Date: 20031219
Docket: IMM-1263-02
Citation: 2003 FC 1504
Ottawa, Ontario, this 19th day of December, 2003
Present: The Honourable Mr. Justice Mosley
BETWEEN:
JIANBO QIN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Jianbo Qin seeks judicial review of the decision of Visa Officer, Robert Romano, (the "Visa Officer") dated February 7, 2002. In that decision, Mr. Qin's application for permanent residence in Canada was refused. The applicant seeks an order of certiorari quashing the decision of the Visa Officer and an order of mandamus directing that the respondent process the application for permanent residence in Canada in a favourable manner. In the alternative, Mr. Qin seeks an order remitting his application back for assessment by a different visa officer in accordance with the directions of this Court. He has also asked for his costs on a solicitor and client basis.
BACKGROUND
[2] Mr. Qin, a citizen of the People's Republic of China, applied for permanent residence in Canada under the "entrepreneur" category in August 2000. His wife and minor daughter were included in the application. The "business plan" attached as supporting documentation to the application described his intended business venture as follows:
Taking advantage of my 12 years of education and over 17 years of full time work experience, it is my intention to establish a business in the City of Toronto which deals with the wholesale and retail sale of electronics, personal grooming care products, similar to the business that I have run in China for the past 7 years.
Through my China corporation Zibo Rongchang Business and Trading Co. Ltd. I have secured the franchise rights to market and sell Philips Electronic products in the City of Zibo, Shandong Province. Philips is Europe's largest consumer electronics company. My corporation in Zibo has the specific rights to sell Philips electronic shavers, hair dryers, juice machines, curling irons, vacuum cleaners and other home related products.
[3] On January 31, 2002, Mr. Qin attended an immigration interview in New York City. This interview was conducted by Michele Defreitas, an employee of the Canadian Consulate General in New York . Ms Defreitas and Mr. Romano depose, in affidavits filed in this proceeding, that the purpose of this interview was to gather information from the applicant on the basis of which a visa officer, in this case, Mr. Romano, would render a decision. Ms. Defreitas was not, at that time, formally authorized by the Minister to issue visas but was employed in carrying out various related tasks normally performed by visa officers.
The Visa Officer's Decision
[4] Mr. Qin's application was refused in a letter dated February 7, 2002. The Visa Officer was not satisfied that the applicant met the definition of an "entrepreneur" as defined in section 2(1) of the former Immigration Regulations, 1978, SOR/78-172 (the "former Regulations") because he was unable to explain how he intended to establish and manage an electronics store in Toronto. Further, the Visa Officer stated that the applicant had done only "limited research" on the retail electronic goods market in Toronto and the export of electronic products from Canada to China. The Visa Officer also found that the applicant had no knowledge of the regulations and licenses required to operate his intended business in Canada, that he was unable to articulate at his interview how he planned to earn $120,000 (Cdn) in the first year of his business, as he had claimed, and that he was unable to provide a realistic explanation of how he would deal with competition in Toronto.
APPLICANT'S SUBMISSIONS
[5] In his written argument, Mr. Qin submitted that the Visa Officer made a number of errors in his interpretation and application of the definition of "entrepreneur" in the former Regulations. However, the hearing focussed primarily on the failure of the Visa Officer to personally conduct an interview with the applicant.
[6] The applicant argues that section 11.1(b) of the former Regulations required that a visa officer conduct an interview of a person applying as an entrepreneur. The applicant submits that the Visa Officer improperly relied on the interviewing officer's findings in fulfilling his obligation to conduct an interview under the former Regulations.
[7] Mr Qin submits that the maxim of procedural fairness, "he who hears must decide" was breached. The applicant refers to General Procedural Guidelines of Citizenship and Immigration Canada, OP1 (the "OP1 Guidelines"). He says that these guidelines support his submission, in that they instruct officers that fact-finders cannot make the selection decisions for the ultimate decision-maker, and that deciding officers cannot appear to rely on an intermediary's subjective assessment.
[8] The applicant submits that the Visa Officer also breached the duty of fairness in not giving him an opportunity to disabuse him of the concerns he had with his application. In support of this principle, the applicant relies on Muliadi v. Canada (Minister of Employment and Immigration), [1986] 2 F.C. 205 (C.A.). The applicant could not have known what problems the Visa Officer had with his application, as the Visa Officer did not interview him.
[9] Further, the applicant points out that the Visa Officer, on cross-examination of his affidavit, admitted that his understanding that the applicant was not readily providing information "must have" come from a conversation that he had with the interviewing officer after the interview, as such observation does not appear in the Computer Assisted Immigration Processing System ("CAIPS") notes. He points to a contradictory statement made by the interviewing officer on cross-examination of her affidavit, that is, that she never spoke with the Visa Officer after the interview.
RESPONDENT'S SUBMISSIONS
[10] The respondent submits that the applicant must do more than establish the possibility that the Court may have reached a different conclusion than the Visa Officer. Provided the visa officer exercised his discretion in good faith and in accordance with the principles of natural justice, and did not rely on considerations that are irrelevant or extraneous to the statutory purpose, this Court should not interfere: To v. Canada (Minister of Employment and Immigration), [1996] F.C.J. No. 696 (C.A.)(QL).
[11] The respondent argues that the evidence shows that the Visa Officer was aware of the applicant's past business experience and pursuant to Wang v. Canada (Minister of Citizenship and Immigration) (2000), 190 F.T.R. 142, this is a relevant consideration. The respondent also relies on Chiu v. Canada (Minister of Citizenship and Immigration) (1996), 121 F.T.R. 39, which held that a visa officer does not commit a reviewable error in requesting that an applicant demonstrate the viability of his proposed business venture.
[12] In this case, the interviewing officer asked relevant questions and gathered the necessary information which the Visa Officer required to assess the applicant's application and therefore the Visa Officer did not base his decision on any erroneous finding of fact, made in perverse or capricious manner or without regard to the material before him.
[13] The respondent submits that the principle "he who hears must decide"applies in the domain of judicial and quasi-judicial decision-making, but not in the context of immigration applications. In support, the respondent relies on Silion v. Canada (Minister of Citizenship and Immigration) (1999), 173 F.T.R. 302. The respondent contends that the fact that the Visa Officer discussed the case with the interviewing officer does not make the decision procedurally unfair. Here, the respondent relies on Ali v. Canada (Minister of Citizenship and Immigration) (1998), 151 F.T.R. 1. Further, the respondent asserts that the interviewing officer's role was in the nature of an "information gatherer" for the Visa Officer who made the ultimate decision.
[14] Procedural fairness requires that when an officer receives "extrinsic evidence" from a third party and relies on such information in making his decision that the officer inform the applicant of such information and give him or her an opportunity to respond to such information before the final decision is made: Muliadi, supra, Huang v. Canada (Minister of Citizenship and Immigration) (1998), 41 Imm. L.R. (2d) 247 (F.C.T.D.). In the respondent's submission, the conversation between the interviewing officer and the Visa Officer is not properly characterized as "extrinsic evidence" upon which the Visa Officer relied in making his decision, in light of Ali, supra.
ISSUES
[15] 1. Did the Visa Officer err in law in interpreting the former Act and Regulations?
2. Did the Visa Officer base his decision on any erroneous finding of fact, made in a perverse or capricious manner or without regard to the material before him?
3. Did the Visa Officer breach any principle of procedural fairness owed to the applicant?
ANALYSIS AND DISPOSITION
[16] In my view, this application for judicial review should be allowed, on the basis that the Visa Officer erred in not performing the interview of the applicant, pursuant to section 11.1(b) of the former Regulations. Section 11.1(b) of the former Regulations stated as follows:
| 11.1 For the purpose of determining whether an immigrant and the immigrant's dependants will be able to become successfully established in Canada, a visa officer is not required to conduct an interview unless, based on a review of the visa application and the documents submitted in support thereof, ... (b) the immigrant is an entrepreneur, an investor, a provincial nominee or a self-employed person
[Emphasis added]
|
|
11.1 Afin de déterminer si un immigrant et les personnes à sa charge pourront réussir leur installation au Canada, l'agent des visas n'est pas obligé de tenir une entrevue, sauf si l'immigrant, d'après l'étude de sa demande de visa et des documents à l'appui : ...
b) soit est un candidat d'une province, un entrepreneur, un investisseur ou un travailleur autonome.
[Je souligne] |
|
|
|
|
[17] "Visa officer" was defined in section 2(1) of the former Act as follows:
| "visa officer" means an immigration officer stationed outside Canada and authorized by order of the Minister to issue visas;
|
|
"agent des visas" Agent d'immigration en poste à l'étranger et autorisé par arrêté du ministre à délivrer des visas. |
[18] "Immigration officer" was also defined in the former Act, section 2(1) as follows:
| "immigration officer" means a person appointed or designated as an immigration officer pursuant to section 109;
|
|
"agent d'immigration" Personne nommée ou désignée en vertu de l'article 109. |
[19] Finally, subsections 109(1) and (2) of the former Act provided:
| 109 (1) Immigration officers shall be appointed or employed under the Public Service Employment Act.
109 (2) Notwithstanding subsection (1), the Minister may designate any person or class of persons as immigration officers for the purposes of this Act and that person or class of persons shall have such of the powers, duties and functions of an immigration officer as are specified by the Minister.
|
|
109 (1) Les agents d'immigration sont nommés conformément à la Loi sur l'emploi dans la fonction publique.
109 (2) Par dérogation au paragraphe (1), le ministre peut, pour l'application de la présente loi, désigner certaines personnes, à titre individuel ou collectif, comme agents d'immigration et leur conférer tout ou partie des attributions attachées à ce poste. |
[20] From a reading of these sections of the former legislative scheme, it is clear that Parliament intended that "visa officers" be required to interview applicants in certain, prescribed circumstances. Section 11.1 sets out such circumstances. (See: Grube v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1089 (T.D.)(QL), where this Court held that section 11.1(b) required that a visa officer grant self-employed applicants an interview prior to determining their applications).
[21] In this case, the interviewing officer, Ms. Defreitas, acknowledged on the cross-examination of her affidavit, that at the time she interviewed the applicant on January 31, 2002, she had not yet been authorized as a visa officer. At pages 10-12 of her cross-examination, the interviewing officer stated that she became a "designated immigration officer", pursuant to section 109 of the former Act in April 2002. Despite this evidence, the respondent maintained at the hearing that Ms. Defreitas was a "visa officer" at the time the interview was conducted. In a letter submitted to this Court after the hearing, the respondent acknowledged that at the time of the interview, Ms. Defreitas was not a visa officer, but an "immigration program officer". The respondent maintains that as such, Ms. Defreitas had the authority to conduct the interview under the principles outlined in Ali, supra.
[22] In the cases of Silion, supra, and Ali, supra, this court approved of the practice of one officer conducting a fact-gathering interview with an applicant, and another officer rendering the final decision, relying on the information gathered by the first officer. However, these cases dealt with applicants who did not fall within section 11.1(b) of the former Regulations. As stated by Justice Teitelbaum in Ali, supra, at paragraphs 27-28:
The second issue is whether the visa officer violated the duty of fairness by delegating the hearing of the interview to Ms. Solis. In D. J. Mullan, Administrative Law, 2d ed. (Carswell, 1979) the authors state the following at page 3-112:
[a] statutory decision-maker may legitimately in some cases delegate the task of collection, sorting, sifting and summarizing of evidence to someone else provided the extent of the delegation is not such that the final decision is in effect taken by the delegate rather than the statutory decision-maker. In other words, the statutory decision-maker is obliged to take the decision personally on the basis of an adequate knowledge of all sides of the matter in controversy. [Footnotes omitted.]
The aforementioned statement should also be read in the light of Hugessen J.A.'s statement in Shah v. M.E.I. (1994), 29 Imm.L.R. (2d) 82 (F.C.A.) at page 83 that "the content of the duty of fairness varies according to the circumstances".
There is no statutory right to an oral interview. I also note that the visa officer stated in his Statutory Declaration that he reviewed the file and the notes from the interview and then concluded that the applicant was not eligible for an employment authorization. I do not believe that there is sufficient evidence to indicate that the visa officer failed to assess the claim on the merits. In addition, given my finding on the first issue it cannot be said that the applicant was not given the right to argue his case. I therefore conclude that the visa officer was entitled to delegate the interview to Ms. Solis.
[23] I agree with the respondent that generally the duty of fairness does not prohibit the delegation of tasks, including the delegation of collecting and summarizing facts, provided the final decision is made by the properly designated decision-maker. This means that in the usual course having a fact-finding interview conducted by one officer, when the final decision is within the mandate of another, does not breach the duty of fairness. However, when there is express statutory authority that an interview is to be "conducted" by a "visa officer" and the term "visa officer" is so precisely defined in the legislation, in my view, such terminology is therefore intended to have meaning and purpose.
[24] As pointed out by counsel for the applicant, the cases relied on by the respondent in support of the argument that the interview in this case was properly delegated, all deal with applications to which section 11.1 of the former Regulations did not apply. These cases are therefore distinguished on this basis.
[25] With respect to the applicant's other arguments, they are without merit. Pursuant to To, supra, a visa officer's decision not to grant an application for permanent residence is a discretionary decision that is subject to a deferential standard of review, that is, the standard articulated in Maple Lodge Farms Limited v. Government of Canada et al., [1982] 2 S.C.R. 2, at pages 7-8. In this case there is no indication that the Visa Officer based his decision on any erroneous findings of fact, made in a perverse or capricious manner or without regard to the material before him. However, discretionary decisions must be made pursuant to the procedure mandated in the legislation that defines the parameters of the discretion. For the reasons set out in the preceding analysis, the Visa Officer failed to adhere to the legislation.
[26] As set out in the case law cited by the respondent, it is not a reviewable error for a visa officer to request that an applicant explain the viability of his proposed business venture and an applicant's knowledge, or lack thereof, of the Canadian business environment is a relevant consideration for a visa officer in assessing business applicants.
[27] Further, the applicant fails in his attempt to characterize information that may have verbally passed between the interviewing officer and the Visa Officer, related to the interview of the applicant, as "extrinsic evidence" to which the applicant should have been given an opportunity to respond. The principle stated in Muliadi, supra, is that the duty of fairness requires a decision-maker to inform an applicant of information that has been gathered from a third party, and give the applicant an opportunity to "disabuse the officer of his concerns". In Muliadi, a negative assessment of an applicant's business by a provincial official was a basis for the visa officer's final decision and therefore the applicant should have been given an opportunity to review the assessment and respond to it. In the present case, Mr. Qin can reasonably be expected to have understood the concerns of the interviewing officer from the questions asked at the interview and such concerns flow directly from the former Act and Regulations, related to whether the applicant fit the definition of "entrepreneur".
[28] The applicant has not demonstrated that this case meets the requirements of the rather extraordinary remedy of mandamus as set out by this Court in Apotex Inc. v. Canada (A.G.), [1994] 1 F.C. 742 (C.A.), aff'd [1994] 3 S.C.R. 1100 and, indeed, this remedy was not pressed by the applicant's counsel at the hearing.
[29] The applicant has requested that he be awarded costs in this matter, as he maintains that he was "severely prejudiced" by the Visa Officer's error, in that he has had to incur the expense of attending in New York City for his interview and the expense of this application for judicial review. I am not satisfied that this inconvenience amounts to "special reasons" within the definition of Rule 22 of the Federal Court Immigration and Refugee Protection Rules, SOR/2002-232. Therefore, no costs will be awarded.
ORDER
This application for judicial review is allowed. The decision of the Visa Officer dated February 7, 2002 is quashed and the applicant's application is sent back for redetermination by another visa officer in accordance with the reasons of this Court. No question is certified.
"Richard G. Mosley"
Judge
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-1263-02
STYLE OF CAUSE: JIANBO QIN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: DECEMBER 16, 2003
REASONS FOR ORDER
AND ORDER BY: MOSLEY, J.
DATED: DECEMBER 19, 2003
APPEARANCES BY: Mr. Joseph R. Young
For the Applicant
Ms. Angela Marinos
For the Respondent
SOLICITORS OF RECORD: Mr. Joseph R. Young
Barrister & Solicitor
1200 Bay Street, Suite 608
Toronto, Ontario
M5R 2A5
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent