, Mr. Qazi received 61 units of assessment, however 70 units were required in order to qualify for an immigrant visa. No units were awarded for experience or personal suitability because in the absence of an interview Mr. Qazi's "claimed [work] experience could not be confirmed" nor could his personal suitability be assessed. A maximum of eight and ten units could have been awarded respectively for experience and personal suitability.
[5] With respect to the assessment under the Regulations, Mr. Qazi received 44 points, but 67 points were required for the issuance of a visa. No points were awarded for experience because the claimed work experience could not be verified in the absence of an interview, and no points were awarded for adaptability. A maximum of 21 and 10 points were available for those criteria. Mr. Qazi was awarded 20 out of a possible 25 points for his education.
THE ERRORS ASSERTED
[6] Mr. Qazi asserts that the officer made the following errors:
(i) In respect of the assessment under both legislative schemes, the officer erred by awarding zero points for work experience.
(ii) In respect of the assessment under the Regulations, the officer erred by awarding 20 and not 25 points for Mr. Qazi's education.
(iii) In respect of the assessment under the Regulations, the officer erred by awarding zero and not eight points of assessment for adaptability.
CONSIDERATION OF THE DECISION
(i) The assessment of work experience
[7] Mr. Qazi argues that the officer had before him objective and verifiable documents confirming Mr. Qazi's claimed experience. Nowhere in his decision did the officer raise any issue with respect to the authenticity of those documents, nor did the officer cast any doubt upon or contradict Mr. Qazi's work experience. It is said that it was absurd to suggest that because Mr. Qazi did not attend an interview, the officer was unable to confirm his work experience.
[8] In support of this argument Mr. Qazi points to the guidance given to officers in Chapter 6 of the Overseas Processing Manual (OP 6) which deals with processing applications in the Federal Skilled Workers category. Section 11.2 of OP 6 provides:
11.2. Use of interviews
Selection standards are objective and clearly defined, and eligibility can be assessed in straightforward cases through the information provided on the application for permanent residence forms and the accompanying supporting documentation.
In most cases, officers should be able to make selection decisions—either to approve or refuse applications—from the documentation provided. However, in some cases, an interview may be necessary.
Any concerns officers have regarding the accuracy or authenticity of information or documentation should be communicated to the applicant, whether these concerns are raised as the result of site visits, telephone checks or other means. Concerns can be communicated to the applicant in writing or at interview.
Officers may conduct interviews with applicants to:
• ensure that information submitted on the application is truthful and complete;
• detect and deter fraudulent information and documents;
• clarify specific information;
• conduct quality control.
Officers may not conduct interviews to:
• assess language abilities;
• determine personal suitability (as this factor no longer exists).
[9] In considering this argument, I begin by observing that the former Regulations contained two provisions relevant to the requirement that Mr. Qazi attend an interview. Subsection 22.1(1) of the Regulations was a general provision that allowed an immigration officer to require an applicant for landing to attend at an interview. Further, Schedule 1 of the former Regulations directed that units of assessment for personal suitability were to be awarded on the basis of an interview with the applicant. The jurisprudence of this Court established that at least where an immigration officer thoroughly reviewed the written application and determined that an interview was required, the failure of an applicant to attend the interview could justify rejection of an application for landing. See, for example. Voskanova v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 449 and Zhu v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 99.
[10] In my view, the circumstances before the Court in this case with respect to the assessment of the application under the former Act and former Regulations are indistinguishable from those before the Court in Zhu. There, at paragraph 26, my colleague Mr. Justice MacKay wrote:
26 I conclude that in the circumstances of this case the visa officer did ultimately assess the application on the basis of the documents submitted by the applicant but concluded no final assessment could be made without an interview. Having failed to keep three appointments made for an interview, the officer dismissed the application since she was not satisfied that the applicant had met the requirements set out in the Act for admission as an investor. He was thus a person within paragraph 19(2)(d) of the Act -- one not to be granted admission since he did not fulfil or comply with directions lawfully made or given under the Act or the Regulations requiring he be interviewed to complete assessment of his application.
[11] While Mr. Qazi failed to attend two and not three interviews, on the same reasoning I similarly find in the present case no reviewable error in the officer's assessment of Mr. Qazi's application under the former Act and former Regulations.
[12] As for the assessment of Mr. Qazi's work experience under the Act and Regulations, an officer retains discretion under the current legislation to require an applicant to attend an interview. This flows from subsection 16(1) of the Act and is recognized in OP 6. While section 11.2 thereof suggests that in most cases selection decisions may be made from the documentation provided, it provides the following admonition to officers:
Note: Visa offices will be expected to undertake both targeted and random verifications to detect and deter fraud. The number and percentage of cases subjected to verification should be high enough to act as a meaningful disincentive to those who would attempt such practices. A40 makes material misrepresentation a grounds for inadmissibility in its own right and prescribes a two-year ban on those both directly and indirectly involved in such practices.
Interviews, site visits and telephone checks have proven to be the most effective ways to detect and to combat fraud. The information gained at interviews where fraud is detected will help officers to identify current trends and patterns and to refine their profiles for ongoing use.
[13] An applicant for an immigrant visa has no right to direct that his or her application be processed without an interview. The provision in writing of all of the information and documents required by the Act and Regulations is simply a condition precedent to the substantive consideration of the application (see: paragraph 10(1)(c) of the Regulations and section 8.2 of OP 6).
[14] As to the degree of scrutiny to be applied to a decision of an officer to require an interview, in Su v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1091, Mr. Justice McDonald (then a judge of what was the Federal Court Appeal Division sitting as a judge of the Federal Court Trial Division) wrote at paragraph 6 that:
6. 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. [underlining added]
[15] Thus, the Court held that the decision to call an applicant to an interview would be reviewable on the standard of patent unreasonableness.
[16] Su was a decision rendered in respect of the legislative provisions contained in the former Act and Regulations. However, the current legislative regime continues to vest a discretion in an officer to require attendance at an interview. In determining the standard of review to be applied to the exercise of that discretion, it is necessary to consider the four factors that comprise the pragmatic and functional analysis (the existence of a privative cause, relative expertise, the purpose of the provision and the Act, and the nature of the question). Having regard to those factors:
(1) The requirement of leave to judicially review an officer's decision suggests that Parliament intended a limited right of review (see: Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 at paragraph 31).
(2) Expertise is a relative concept, and the expertise must be assessed in the context of the specific issue before the decision-maker. Officers will acquire expertise determining when an interview is required. The Court has no greater expertise in respect of this fact-based decision. This factor counsels deference.
(3) The purpose of the provision is to facilitate the production of complete and accurate information. It does not require the balancing of the interests of various constituents. This factor suggests a stricter standard of review.
(4) The decision whether to require interview is highly discretionary and fact-based. However, subsection 16(1) of the Act requires an applicant to produce “all relevant evidence and documents that [an] officer reasonably requires”. This means that the decision to require information is not completely open-ended. It suggests an intent that there be some review of an officer’s decision.
[17] In my view, these factors lead to the conclusion that the decision should be reviewed on the standard of reasonableness simpliciter. Review on this standard does not entitle the reviewing court to ask what the correct decision would have been. Rather, “[a]pplying the standard of reasonableness gives effect to the legislative intention that a specialized body will have the primary responsibility of deciding the issue according to its own process and for its own reasons. The standard of reasonableness does not imply that a decision-maker is merely afforded a ‘margin of error’ around what the court believes is the correct result”. See: Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 at paragraph 50.
[18] Applying that standard to the officer's decision, the CAIPS notes show that at least two officers determined that further information was required, as evidenced by the requests sent out by mail for more information (even if those requests were not received, as Mr. Qazi suggests in the affidavit filed in support of his application). At least two officers concluded that an interview was required. On the basis of the matters recorded in the CAIPS notes I find it was not unreasonable to request that Mr. Qazi attend an interview so as to provide further information so that an assessment could be made whether Mr. Qazi met the requirements for admission.
[19] Thereafter, when Mr. Qazi did not attend the last scheduled interview, the officer assessed the application on the basis of the documents submitted, but concluded that he was unable to assess or confirm Mr. Qazi's work experience without an interview. That decision was not, in the circumstances of this case, unreasonable in that a reasonable person could proceed from the evidence to the result.
(ii) The assessment of education and (iii) The assessment of adaptability
[20] Assuming that the officer erred on both these grounds as Mr. Qazi argues, Mr. Qazi would have been entitled to an additional 13 points, resulting in a total award of 57 points. However, 67 points were required. Thus, any such errors were not be material to the officer's assessment because it would not have changed the outcome.
(iv) Conclusion
[21] I am troubled by the fact that the CAIPS notes do not explain in any detail why it was determined that an interview was required. In my view, better practice would be to enter some brief rationale into the CAIPS notes for the decision to require that an interview be convoked. However, the onus is upon each applicant to show that he or she meets the selection criteria for admission. On the facts of the present case, where the tribunal record shows that additional written material was required and requested from the applicant, and where the applicant failed to attend two scheduled interviews knowing of the consequences of his failure to attend, I am not prepared to find that the officer was obliged to more fully explain in CAIPS notes why an interview was required.
[22] For these reasons, the application for judicial review is dismissed.
[23] Mr. Qazi did not seek certification of a question and on the specific facts before me no question is certified. This decision turns very much on the facts before the Court and I am not satisfied that they give rise to a question of general importance.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1. The application for judicial review is dismissed.
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6897-05
STYLE OF CAUSE: MAHMOOD QAISER QAZI
AMBER QAISER QAZI
KELEEM KEHAAN QAZI
SHAHEER QAZI
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JULY 26, 2006
APPEARANCES:
NASER IQBAL FOR THE APPLICANTS
DAVID TYNDALE FOR THE RESPONDENT
SOLICITORS OF RECORD:
NASER IQBAL FOR THE APPLICANTS
BARRISTER & SOLICITOR
NORTH YORK, ONTARIO
JOHN H. SIMS, Q.C. FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA