Date: 20000906
Docket: IMM-3803-99
Between :
PEI-YI HU
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD, J. :
[1] This is an application for judicial review of a decision of Visa Officer Denise Lamoureux of the Canadian Consulate General in New York. In the decision, dated March 6, 1998, the visa officer determined that the applicant was a member of an inadmissible class of persons, pursuant to paragraph 19(2)(d) of the Immigration Act, R.S.C. 1985, c. I-2, as he had failed to comply with subsection 22.2(1) of the Immigration Regulations, 1978, SOR/78-166 as amended. As a result, the officer refused the applicant's application for permanent residence in Canada.
[2] The applicant is a citizen of China. On February 7, 1996, he submitted an application for permanent residence in Canada.
[3] On his application form, the applicant listed his present address as Terre Haute, Indiana and his mailing address c/o Morgen & Kevin, an immigration consulting company in Elmhurst, New York. In July 1996, the applicant moved. The applicant did not advise the visa office of his change of residential address.
[4] On or about October 28, 1997, the applicant retained a lawyer from Ontario (Mr. Kabateraine). By letter dated November 3, 1997, Mr. Kabateraine advised the visa office that he now represented the applicant and to direct all correspondence to his Toronto office address. Enclosed with the letter was a declaration directing the visa office to disclose all personal information concerning the applicant to Mr. Kabateraine, as well as a notice signed by the applicant indicating that his mailing address had changed to that of Mr. Kabateraine's Toronto office. There is no indication of this address change in the CAIPS notes concerning the applicant.
[5] On November 24, 1997, after reviewing the file, an immigration officer decided to reopen the applicant's case, due to his connection with Morgen & Kevin.
[6] By letter dated December 12, 1997, the applicant was directed to appear for an interview at the Canadian Consulate General in New York on March 10, 1998. The visa office sent the letter to the applicant's residential address in Terre Haute. The letter was subsequently returned, as the applicant no longer lived at that address.
[7] On March 6, 1998, Denise Lamoureux reviewed the file and closed it. In the CAIPS notes, she wrote:
| SUBJECT WAS REFUSED IN 1996 AND FILE SHOULD HAVE NOT BEEN RE-OPENED. IN ADDITION, WE CAN NOT COMMUNICATE WITH SUBJ WHO DID NOT PROVIDE US WITH A VALID ADDRESS AND DOES NOT APPEAR TO BE TRUTHFUL SINCE THE IMM8 DOES NOT REALLY INDICATE WHERE HE ACTUALLY IS. WE ATTEMPTED MANY TIMES TO SEND HIM CORRESPONDENCE. IT IS HIS RESPONSIBILITY TO PROVIDE US WITH ACCURATE INFO. I AM WITHDRAWING. IF SUBJ CONTACTS US, SEND A REFUSAL FOR NO-SHOW AND NOT PROVIDING DOCUMENTS REQUESTED (SEE ABOVE) . . . |
[8] By letter dated March 23, 1999 and marked "URGENT!", Mr. Kabateraine's office wrote to the visa office. In the letter, Mr. James Zhu (a paralegal) stated that the applicant had taken a medical exam as requested at the end of 1996 and since that time had received nothing from the visa office. Mr. Zhu wrote that Mr. Kabateraine's office sent two faxes on August 10, 1998 and February 8, 1999 and had received no reply.
[9] By letter dated June 18, 1999, Mr. Zhu again wrote to the visa office inquiring as to the status of the applicant's file and indicating that he had received no response to the letter of March 23, 1999. Mr. Zhu also enclosed the authorization to release personal information which was submitted to the visa office in 1997.
[10] By letter dated June 21, 1999, Mr. James C. Gill, Consul, wrote to Mr. Kabateraine (who had inquired as to the status of the applicant's file). In the letter, Mr. Gill stated that Ms. Lamoureux refused the applicant's application on March 6, 1998, as the applicant had failed to provide a proper address. In the letter, Mr. Gill stated that "[a]t the time, your [Mr. Kabateraine's] address was equally unacceptable, because we had not received proof [sic] your Canadian citizenship".
[11] In my view, the visa officer's demands for proof of counsel's citizenship ignored the General Procedural Guidelines (the Guidelines) contained in the Ministry's own Immigration Manual. In refusing to send correspondence to the updated mailing address provided by way of letter and consent to disclosure contained in a letter dated November 3, 1997, the visa officer ignored sections 3.2 and 12 of the Guidelines which state respectively:
| 3. APPLICATIONS |
| 3.2 Anyone can apply anywhere. |
| Missions must accept applications from outside their territory, including applications sent from Canada. Correspond with applicants at the mailing address they give on their IMM 8s. . . . |
| 12. PRIVACY ACT |
| [. . .] |
| The Privacy Act does not prevent you from contacting clients at c/o addresses they provide on their applications. The person or firm named in the address does not have to be a Canadian citizen, permanent resident or corporate entity in Canada. |
[12] Although the Ministry's Guidelines are not binding on decisions of visa officers, guidelines such as sections 3.2 and 12 quoted above have real importance in determining whether the particular decision herein is supportable (see Baker v. Canada (M.C.I.) (1999), 174 D.L.R. (4th) 193, L'Heureux-Dubé J. at paragraph 72).
[13] Furthermore, in the face of the change of mailing address signed by the applicant and submitted by his counsel in the letter dated November 3, 1997, the respondent's arguments regarding the release of personal information is largely irrelevant as the central reason for re-closing the case was that the letters advising the applicant to attend for an interview were returned from his old mailing address.
[14] In paragraph 6 of the affidavit of James Gill, Canadian Consul in New York, the latter states that as of December 18, 1996, the Ministry refused to send any further correspondence to Morgen & Kevin, the applicant's then agents in New York, due to concerns about their fraudulent misrepresentation of clients in general. Instead, the Immigration Program Manager instructed visa officers to send any correspondence directly to the applicant's home address. As a result of having moved, the lack of response to such letters was the cause of the original closing of the applicant's file.
[15] After the file had been reopened by visa officers in November of 1997, however, there were no such concerns of illegality raised in either the CAIPS notes or the affidavit of James Gill that would justify overriding the signed change of address provided by the applicant.
[16] Given this, it is a clear breach of the duty of fairness to wilfully ignore the applicant's duly signed change of mailing address and to instead insist on sending the letters requiring the applicant to appear for an interview elsewhere. To then attempt to use the applicant's non-appearance at an interview he could not have known of as a result of the Ministry's error cannot justify the visa officer's decision to again close the file for this reason. This is particularly so in light of the CAIPS notes comments noted above that this "FILE SHOULD HAVE NOT BEEN RE-OPENED" which appear to show that she had already pre-judged the decision.
[17] For the above reasons, the application for judicial review is granted, the decision made by Visa Officer Denise Lamoureux on March 6, 1998 is set aside, and the matter is referred back to a different visa officer for redetermination.
[18] Counsel for the applicant has failed to satisfy me of the existence of special circumstances warranting any adjudication of costs.
JUDGE
OTTAWA, ONTARIO
September 6, 2000