Judgments

[1994] 1 F.C. 639

A-541-91

The Minister of Employment and Immigration and the Secretary of State for External Affairs (Appellants) (Respondents)

v.

Chang-Jie Chen (Respondent) (Applicant)

Indexed as: Chen v. Canada (Minister of Employment and Immigration) (C.A.)

Court of Appeal, Isaac C.J., Létourneau and Robertson JJ.A.—Toronto, November 15 and 18, 1993.

Citizenship and Immigration — Status in Canada — Permanent residents — Appeal from trial judgment quashing denial of permanent residence application pursuant to visa officer’s discretion under Immigration Regs., 1978, s. 11(3) after respondent sent US $500 in Christmas card to visa officer — S. 11(3) permitting refusal of visa to otherwise successful applicant if “good reasons” why units of assessment awarded not reflecting chances of becoming successfully established in Canada — Trial Judge erred in holding selection standards in Act, Regs. essentially related to immigrant’s ability to make living in Canada — While some factors economic, others, particularly personal suitability, referring to immigrant’s ability to establish himself socially — S. 11(3) discretion properly exercised — Respondent, having lived, taught at university in Canada, U.S.A. for some time, aware giving money to official for assistance in dealings with government criminal offence.

Judicial review — Prerogative writs — Certiorari — After awarded sufficient units of assessment pursuant to Immigration Regs., 1978, s. 9(1)(b)(i) and during lengthy wait for security clearance, respondent sending US $500 in Christmas card to visa officer — Called in for second interview ostensibly to continue assessment — No denial of procedural fairness in not telling respondent at outset of second interview apparent bribe major concern — Procedural fairness not requiring questions at interview be put in particular order nor that respondent be immediately confronted with alleged bribe — Respondent properly informed conduct would be taken into account in ultimate decision, confronted with alleged bribe, given opportunity to explain.

This was an appeal from the trial judgment quashing the visa officer’s rejection of the respondent’s application for permanent residence, and requiring a further interview by a different visa officer. The respondent, a citizen of China, applied for permanent residence and was awarded sufficient points to satisfy the requirements of Immigration Regulations, 1978 subparagraph 9(1)(b)(i) for the issuance of a visa for permanent residence. He successfully completed the interview and was advised that he had only to pass a medical test and security check. There was considerable delay in obtaining the security clearance. At Christmas he sent a card to the immigration officer who had interviewed him expressing his thanks for her efforts on his behalf and including US $500. At a second interview, ostensibly to continue the assessment, after initially denying the “gift”, the respondent explained that it was an oriental custom to give gifts to special friends during the holiday season. He later apologized for what he recognized to be wrongful behaviour. The respondent’s application was refused pursuant to the special discretion conferred by Regulations, subsection 11(3), which permits an immigration officer to refuse to issue an immigrant visa to an otherwise successful immigrant if, in his opinion, there are good reasons why the number of units of assessment awarded do not reflect the immigrant’s chances of becoming successfully established in Canada. The Trial Judge held that the selection standards and factors mentioned in the Act, Regulations and Schedule I, were essentially related to the ability of an immigrant to make a living in Canada. He also held that the administrative process which led to the negative decision was unfair. The respondent should have been told at the outset of the second interview that the major concern was the apparent bribe.

The issues were (1) the scope of the discretionary power given to a visa officer under subsection 11(3); and (2) whether the respondent had been denied procedural fairness.

Held (Robertson J.A. dissenting), the appeal should be allowed.

Per Létourneau J.A. (Isaac C.J. concurring): (1) While some of the factors and selection standards mentioned in Immigration Act, paragraph 114(1)(a) or Schedule I of the Regulations are economic, others like age, education, language, other personal attributes and personal suitability, refer to an immigrant’s ability or chances of successfully establishing himself socially in Canada. The reviewing Judge erred in limiting the selection standards and factors to the respondent’s ability to earn a living, particularly with respect to the respondent’s personal suitability (which includes adaptability, motivation, initiative and resourcefulness) to become successfully established in Canada. The words “good reasons” in subsection 11(3) import a measure of objectivity into the process and ensure that the exercise of discretion is justifiable in the circumstances and not arbitrary or capricious. The visa officer properly exercised his discretion under that subsection. The respondent was not unfamiliar with appropriate standards and practices in this country. He had taught at the university level in both Canada and the United States and had lived in North America long enough to know that the payment of a substantial sum of money to a public servant could amount to a bribe. The immigration officials had been correct in treating as a serious matter the apparent bribery of the immigration program officer.

(2) There was no denial of procedural fairness. Procedural fairness required neither that questions at an interview be put in a particular order nor that the respondent be confronted with the alleged bribery at the outset of the interview or upon arrival. There was nothing unfair in how the interview was conducted. The respondent was properly informed that his conduct would be taken into account in the ultimate decision. He was confronted with the alleged bribe and was given an opportunity to explain his conduct.

Per Robertson J.A. (dissenting): When deciding as to a person’s ability to successfully establish himself in Canada, the determination criteria must be restricted to matters relating to the ability to make a living. That determination should not be influenced by conduct which suggests moral turpitude. Immigration Act, 1976 sections 9 and 19 specifically address that type of concern by excluding those persons who have committed acts which Parliament has identified as warranting exclusion, neither of which could be invoked to exclude the respondent and his family. The alleged bribe was neither relevant nor an overriding factor in evaluating whether the respondent would be able to successfully establish himself in Canada. The prospect of judicial recognition of a criterion which hinges on notions of “good reasons” and “social success” or evaluation of the objective merit of visa officers’ subjective assessments was cause for concern.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Immigration Act, R.S.C., 1985, c. I-2, ss. 9(3), 19(2)(d), 84 (as am. by S.C. 1992, c. 49, s. 73), 114(1)(a).

Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 9(3), 19(2)(d).

Immigration Regulations, 1978, SOR/78-172, ss. 8(1)(a) (as am. by SOR/85-1038, s. 3), 9(1)(b)(i) (as am. by SOR/83-675, s. 3; 85-1038, s. 4), 11(3) (as am. by SOR/81-461, s. 1), Schedule I (as am. by SOR/85-1038, s. 8).

CASES JUDICIALLY CONSIDERED

CONSIDERED:

Kang v. Minister of Employment and Immigration, [1981] 2 F.C. 807; (1981), 37 N.R. 551 (C.A.).

REFERRED TO:

Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653; (1990), 69 D.L.R. (4th) 489; [1990] 3 W.W.R. 289; 83 Sask. R. 81; 43 Admin. L.R. 157; 30 C.C.E.L. 237; 90 CLLC 14,010; 106 N.R. 17; Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602; (1979), 106 D.L.R. (3d) 385; 50 C.C.C. (2d) 353; 13 C.R. (3d) 1; 15 C.R. (3d) 315; 30 N.R. 119.

APPEAL from trial judgment ([1991] 3 F.C. 350; (1991), 45 F.T.R. 91; 13 Imm. L.R. (2d) 172) quashing the rejection of the respondent’s application for permanent residence, and requiring an interview by a different visa officer. Appeal allowed.

COUNSEL:

Leigh A. Taylor for appellants (respondents).

Cecil L. Rotenberg, Q.C. and Connie Nikatsu for respondent (applicant).

SOLICITORS:

Deputy Attorney General of Canada for appellants (respondents).

Rotenberg & Martinello, Don Mills, Ontario, for respondent (applicant).

The following are the reasons for judgment delivered orally in English by

Létourneau J.A.: This is an appeal from the decision of a Judge of the Trial Division [[1991] 3 F.C. 350], delivered on May 10, 1991, who granted orders of certiorari and mandamus. The order of certiorari quashed the decision of a visa officer which rejected the application for permanent residence made by the respondent. The order of mandamus required that the appellants process the respondent’s application in accordance with the law, that is to say that a new interview be given and that the application be determined by a different visa officer.

This appeal raises three issues:

(a) What the scope of the discretionary power given to a visa officer is under subsection 11(3) of the Immigration Regulations, 1978 [SOR/78-172 (as am. by SOR/ 81-461, s. 1)], to refuse to issue a visa to an immigrant;

(b) Whether the respondent was denied procedural fairness in the process that led to the negative decision taken by the visa officer; and

(c) Whether the requirements referred to in paragraph 19(2)(d) of the Immigration Act,[1] as it then read, include the requirement to tell the truth as set out in subsection 9(3) of that Act.

The facts

There is no dispute as to the facts. The respondent is a citizen of the People’s Republic of China who worked in Canada from 1983 to 1985 at McMaster University. He subsequently worked in the United States on a temporary visa. While in the United States, he applied in July 1987, to the Canadian Consulate General in New York, for permanent residence in Canada as an independent immigrant. He was assessed pursuant to paragraph 8(1)(a) [as am. by SOR/85-1038, s. 3] of the Regulations and was awarded sufficient number of points to satisfy the requirements of subparagraph 9(1)(b)(i) [as am. by SOR/83-675, s. 3; 85-1038, s. 4] of the Regulations for the issuance of a visa for permanent residence. Ms. Sara Trillo, an immigration program officer who interviewed him, indicated to him that he had successfully completed the interview but that he and his family would have to pass a medical test and a security check.

There was considerable delay in obtaining the security clearance. In fact, in September 1988, the respondent’s United States work permit had expired and by December 1988, the respondent was still waiting for his security clearance. He then sent a Christmas card to Ms. Trillo with a note thanking her for her efforts and including a sum of US $500.

Ms. Trillo immediately brought this to the attention of her superior. The respondent was then requested to attend an interview at the Canadian Consulate General in New York City on December 29, 1988, the purpose of which, he was told, was to continue the assessment of his application for a visa. At that interview, the respondent’s application was reviewed. He was reassessed according to the factors established in the Immigration Regulations, 1978, and he obtained results similar to those achieved in the initial interview with Ms. Trillo.

During the interview led by Mr. Spunt, a Consul (Immigration) on assignment at the Canadian Consulate General, the subject of the apparent bribe was gradually introduced and discussed. The respondent was first asked if he had given any gifts to Ms. Trillo or if he had misplaced any funds recently. Although he denied any such thing at first, the respondent eventually admitted the fact that he had sent some money to Ms. Trillo. He then proceeded to explain that it was an oriental custom to give gifts to special friends during the holiday season. As Ms. Trillo had made extensive efforts on his behalf, he thought it proper to make this kind of a gift. He further explained that the money was given to cover any special costs incurred in expediting his application. Later in the interview he apologized for what he recognized to be wrongful behaviour.

In accordance with subsection 11(3) of the Immigration Regulations, 1978, Mr. Spunt wrote to Mr. Nauman, a Senior Immigration Officer, to seek his approval to exercise the special discretion conferred by that subsection to refuse to issue an immigrant visa to the respondent. The approval was obtained and a refusal letter was sent to the respondent on February 14, 1989. By that letter, the respondent’s application for permanent residence was dismissed. It is that decision that the respondent successfully challenged by way of judicial review proceedings before a judge of the Trial Division.

The scope of the discretionary power given to a visa officer under subsection 11(3) of the Immigration Regulations, 1978.

Subsection 11(3) of the Immigration Regulations, 1978, reads:

11. …

(3) A visa officer may

(a) issue an immigrant visa to an immigrant who is not awarded the number of units of assessment required by section 9 or 10 or who does not meet the requirements of subsection (1) or (2), or

(b) refuse to issue an immigrant visa to an immigrant who is awarded the number of units of assessment required by section 9 or 10,

if, in his opinion, there are good reasons why the number of units of assessment awarded do not reflect the chances of the particular immigrant and his dependants of becoming successfully established in Canada and those reasons have been submitted in writing to, and approved by, a senior immigration officer.

Under that subsection, the visa officer has the power to refuse a visa to an otherwise successful immigrant if, in his opinion, there are good reasons why the number of units of assessment awarded do not reflect the chances of the particular immigrant and his dependants of becoming successfully established in Canada. The debate turns on the proper meaning to be given to the words “becoming successfully established in Canada.”

It is worth remembering that the selection standards found in the Immigration Regulations, 1978, are authorized by paragraph 114(1)(a) of the Act[2] and contain a number of factors in a Schedule I [as am. by SOR/85-1038, s. 8] of the Regulations such as: education, specific vocational preparation, experience, occupational demand, arranged employment, demographic factor, age, knowledge of English and French languages and personal suitability. This latter factor refers to the personal suitability of the person and his dependants “to become successfully established in Canada based on the person’s adaptability, motivation, initiative, resourcefulness and other similar qualities.”

In his analysis of the selection standards and factors mentioned in the Act, the Regulations and Schedule I, the reviewing Judge first found that they “appear to be essentially related to the ability of an immigrant to make a living in Canada or to be economically sustained other than by the State”.[3] [My emphasis.]

It is true that some of the factors and selection standards mentioned in paragraph 114(1)(a) of the Act, or Schedule I of the Immigration Regulations, 1978, are economic factors and do refer to an immigrant’s ability to economically sustain himself or herself in Canada. However, others like age, education, language, other personal attributes and attainments and personal suitability are broader in scope. Although they may be relevant to assess one’s ability to economically sustain oneself, they are not so limited. They also refer to social success, that is to say to an immigrant’s ability or chances of successfully establishing himself or herself socially in Canada.

The personal suitability to become successfully established in Canada, as defined in Item 9 of Schedule I and as already mentioned, refers to a person’s adaptability, motivation, initiative, resourcefulness and other similar qualities. Surely, such qualities are not limited to one’s adaptability, initiative or motivation to work or to earn a living.

To define the selection standards and the factors in the Act, the Regulations and Schedule I as economic factors only and to go on to assess from that perspective only an immigrant’s chances “to become successfully established in Canada” amount to a narrowing of the statutory test. Such a position entails reading the phrase “to become successfully established in Canada” as though the term “economically” appears in it. Subsection 11(3) refers to a successful establishment in Canada, not to a “successful economic establishment in Canada”.

With respect, the reviewing Judge erred in limiting the selection standards and the factors to the respondent’s ability to make a living in Canada. This is especially so with respect to the respondent’s personal suitability to become successfully established in Canada. After having said that the factors were essentially or primarily economic in nature, the reviewing Judge then went on to conclude in fact that they were exclusively economic factors. This appears clearly from the following passage in his decision:

Given this emphasis on economic factors as identified by both Parliament and the Governor in Council for determining whether an immigrant can become “successfully established” in Canada, it is difficult to read the discretionary power granted to a visa officer by subsection 11(3) of the Regulations as allowing him to ignore the number of units of assessment and to determine, for essentially non-economic reasons, that an immigrant does not have a chance of becoming successfully established in Canada.[4]

In my view, a visa officer exercising his discretion under subsection 11(3) of the Regulations can refuse to issue a visa to an immigrant if there are good reasons why the number of units of assessment awarded do not reflect the immigrant’s chances, either economically or socially, of becoming successfully established in Canada. In determining whether there are good reasons to so conclude, the visa officer is required to form a personal opinion which must have an objective foundation. To put it another way, the words “good reasons” import a measure of objectivity in the process and ensure that the exercise of discretion under subsection 11(3) is justifiable in the circumstances and not arbitrary or capricious.

In the case at bar, the visa officer properly exercised the discretion conferred upon him by subsection 11(3) of the Regulations. He acted in accordance with the law by complying with the procedural requirements established by that subsection and by basing his conclusion on the following objective facts. The respondent was not unfamiliar with appropriate standards and practices used in this country. He had lived in Canada and in the United States long enough to know that the payment of a substantial sum of money to a public servant could amount to a bribe. Nor was he illiterate. In fact, he taught at McMaster University in Canada and at the University of Illinois in the United States. The immigration officials treated the apparent bribery of one of their employees as a serious matter and indeed it was. I see no reason to interfere with the officer’s exercise of his discretionary power under subsection 11(3) of the Regulations.

Whether the respondent was denied procedural fairness in the process leading to the negative decision taken by the visa officer.

The reviewing Judge was of the opinion that the administrative process which led to the negative decision was unfair. In his view, the respondent should have been told at the outset of the interview on December 29, 1988, that the major concern of the immigration officer conducting that interview was the apparent bribe. In addition, he felt that it was improper to proceed by indirection as it was a review of an earlier favourable assessment where the respondent had been “provisionally accepted”.

It is trite now to say that the content of procedural fairness is variable and is to be decided according to the circumstances of each case.[5]

With respect, procedural fairness does not require that questions at an interview be put in a particular order. Nor did it require, in the present case, that the respondent be immediately confronted with the alleged bribery at the outset of the interview or upon arrival. There was nothing unfair in the strategy or approach adopted by the immigration officer conducting the interview, provided the respondent was confronted with the apparent bribe; was given the opportunity to explain his conduct; and was made aware of the fact that his behaviour would be taken into consideration on reassessing his application.

After reviewing the evidence, I am satisfied that the respondent was properly informed that his conduct would be taken into account in the ultimate decision. In addition, the respondent was specifically asked whether he had given Ms. Trillo a gift of money, whether he had sent her a gift of any value or whether he had included a gift with the card he finally acknowledged he probably sent to Ms. Trillo. His answer to each of those questions was negative. However, he later admitted to the fact.[6] I am satisfied that the respondent was thus confronted with the alleged bribe and was given an opportunity to explain why he had sent that money to Ms. Trillo and why he had denied this fact when he had been first questioned. There was no denial of procedural fairness that the respondent can complain of.

Whether the requirements referred to in paragraph 19(2)(d) of the Act include the requirement to tell the truth as set out in subsection 9(3) of that Act.

Counsel for the appellants conceded that the facts of this case are similar to those in Kang v. Minister of Employment and Immigration.[7] In that case, this Court decided that a person who, in applying for a visa, lies in violation of subsection 9(3) of the Immigration Act, 1976 [S.C. 1976-77, c. 52], does not, by that fact alone, fall within the category of inadmissible persons described in paragraph 19(2)(d) of that Act. Counsel for the appellants submitted that the decision in Kang was wrongly decided and invited us to revisit it. In view of the conclusion that I have come to on the issue of discretion pursuant to subsection 11(3) of the Regulations as well as on the issue of procedural fairness, there is no need to deal with that submission.

The appeal will be allowed with costs to the respondent in accordance with section 84 of the Immigration Act [as am. by S.C. 1992, c. 49, s. 73]. The decision of the learned Judge of the Trial Division granting orders of certiorari and mandamus will be set aside.

Isaac C.J.: I agree.

* * *

The following are the reasons for judgment delivered orally in English by

Robertson J.A. (dissenting): With respect, I am unable to agree.

While I cannot condone the actions of the respondent, neither can I accept that subsection 11(3) of the Immigration Regulations, 1978 was intended to vest visa officers with such a broad residual discretion when deciding whether to grant or deny visas. I am in agreement with the learned Trial Judge when he stated (at page 359):

More specifically, the basic question is—on what grounds can the visa officer exercise his discretion in forming the opinion that there are “good reasons” why the number of units awarded do not reflect adequately the chances of an immigrant becoming “successfully established” in Canada? It is inconceivable that this was intended to give a visa officer an unlimited mandate to decide whether a particular immigrant is generally suitable or not as a future member of Canadian society, given the existence of other, extensive, provisions in the Act for identifying those who are suitable or unsuitable. It may first be observed that subsection 11(3) cannot be taken to overlap the grounds of mandatory exclusion set out in the description of the “inadmissible classes” found in section 19.

In short, I am of the view that when deciding persons’ ability to successfully establish themselves in Canada the determination criteria must be restricted to matters relating to their ability to make a living. That determination cannot and should not be influenced by conduct which suggests moral turpitude. Sections 9 and 19 of the Immigration Act, 1976 specifically address that type of concern by excluding those persons who have committed acts which Parliament has identified as warranting exclusion. In the case at bar, it has been conceded by the Minister that neither subsection 9(3) nor paragraph 19(2)(d) of the Act, as it then read, can be invoked to exclude the respondent and his family. On this point, the decision of this Court in Kang v. Minister of Employment and Immigration, [1981] 2 F.C. 807, is binding. That being so, I do not think it is open to this Court to invoke subsection 11(3) with the effect of reaching a result which cannot otherwise be achieved.

On the facts before us, the visa officer invoked the respondent’s conduct as the basis for overriding an assessment which at all times remained favourable. I fail to understand how the “alleged bribe” can be viewed as either a relevant or overriding factor when evaluating whether the respondent will be able to successfully establish himself in Canada. I am also troubled by the prospect of giving judicial recognition to a criterion which hinges on notions of “good reasons” and “social success”. To be precise, my colleagues have expressed this view as follows (at page 646):

[The Regulations] also refer to social success, that is to say to an immigrant’s ability or chances of successfully establishing himself or herself socially in Canada.

Undoubtedly, there are those who will view the disposition of this appeal in terms of achieving a just result. My concerns are also rooted in the prospect of being called upon to evaluate the objective merit of visa officers’ subjective assessments.

For the above reasons, I would dismiss the appeal with costs.

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