Ottawa, Ontario, March 5, 2007
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review brought by Srinivas Kumar Vellanki challenging a decision by a Visa Officer, denying his application for a permanent resident visa.
Background
[2] On March 1, 2000 Mr. Vellanki submitted a completed application for a permanent resident visa to the Canadian Embassy in Buenos Aires. He was seeking to come to Canada from India as a member of the Skilled Worker Class, specifically as a Marketing Consultant. Despite strong indications that Mr. Vellanki qualified for a visa, his application was denied by letter dated
January 6, 2006, signed by Juana Leschziner. That denial was based on Mr. Vellanki’s failure to provide requested supporting documentation by a deadline imposed by Ms. Leschziner on October 19, 2005.
[3] A brief chronology of events is helpful to understand the basis of the decision under review.
· March 1, 2000 - Application submitted on behalf of Mr. Vellanki to the Canadian Embassy in Buenos Aires, Argentina.
· May 29, 2000 - Application acknowledged by the Department.
· May 10, 2001 - Mr. Vellanki interviewed in Buenos Aires and further information requested concerning his Canadian sister.
· May 16, 2001 - Mr. Vellanki submits information in proof of relationship to his Canadian sister.
· June 20, 2001 - Mr. Vellanki’s counsel requests information regarding the status of the application.
· July 19, 2001 - Department advises that verification of Mr. Vellanki’s academic and employment record is underway in New Delhi.
· July 10, 2002 - Department advises that verification of academic and employment record is incomplete and further information and money to obtain records is required.
· August 12, 2002 - Mr. Vellanki’s counsel provides information requested by the Department and confirms payment of the required funds.
· September 23, 2002 - Mr. Vellanki’s counsel requests an update on status of the application.
· October 4, 2002 - Department requests further information to verify Mr. Vellanki’s employment experience.
· November 7, 2002 - Mr. Vellanki’s counsel provides the requested employment information to the Department.
· March 31, 2003 - Department requests an updated Background Declaration (Form IMM8) and updated police certificate.
· April 14, 2003 - Department requests further contact information for Mr. Vellanki’s employer to be provided within three (3) months.
· June 13, 2003 - Mr. Vellanki’s counsel provides updated Background Declaration (IMM8) and requests clarification of Indian police clearance requirement.
· October 3, 2003 - Department again requests contact information for Mr. Vellanki’s current employer and advises that this is a “last reminder”.
· October 16, 2003 - Mr. Vellanki’s counsel confirms that the employer’s contact information as previously provided remains valid.
· March 12, 2004 - Mr. Vellanki’s counsel requests a status report from the Department and notes that the application has then been pending for three years.
· March 31, 2004 - Department advises that verification of Mr. Vellanki’s employment was still underway in its Delhi office.
· July 6, 2005 - Department requests a partially updated Background Declaration (Form 8 – Schedule 1), an updated work certificate and 4 recent photos to be provided within two (2) months (i.e. before September 6, 2005).
· September 23, 2005 - Mr. Vellanki’s counsel requests an additional 60 days to provide the information required by the Department.
· October 19, 2005 - Department again requests updated documentation and advises that this is a “last reminder”. The Department’s letter also states that “if we do not receive the requested documents before December 30, 2005, we shall assume that you are no longer interested in pursuing your application and your application will be refused and the file closed”.
· January 6, 2006 - Department writes to Mr. Vellanki through his counsel refusing his application because of the failure to provide the documents requested by the deadline of December 30, 2005.
· January 11, 2006 - After returning to work following an illness and Christmas holidays the Immigration law clerk for Mr. Vellanki’s counsel checks the status of the application on the internet and confirms that it is still “in process”.
· January 16, 2006 - Mr. Vellanki’s counsel submits updated documents by fax and courier but the Department maintains its decision to refuse Mr. Vellanki’s visa application.
[4] The record indicates that in 2005 the Department abandoned its efforts to verify Mr. Vellanki’s employment and educational references through its Delhi office and concluded that he met the selection requirements as a Skilled Worker. What was left was an assessment of his admissibility to Canada on security and medical grounds. The Department’s request on July 6, 2005 for an updated Form 8 and current photos was directly related to those outstanding issues.
Issues
[5] (a) What is the standard of review for the Visa Officer’s decision to refuse a visa to Mr. Vellanki?
(b) Did the Visa Officer err by refusing Mr. Vellanki’s application for the reasons given?
Standard of Review
[6] The issues raised on behalf of Mr. Vellanki on this application have all been characterized in terms of procedural fairness or statutory interpretation and, as such, must be resolved on a standard of correctness: Kniazeva v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 336, 2006 F.C. 268.
Analysis
[7] It is apparent from the record that Mr. Vellanki’s application was caught up in somewhat of a bureaucratic quagmire or, as his counsel, aptly described it, a “5 year odyssey”. Some of this delay is understandable but it is difficult to justify an approval process of such a duration particularly where, as here, Mr. Vellanki apparently met the selection requirements for entry to Canada as a Skilled Worker. What was left for determination in this case was Mr. Vellanki’s admissibility on security and medical grounds and it was with respect to those matters that the Department had requested updated information for the period between 2003 and 2005. Although counsel for Mr. Vellanki is probably correct that the application could have been processed without this information, the fact remains that the Visa Officer requested updates and had a reasonable basis for doing so. This is the type of decision deserving of a high degree of deference: see Kniazeva v. Canada (Minister of Citizenship and Immigration), above, at para. 15.
[8] The principal argument advanced on behalf of Mr. Vellanki is that the Visa Officer’s decision to refuse his application was inadequate because it failed, on its face, to conform with the discretion to deny a visa conferred by section 11(1) of the Immigration and Refugee Protection Act S.C. 2001, c.27 (IRPA) and because it provided reasons that were not clear and precise. In particular, it was argued that the decision letter failed to explain why the Visa Officer was “not satisfied” that Mr. Vellanki was not inadmissible. Reliance was also placed on the language of the Department’s “final reminder” letter of October 19, 2005 which stated that a failure to provide the requested documents would be taken as a lack of interest by Mr. Vellanki in pursuing the application and would lead to a refusal decision. It is argued that a supposed “lack of interest” is not a recognized ground for denying a visa application.
[9] Notwithstanding the creative arguments advanced on behalf of Mr. Vellanki, I can see nothing in the decision letter which takes it outside of the legislative mandate. Section 11(1) of the IRPA indicates that a foreign national must establish to the satisfaction of the Visa Officer that he is not inadmissible. This must be read together with section 16 of the IRPA which requires a visa applicant to produce all relevant evidence and documents that the officer reasonably requires, including photographs. The refusal decision in this case turned precisely on Mr. Vellanki’s failure to provide the information required by the Visa Officer and the decision letter clearly conveys that rationale. I take the language used by the Visa Officer in the earlier “final reminder” letter to be merely an informal expression of the same underlying point and it gave clear notice that a failure to respond would lead to a refusal decision. In simple terms the Visa Officer was “not satisfied” of Mr. Vellanki’s admissibility because he had not provided the information the officer reasonably required to be satisfied and to complete the remainder of her assessment.
[10] It was also contended that the decision to strictly enforce the stipulated deadline for production of documents was “unfair” when considered against the Department’s rather languid handling of Mr. Vellanki’s application. Although I agree with Mr. Vellanki’s counsel that this apparent double-standard might meet a populist definition of “unfair”, I do not believe that it violates any principle of natural justice or breaches a duty of procedural fairness. The letters from the Department made it abundantly clear to Mr. Vellanki that his application would be refused if the required information was not provided by the stipulated deadline. He was first advised of this on July 6, 2005 and then received an extension to December 30, 2005. He had almost six (6) months to fulfill tasks that could have been completed within a few days at most and the failure to do so cannot be attributed to any failing on the part of the Department. The refusal decision resulted solely from Mr. Vellanki’s failure to provide the information necessary to process his application.
[11] Although there was a subsequent delay of a few days in recording the refusal decision on the Department’s internet site, that representation did not cause Mr. Vellanki or his counsel to act or to fail to act in some detrimental way. As soon as it was discovered that the deadline had been missed corrective action was taken but, by then, the refusal decision had been finalized. Absent some measure of detrimental reliance, I cannot find that Mr. Vellanki’s reasonable expectations had been defeated by this slight delay in posting the decision on the Departmental website. On this point the decision in Mumin v. Canada (MCI) (1996), 35 Imm. L.R. (2d) 217, [1996] F.C.J. No. 611 (T.D.) is distinguishable. There the applicant relied upon erroneous or incomplete information provided by the Department and thereby missed a filing deadline. In this case the deadline had already passed and the decision was made when Mr. Vellanki’s counsel reviewed the status of the application on the internet and, therefore, no detrimental reliance arises.
[12] However discouraging this process has been for Mr. Vellanki, he does have the option of making a fresh application for a visa and I would encourage him to do so. Given the Department’s somewhat lethargic efforts in handling the previous application, one would hope that any new application by Mr. Vellanki would be processed with some degree of urgency and dispatch.
[13] This application is dismissed. Neither party proposed a certified question and no issue of general importance arises from this decision.
JUDGMENT
THIS COURT ADJUDGES that this application is dismissed.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1610-06
STYLE OF CAUSE: SRINIVAS KUMAR VELLANKI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATON
Respondent
DATE OF HEARING: February 26, 2007
REASONS FOR JUDGMENT
APPEARANCES:
Catherine M. Kerr For the Applicant
Leanne Briscoe For the Respondent
SOLICITORS OF RECORD:
Kerr & Associates
Barristers & Solicitors
Toronto, ON For the Applicant
John H. Sims, Q.C.
Deputy Attorney General of Canada For the Respondent