Date: 19981229
Docket: IMM-3559-97
BETWEEN:
CHAN WING TEI,
| Applicant, |
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
MULDOON, J.
[1] The applicant challenges by way of judicial review the decision of vice-consul Gregory Jeno Chubak ("visa officer") dated 17 July 1997, which denied the applicant"s application for permanent residence because his dependent spouse was criminally inadmissible, pursuant to s.19(2)(a.1)(i) of the Immigration Act R.S.C. 1985, c. I-2 (the "Act").
Background
[2] The applicant, Chan Wing Tei, submitted an application, on 31 October 1995, for permanent residence in Canada under the investor category, and included his wife and three children as dependents. The Government of Quebec issued selection certificates to the family on 26 September 1996, and their application was submitted to the Consulate General of Canada in Hong Kong for final processing.
[3] On 3 December 1996, the applicant and his wife, Leong Un Ieng, were requested to provide certificates of good conduct, issued by Hong Kong authorities. The applicant"s immigration consultants, VISA, sent a letter to the visa post indicating that the applicant"s wife had a conviction for making a false statement for the purpose of obtaining a Certificate of Identity, and had been sentenced to pay a fine of HK $1 500 (approximately CD $365). The immigration consultant advised that a rehabilitation submission would be forwarded for consideration.
[4] The offence for which the applicant"s wife was convicted occurred on 2 July 1990. She was set to take a vacation, but her Portuguese passport had expired and she was told that it would be some time before a new one could be issued to her. Not wanting to miss out on her trip, the applicant"s wife went to the Hong Kong Immigration Department and stated falsely that she was born in mainland China, when in fact she was born in Macau, and received a Certificate of Identity which allowed her to travel.
[5] In 1992, the applicant"s wife voluntarily went to the Hong Kong immigration authorities to return the Certificate of Identity and "set the record straight." An investigation ensued which culminated in her being charged, convicted, and fined. She paid the fine in full on 16 April 1992, and has not had any adverse involvements with the law since that time.
[6] On 1 April 1997, an application for approval of rehabilitation (IMM 1444) was submitted on behalf of the applicant"s wife. Supporting documentation included a statutory declaration by Leong Un Ieng, detailing the circumstances of the offence, a document with the particulars of the charge, a Royal Hong Kong Police Certificate, and a receipt confirming payment of the fine, as well as a document establishing her involvement with a seniors" charitable organization. Of interest is the Police Certificate for it bears a stamp which, translated, reads: "THIS CONVICTION IS REGARDED AS SPENT IN HONG KONG BY VIRTUE OF SECTION 2(1) OF THE REHABILITATION OF OFFENDERS ORDINANCE" (affidavit of Leong Un Ieng, exhibit A, applicant"s record ["AR"], p. 15).
[7] The applicant and his wife were interviewed by the visa officer on 2 June 1997. The purpose of the interview was to determine whether the visa officer would recommend to the program manager that Leong Un Ieng was rehabilitated. The result of the interview was a negative recommendation, and on 16 July 1997, the program manager, Brian J. Davis, concurred with this recommendation. A letter was sent the following day to the applicant advising him of this decision.
Issues
Are there any impediments to bringing this judicial review?
[8] If no, did the visa officer err in making the negative recommendation regarding rehabilitation to the program manager?
Analysis
Are there any impediments to bringing this judicial review?
[9] The applicant"s originating notice of motion, dated 20 August 1997, challenges the visa officer"s decision of 17 July 1997, which refused the applicant"s application for permanent residency. The originating notice of motion sets out four grounds for setting aside the visa officer"s decision. First, the visa officer failed to consider relevant factors in his recommendation to the program officer; second, the visa officer took into account irrelevant considerations; third, the visa officer failed to provide the program manager with relevant information so as to allow the program manager to properly exercise his delegated authority; and fourth, the visa officer did not provide the applicant or the applicant"s wife the opportunity to respond to his concerns regarding her rehabilitation.
[10] In argument before the Court counsel for the applicant expressly stated that what she sought to challenge was the visa officer"s negative rehabilitation recommendation to the program manager.
[11] The respondent argues that the applicant is improperly challenging the program manager"s decision within the context of an application for judicial review challenging the visa officer"s decision. The visa officer, according to the respondent, had no alternative but to issue a refusal letter once he became apprised of the program manager"s decision that he was not satisfied as to Leong Un Ieng"s rehabilitation. The program manager is the Minister"s delegate, pursuant to s.121(1) of the Act, and any decision he makes is deemed to have been made by the Minister, pursuant to s.121(2).
[12] In Leung v. Canada (Minister of Citizenship and Immigration), (1998) 147 F.T.R. 124 (F.C.T.D.) Mr. Justice Gibson of this Court dismissed an application for judicial review of a visa officer"s rejection of an application for permanent residence. In that case, the applicant had been convicted in Hong Kong of theft, forgery of a document, and uttering a forged document. He was sentenced to four months imprisonment on each conviction, with the sentences to run concurrently. Impressed by the applicant, the visa officer had recommended that rehabilitation be granted; however, the Minister did not concur, and the application was refused.
[13] In the decision, Gibson J. held:
| The responsibility for being satisfied as to rehabilitation is here vested in the Minister. Her responsibility is discretionary. She need only be satisfied, but she must be satisfied for inadmissibility to be lifted. Rehabilitation involves an assessment as to future comportment based upon actions, attitudes and comportment since conviction. It is worthy of note that the responsibility for rehabilitation decisions has been vested in the Minister, and not in officials such as visa officers. It was for the Minister to determine whether or not she was satisfied and the fact that the visa officer who prepared the submission to her was himself satisfied is of no consequence. |
| * * * |
| If the applicant was concerned with regard to the Minister"s determination, it was open to him to seek judicial review of that determination. |
[14] It should be noted that Gibson J. certified the following question: Is a visa officer under a duty to question the reasonableness of the Minister"s decision made pursuant to section 19(1)(c.1)(i) where on the face of the record the decision may be unreasonable? Mr. Justice Gibson"s decision was rendered on 20 April 1998, and is currently under appeal (A-283-98).
[15] In the case at bar, the applicant is really trying to challenge the Minister"s decision refusing to grant rehabilitation. The Minister is the decision-maker in the instant scenario, while the visa officer"s role is that of adviser in that he made a recommendation and submitted the application along with its supporting documents. If the visa officer drew unreasonable conclusions or relied on erroneous facts or, indeed, failed to take into account relevant facts, then these defects or errors would be germane in a review of the decision itself, which was made by the Minister"s delegate. By challenging the visa officer"s recommendation, the applicant is also putting into play the validity of the Minister"s decision, and this Court has held that applications for judicial review are limited to one decision: Gonsalves v. Canada (Minister of Citizenship and Immigration) (1997), 130 F.T.R. 269 (para. [10]), 40 Imm. L.R. (2d) 202, referring to s.18.1 of the Federal Court Act, R.S.C. 1985, Chap. F-7.
[16] Based on the foregoing reasons, it thus appears that the answer is: yes, there is an impediment to bringing this application for judicial review, and it is accordingly dismissed. The applicant should have sought judicial review of the Minister"s determination. In such multi-part, sequential-stage decisions there is a snare set by old rule 1602(4) and present rule 302. The Court might have inclined to make an "otherwise" order under rule 302, had there been merit in the application. Perhaps some legislative coordinated amendments are indicated.
[17] If no snare bedevils the applicant, did the visa officer err in making the negative recommendation regarding rehabilitation to the program manager?
[18] In that alternative, if the application for judicial review be properly before the Court, it becomes necessary to examine the visa officer"s recommendation to the Minister"s delegate that the applicant"s wife"s rehabilitation application not be granted.
[19] In the letter to the applicant, dated 17 July 1997, the visa officer states that the refusal to grant the application for permanent residence is based on the applicant"s wife"s status as an inadmissible person, pursuant to s.19(2)(a.1)(i) of the Act (AR, pp. 35-36). No mention is made in the letter of the Minister"s refusal of the wife"s application for rehabilitation. The applicant"s immigration consultants, VISA, wrote to the program manager on 23 July 1997, requesting a review of the refusal and an explanation as to why no reasons were provided regarding the rehabilitation application (AR, pp. 39-48).
[20] The visa officer responded by letter dated 1 August 1997 (AR, pp. 49-50). In the letter, the visa officer apologizes for not indicating in the refusal letter that the issue of rehabilitation had not been determined in the wife"s favour. He states that the purpose of the interview of 2 June 1997 was solely to consider the issue of rehabilitation, and that he advised the applicant"s wife at that time that she was not rehabilitated. He elaborates on the reasons behind his negative recommendation: she did not impress upon him that she had accepted responsibility for her actions and did not express remorse; moreover, she appeared to trivialize the whole matter, equating it with a parking ticket. This interview was directly in person, with the visa officer and Leong Un Ieng conversing face to face. Her attitude evinced cultural slippage with, or misapprehension of, the values and laws of Canadian society. It throws doubt on the sincerity of her earlier statutory declaration.
[21] In coming to this conclusion, the visa officer appears so to have construed, and come to consider, Leong Un Ieng"s statutory declaration which was submitted as part of form IMM 1444, the application for approval of rehabilitation. The statutory declaration (AR, p. 23) appears to show remorse on her part; she states: "I sincerely regret this error I made. I can assure the Canadian government that I have never made any similar mistakes or knowingly broke [sic ] the laws of any country." She also indicates that she voluntarily reported herself to the Hong Kong immigration authorities, cooperated in an investigation, and paid a fine upon conviction, all of which, she posits, is evidence of accepting responsibility for one"s actions. The deposition appears to have been composed for her, but the attitude evinced to the visa officer was authentically hers alone.
[22] In his letter of 1 August 1997, the visa officer also states that the stamp on the Royal Hong Kong Police Certificate indicating that the conviction is considered "spent" by virtue of the Hong Kong Rehabilitation of Offenders Ordinance is not applicable in the wife"s case in the sense that the U.K. Rehabilitation of Offenders Act was in Barnett v. Canada (Minister of Citizenship and Immigration) (1996) 109 F.T.R. 154, 33 Imm. L.R. (2d) 1 (F.C.T.D.).
[23] The applicant argues that the stamp on his wife"s police certificate was not proffered as evidence that the conviction itself was vacated or pardoned so as not to be considered a conviction. Rather, it was tendered as supporting evidence of rehabilitation. Although it is not determinative of the issue of rehabilitation, it is nonetheless relevant to the effluxion of time, but not attitude.
[24] It should be noted, however, that the program manager does not merely "rubber stamp" the visa officer"s recommendation. This is evidenced by the questions raised by the program manager in the CAIPS notes. The visa officer provides the program manager with his recommendation as to the disposition of the rehabilitation application, and includes the actual application (form IMM 1444), the statutory declaration, CAIPS notes, and the Hong Kong certificate of conviction (with the stamp indicating the conviction is considered "spent") (AR, p. 80).
[25] So, while the visa officer"s recommendation certainly plays a large role in the final decision, the Minister"s delegate did have before him the supporting documentation from which different conclusions could have been drawn, but were not, because the visa officer made no reviewable error to taint the ultimate decision. To challenge that ultimate decision on the Minister's behalf leave is required.
[26] Counsel for both parties recommended certification of a question in the following form:
| Is the recommendation of a visa officer on the issue of criminal rehabilitation, pursuant to s.19(2)(a.1), a decision subject to judicial review? If so, is leave required to commence judicial review proceedings in the matter? |
[27] This application for judicial review is dismissed because leave was required, but also because it conflicts with the provisions of the old rule 1602(4), present rule 302. The agreed-upon question is certified. No costs are awarded.
Judge
Ottawa, Ontario
December 29, 1998