Date: 20021107
Docket: IMM-5340-01
Neutral citation: 2002 FCT 1150
Ottawa, Ontario, Thursday the 7th day of November 2002
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
TU VAN NGO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] Ms. Ngo brings this application for judicial review of the decision of the Immigration Program Manager at the Canadian High Commission in Singapore that there are insufficient humanitarian and compassionate ("H & C") grounds to warrant a positive exercise of discretion under what was section 2.1 of the Immigration Regulations, 1978, SOR/78-172 ("Regulations"). That section provided:
| 2.1 The Minister is hereby authorized to exempt any person from any regulation made under subsection 114(1) of the Act or otherwise facilitate the admission to Canada of any person where the Minister is satisfied that the person should be exempted from that regulation or that the person's admission should be facilitated owing to the existence of compassionate or humanitarian considerations.
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2.1 Le ministre est autorisé à accorder, pour des raisons d'ordre humanitaire, une dispense d'application d'un règlement pris aux termes du paragraphe 114(1) de la Loi ou à faciliter l'admission au Canada de toute autre manière. |
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THE FACTS
[2] Ms. Ngo is currently 30 years of age. She is the only member of her immediate family still living in Vietnam. Her father, mother and brother immigrated to Canada in October of 1999 after they were sponsored by Ms. Ngo's sister. Ms. Ngo could not be included in the application for sponsorship because she was no longer a dependent child as defined in the Regulations.
[3] In the result, the decision was made by Ms. Ngo's parents to remove her from the sponsorship application in order to avoid rejection of that application. The unchallenged evidence is that it was the intent of the family that Ms. Ngo would come to Canada on a student visa. As result of this plan, Ms. Ngo's father sold the family home and the sewing machine that was used by the family to earn its income. However, Ms. Ngo was unable to obtain a student visa so as to be able to accompany her family to Canada.
[4] Ms. Ngo then applied for permanent residence in Canada. She completed the form of application appropriate for admission in the independent category as an assisted relative. She also asked to be considered on H & C grounds.
[5] According to Ms. Ngo, the years since her family left Vietnam have been very difficult for her. She is of Chinese ethnicity and as such is subject to discrimination generally, and specifically when she applies for jobs. She says that as a single woman living without the protection of her family, she is subjected to sexual harassment and to the threat of sexual assault and abduction. She has worked at one job, part-time, for a three-month period since graduating with a diploma in bookkeeping in August of 1998.
[6] Compounding Ms. Ngo's desire to come to Canada is the medical condition of her parents. Her father suffered a stroke that left him paralyzed on one side in 1996, and her mother was seriously burned in an accident in 1999. Ms. Ngo's sister in Canada must care for their parents in addition to working full-time. Ms. Ngo's family say that they need Ms. Ngo in Canada to assist her sister.
THE INTERVIEW AND THE DECISION OF THE VISA OFFICER
[7] Ms. Ngo was interviewed by a visa officer on May 10, 2001. The interview was conducted in Vietnamese with the assistance of an interpreter. Ms. Ngo provided information about her education and work history, her family history, the circumstances of her family leaving Vietnam, her accommodation, her concern that her accommodation is precarious, her experiences with discrimination, the things in her life that cause her fear, her parents' health, and the fact that her sister has no assistance in caring for their parents.
[8] During the course of the interview Ms. Ngo produced the household registry document, referred to as a "HHR", which indicated that she lived with her uncle in a house. She advised that her uncle had been living in an asylum for some time. With respect to her accommodation, Ms. Ngo had stated in her application for permanent residence that when her family learned that they were going to be able to go to Canada they had sold their house to a neighbour who then agreed to let her remain in the house if she paid rent. However, this was said to be a short-term arrangement because the new owner had bought the home to re-sell for profit. This was said to make Ms. Ngo's living arrangement precarious.
[9] After the interview, the visa officer and the interpreter discussed together what had been said during Ms. Ngo's interview. The CAIPS notes record the following:
Note that following interview reviewed and discussed household registry and other docs with interpreter. Rather odd that Applicant still has valid HHR for herself for her home - this is an important doc and would expect the new family/landlord who states that her family sold the home to should have registered by now. Would make life very difficult for them. HHR as of 8.5.2001 does not list anyone but Applicant and uncle (in asylum). Also note that Applicant has submitted copy of LEASE by which her ftr took over the home (owned by govt, not by him as claimed, though long-term). Applicant did not provide any modifyng [sic] doc or sub-lease to this family that supposedly took over. No proof that her situation in the house (ie, owner's dtr to tenant) has changed as claimed hardship.
[10] The visa officer refused Ms. Ngo's application for permanent residence as an assisted relative because she did not obtain sufficient units of assessment to qualify for immigration to Canada. Because of the request for H & C consideration the file was then transferred to the Program Manager for a decision as to whether Ms. Ngo's admission to Canada should be facilitated on those grounds.
THE DECISION OF THE PROGRAM MANAGER
[11] The program manager recorded his decision in the CAIPS notes as following:
Following a thorough review of all information on the physical file and the notes of the interviewing officer, I am not satisfied there are humanitarian and compassionate grounds that would warrant exercise of my discretion under R2.1. The applicant is almost 29 years of age, has been employed previously and both she and her family were advised that she was not a dependent on her parent's application and permanent separation could result if they emigrated and left her in Vietnam. I am not satisfied that she would have considerable difficulty in meeting her financial or emotional needs without the assistance of her family unit in Canada.
THE ISSUES
[12] Three issues are raised by Ms. Ngo with respect to the decision of the Immigration Program Manager. They are:
1. Did the Program Manager have jurisdiction to deal with the application on H & C grounds?
2. Was the duty of fairness breached when the Program Manager did not interview Ms. Ngo and again when the visa officer failed to discuss with Ms. Ngo adverse inferences which he drew during or after the interview?
3. Did the Program Manager disregard important facts in arriving at his decision?
ANALYSIS
i) Did the Program Manager have jurisdiction to deal with the application on H & C grounds?
[13] The nub of Ms. Ngo's argument is that it is the visa officer who should have considered her application on H & C grounds, and that as the Minister's delegate the visa officer could not sub-delegate that power to the Program Manager. This argument is based upon the following analysis of the Immigration Act, R.S.C. 1985, c. I-2 ("Act").
[14] Subsection 114(2) of the Act was as follows:
| 114(2) The Governor in Council may, by regulation, authorize the Minister to exempt any person from any regulation made under subsection (1) or otherwise facilitate the admission of any person where the Minister is satisfied that the person should be exempted from that regulation or that the person's admission should be facilitated owing to the existence of compassionate or humanitarian considerations.
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114(2) Le gouverneur en conseil peut, par règlement, autoriser le ministre à accorder, pour des raisons d'ordre humanitaire, une dispense d'application d'un règlement pris aux termes du paragraphe (1) ou à faciliter l'admission de toute autre manière. |
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[15] Section 37 of the Act provided:
| 37. (1) The Minister may issue a written permit authorizing any person to come into or remain in Canada if that person is (a) in the case of a person seeking to come into Canada, a member of an inadmissible class; or (b) in the case of a person in Canada, a person with respect to whom a report has been or may be made under subsection 27(2).
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37. (1) Le ministre peut délivrer un permis autorisant_: a) à entrer au Canada, les personnes faisant partie d'une catégorie non admissible; b) à y demeurer, les personnes se trouvant au Canada qui font l'objet ou sont susceptibles de faire l'objet du rapport prévu au paragraphe 27(2). |
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[16] Consolidated Instrument of Delegation One, Immigration Manual IL3 delegated to the officer level in Canada and the managerial level abroad the authority vested in the Minister pursuant to section 2.1 of the Regulations.
[17] It is argued that both paragraph 37(1)(a) and subsection 114(2) of the Act were part of the Act when the original legislation came into force in 1978. Section 2.1 of the Regulations was then enacted in 1993 and it is said to have blurred the distinction between subsection 114(2) and section 37 of the Act. Section 2.1 of the Regulations expanded the powers of the Minister, allowing him or her to decide to admit an inadmissible person into Canada on a temporary (subsection 37(1)) or permanent (subsection 114(2)) basis.
[18] The relevance of this is said to be that a person who applies at a visa post abroad, but who is inadmissible due to a failure to meet the requirements of the Act or Regulations required of all immigrants, may be allowed into the country under subsection 37(1) or subsection 114(2) of the Act by a senior immigration officer. A visa officer does not have power to admit such an immigrant. However, if an immigrant meets all of the general requirements of the Act, but fits within none of the programs which allow for admission into Canada, the visa officer is said to retain a residual discretion to admit the immigrant on H & C grounds. There must, it is argued, be a failure to meet a general requirement of the Act before a senior immigration officer has jurisdiction to make a decision on H & C grounds.
[19] It is argued that if, contrary to this submission, it is correct that a person who meets the general requirements of the Act and Regulations, but not the additional requirements of a particular program (for example the assisted relative program) can only be granted admission into Canada under subsection 114(2) and section 2.1 of the Regulations, then it would stand to reason that prior to 1993, a person falling into this category could only be admitted into Canada by an Order-in-Council. That is said not to be the case, and it is submitted that before 1993 visa officers had the power to admit persons to Canada on humanitarian grounds on a permanent basis.
[20] Therefore, on Ms. Ngo's behalf it is said that it is the visa officer who has the residual discretion to admit persons including Ms. Ngo on humanitarian grounds, not the Minister or his delegate.
[21] In order to argue that Ms. Ngo did not fail to meet a general requirement of the Act and Regulations, she argues that the Regulations do not require all who apply for immigration to receive 65 (or 70) units of assessment. Ms. Ngo points to the wording found in subsection 10(1) of the Regulations which in material part (as she did not intend to reside in Quebec) was as follows:
| 10. (1) Subject to subsections (1.1) and (1.2) and section 11, where an assisted relative makes an application for an immigrant visa, a visa officer may issue an immigrant visa to the assisted relative and accompanying dependants of the assisted relative if (a) he and his dependants, whether accompanying dependants or not, are not members of any inadmissible class and otherwise meet the requirements of the Act and these Regulations; (b) in the case of an assisted relative who intends to reside in a place other than the Province of Quebec, on the basis of an assessment made in accordance with section 8, the assisted relative is awarded at least 65 units of assessment.
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10. (1) Sous réserve des paragraphes (1.1) et (1.2) et de l'article 11, lorsqu'un parent aidé présente une demande de visa d'immigrant, l'agent des visas peut lui en délivrer un ainsi qu'aux personnes à sa charge qui l'accompagnent si les conditions suivantes sont réunies : a) le parent aidé et les personnes à sa charge, qu'elles l'accompagnent ou non, ne font pas partie d'une catégorie de personnes non admissibles et satisfont aux exigences de la Loi et du présent règlement; b) dans le cas du parent aidé qui entend résider au Canada ailleurs qu'au Québec, sur la base de l'appréciation visée à l'article 8, le parent aidé obtient au moins 65 points d'appréciation.
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[22] Ms. Ngo then argues that while a person who receive 65 units of assessment may be allowed entry into Canada, there is nothing which says that a person who does not have 65 units must be denied entry. The regulation is said to draw a distinction between the 65 unit threshold (referred to in paragraph 10(1)(b)) and the general requirements of the Act and Regulations (referred to in paragraph 10(1)(a)). Thus, Ms. Ngo argues that 65 units is a requirement in order for person to come to Canada as an assisted relative. It is not a requirement for every immigrant, no matter what the basis for their application.
[23] The residual nature of the visa officer's discretion is said to be reflected in subsection 9(4) of the Act which contained the only authority in the Act for the issuance of a visa. Subsection 9(4) stated:
| 9(4) Subject to subsection (5), where a visa officer is satisfied that it would not be contrary to this Act or the regulations to grant landing or entry, as the case may be, to a person who has made an application pursuant to subsection (1) and to the person's dependants, the visa officer may issue a visa to that person and to each of that person's accompanying dependants for the purpose of identifying the holder thereof as an immigrant or a visitor, as the case may be, who, in the opinion of the visa officer, meets the requirements of this Act and the regulations. [underlining added]
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9(4) Sous réserve du paragraphe (5), l'agent des visas qui est convaincu que l'établissement ou le séjour au Canada du demandeur et des personnes à sa charge ne contreviendrait pas à la présente loi ni à ses règlements peut délivrer à ce dernier et aux personnes à charge qui l'accompagnent un visa précisant leur qualité d'immigrant ou de visiteur et attestant qu'à son avis, ils satisfont aux exigences de la présente loi et de ses règlements. [Le souligné est de moi.] |
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[24] Thus, it is argued that a visa officer has two decisions to make when considering an application. The first is whether the applicant meets the requirements under the Act and the Regulations. The second is whether the visa officer will exercise his or her discretion to issue a visa. Meeting the requirements of the Act and Regulations is said not to entitle a person to entry. Rather, meeting those requirements meets a threshold, making the person eligible to enter. Whether or not an immigrant is allowed entry depends on how the discretion of the visa officer is exercised.
[25] While the discretion of the visa officer is guided by the Regulations, the criteria in the Regulations are said not to exhaust the discretion of a visa officer. Otherwise, Ms. Ngo argues, if the discretion of the visa officer is limited to granting visas to those persons who fit within the regulatory programs, then the officer's discretion would be improperly fettered. Therefore, even if a person fits within none of the programs set out in the Regulations, an applicant may still be admitted to Canada depending upon the discretion of a visa officer. One basis for the exercise of this residual discretion, in line with the purposes and principles of the Act, is said to be entry on H & C grounds.
[26] In order to consider Ms. Ngo's comprehensive argument it is necessary to consider the whole of the relevant legislative scheme contained in the Act and Regulations. Subsections 9(1), 9(2) and 9(4) of the Act together provided:
| 9. (1) Except in such cases as are prescribed, and subject to subsection (1.1), every immigrant and visitor shall make an application for and obtain a visa before that person appears at a port of entry.[...]
(2) An application for an immigrant's visa shall be assessed by a visa officer for the purpose of determining whether the person making the application and every dependant of that person appear to be persons who may be granted landing.
[...]
(4) Subject to subsection (5), where a visa officer is satisfied that it would not be contrary to this Act or the regulations to grant landing or entry, as the case may be, to a person who has made an application pursuant to subsection (1) and to the person's dependants, the visa officer may issue a visa to that person and to each of that person's accompanying dependants for the purpose of identifying the holder thereof as an immigrant or a visitor, as the case may be, who, in the opinion of the visa officer, meets the requirements of this Act and the regulations.
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9. (1) Sous réserve du paragraphe (1.1), sauf cas prévus par règlement, les immigrants et visiteurs doivent demander et obtenir un visa avant de se présenter à un point d'entrée. [...]
(2) Le cas du demandeur de visa d'immigrant est apprécié par l'agent des visas qui détermine si le demandeur et chacune des personnes à sa charge semblent répondre aux critères de l'établissement.
[...]
(4) Sous réserve du paragraphe (5), l'agent des visas qui est convaincu que l'établissement ou le séjour au Canada du demandeur et des personnes à sa charge ne contreviendrait pas à la présente loi ni à ses règlements peut délivrer à ce dernier et aux personnes à charge qui l'accompagnent un visa précisant leur qualité d'immigrant ou de visiteur et attestant qu'à son avis, ils satisfont aux exigences de la présente loi et de ses règlements. |
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[27] The effect of those provisions is that a person outside Canada who wishes to become a permanent resident of Canada must apply for an immigrant visa before arriving at port of entry. Each application is then reviewed by a visa officer for the purpose of determining if the person is entitled to an immigrant visa. Where a visa officer is satisfied that it would not be contrary to the Act or Regulations to grant landing, the visa officer may issue a visa to identify the holder of the visa as a person who appears to meet the requirements of the Act and the Regulations.
[28] Before moving to consider the exercise a visa officer is to conduct in order to discharge his or her duties pursuant to subsection 9(4) of the Act, it is relevant in this case to note that the application form which Ms. Ngo completed was the form appropriate for application in the independent category. On that form Ms. Ngo completed the section relating to a person who has offered to assist the immigrant after arrival in Canada.
[29] This was sufficient, in my view, to make applicable those provisions of the Regulations which deal with assisted relatives. Although Ms. Ngo argues that she did not apply in that category, and indeed says that she did not apply under any program (but simply applied on H & C grounds) I am satisfied that for the purpose of analyzing the Act and Regulations it is appropriate to have regard to those portions of the Regulations which deal with assisted relatives.
[30] The relevant provisions of the Regulations were therefore subsections 8(1), 10(1), 11(1) and 11(3). They were as follows:
| 8. (1) Subject to section 11.1, for the purpose of determining whether an immigrant and the immigrant's dependants, other than a member of the family class, a Convention refugee seeking resettlement or an immigrant who intends to reside in the Province of Quebec, will be able to become successfully established in Canada, a visa officer shall assess that immigrant or, at the option of the immigrant, the spouse of that immigrant (a) in the case of an immigrant, other than an immigrant described in paragraph (b) or (c), on the basis of each of the factors listed in column I of Schedule I; (b) in the case of an immigrant who intends to be a self-employed person in Canada, on the basis of each of the factors listed in Column I of Schedule I, other than the factor set out in item 5 thereof; (c) in the case of an entrepreneur, an investor or a provincial nominee, on the basis of each of the factors listed in Column I of Schedule I, other than the factors set out in items 4 and 5 thereof. (d) [Repealed, SOR/85-1038, s. 3] (e) [Repealed, SOR/91-433, s. 3]
[...]
10. (1) Subject to subsections (1.1) and (1.2) and section 11, where an assisted relative makes an application for an immigrant visa, a visa officer may issue an immigrant visa to the assisted relative and accompanying dependants of the assisted relative if (a) he and his dependants, whether accompanying dependants or not, are not members of any inadmissible class and otherwise meet the requirements of the Act and these Regulations; (b) in the case of an assisted relative who intends to reside in a place other than the Province of Quebec, on the basis of an assessment made in accordance with section 8, the assisted relative is awarded at least 65 units of assessment; and (b.1) [Repealed, SOR/91-157, s. 5] (c) in the case of an assisted relative who intends to reside in the Province of Quebec, the Minister of Cultural Communities and Immigration of that Province is of the opinion based on these Regulations or regulations made under An Act respecting the Ministère des Communautés culturelles et de l'Immigration (R.S.Q., 1977, c. M-23.1), as amended from time to time, that the assisted relative will be able to become successfully established in that Province. (d) [Repealed, SOR/93-44, s. 7]
[...]
11. (1) Subject to subsections (3) and (5), a visa officer shall not issue an immigrant visa pursuant to subsection 9(1) or 10(1) or (1.1) to an immigrant who is assessed on the basis of factors listed in column I of Schedule I and is not awarded any units of assessment for the factor set out in item 3 thereof unless the immigrant (a) has arranged employment in Canada and has a written statement from the proposed employer verifying that he is willing to employ an inexperienced person in the position in which the person is to be employed, and the visa officer is satisfied that the person can perform the work required without experience; or
(b) is qualified for and is prepared to engage in employment in a designated occupation.
[...]
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.
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8. (1) Sous réserve de l'article 11.1, afin de déterminer si un immigrant et les personnes à sa charge, à l'exception d'un parent, d'un réfugié au sens de la Convention cherchant à se réinstaller et d'un immigrant qui entend résider au Québec, pourront réussir leur installation au Canada, l'agent des visas apprécie l'immigrant ou, au choix de ce dernier, son conjoint :
a) dans le cas d'un immigrant qui n'est pas visé aux alinéas b) ou c), suivant chacun des facteurs énumérés dans la colonne I de l'annexe I;
b) dans le cas d'un immigrant qui compte devenir un travailleur autonome au Canada, suivant chacun des facteurs énumérés dans la colonne I de l'annexe I, autre que le facteur visé à l'article 5 de cette annexe; c) dans le cas d'un entrepreneur, d'un investisseur ou d'un candidat d'une province, suivant chacun des facteurs énumérés dans la colonne I de l'annexe I, sauf ceux visés aux articles 4 et 5 de cette annexe; d) [Abrogé, DORS/85-1038, art. 3] e) [Abrogé, DORS/91-433, art. 3]
[...]
10. (1) Sous réserve des paragraphes (1.1) et (1.2) et de l'article 11, lorsqu'un parent aidé présente une demande de visa d'immigrant, l'agent des visas peut lui en délivrer un ainsi qu'aux personnes à sa charge qui l'accompagnent si les conditions suivantes sont réunies : a) le parent aidé et les personnes à sa charge, qu'elles l'accompagnent ou non, ne font pas partie d'une catégorie de personnes non admissibles et satisfont aux exigences de la Loi et du présent règlement; b) dans le cas du parent aidé qui entend résider au Canada ailleurs qu'au Québec, sur la base de l'appréciation visée à l'article 8, le parent aidé obtient au moins 65 points d'appréciation; b.1) [Abrogé, DORS/91-157, art. 5] c) dans le cas du parent aidé qui entend résider au Québec, le ministre des Communautés culturelles et de l'Immigration de cette province est d'avis, d'après le présent règlement ou les règlements d'application de la Loi sur le ministère des Communautés culturelles et de l'Immigration (L.R.Q. 1977, ch. M-23.1), compte tenu de leurs modifications successives, que le parent aidé pourra réussir son installation dans cette province. d) [Abrogé, DORS/93-44, art. 7]
[...]
11. (1) Sous réserve des paragraphes (3) et (5), l'agent des visas ne peut délivrer un visa d'immigrant selon les paragraphes 9(1) ou 10(1) ou (1.1) à l'immigrant qui est apprécié suivant les facteurs énumérés à la colonne I de l'annexe I et qui n'obtient aucun point d'appréciation pour le facteur visé à l'article 3 de cette annexe, à moins que l'immigrant : a) n'ait un emploi réservé au Canada et ne possède une attestation écrite de l'employeur éventuel confirmant qu'il est disposé à engager une personne inexpérimentée pour occuper ce poste, et que l'agent des visas ne soit convaincu que l'intéressé accomplira le travail voulu sans avoir nécessairement de l'expérience; ou b) ne possède les compétences voulues pour exercer un emploi dans une profession désignée, et ne soit disposé à le faire.
[...]
11(3) L'agent des visas peut a) délivrer un visa d'immigrant à un immigrant qui n'obtient pas le nombre de points d'appréciation requis par les articles 9 ou 10 ou qui ne satisfait pas aux exigences des paragraphes (1) ou (2), ou b) refuser un visa d'immigrant à un immigrant qui obtient le nombre de points d'appréciation requis par les articles 9 ou 10, s'il est d'avis qu'il existe de bonnes raisons de croire que le nombre de points d'appréciation obtenu ne reflète pas les chances de cet immigrant particulier et des personnes à sa charge de réussir leur installation au Canada et que ces raisons ont été soumises par écrit à un agent d'immigration supérieur et ont reçu l'approbation de ce dernier.
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[31] Turning to the exercise of the discretion conferred by subsection 9(4) of the Act in the context of this regulatory framework, the nature of that exercise was considered by the Federal Court of Appeal in Rajadurai v. Canada (Minister of Citizenship and Immigration) (2000), 266 N.R. 119 (F.C.A.). Madam Justice Sharlow wrote as follows at paragraphs 18 to 25:
18 A visa officer performing the task required by subsection 9(4) must first assess the applicant's qualifications. In most instances, the applicant must meet the selection criteria for immigrants as set out in the Immigration Regulations, 1978. The selection criteria are intended to determine whether or not and the degree to which the immigrant will be able to become successfully established in Canada. Selection is made by awarding points for a number of factors. A person who meets the definition of "assisted relative", as these two appellants did, would meet the selection criteria if they achieved 65 points. That is 5 points less than the number of points required by a person who is not an assisted relative.
19 In a separate but related enquiry, the visa officer must determine whether the applicant falls into one of the classes of persons who must be denied admission. There are two categories of inadmissible persons, those listed in subsection 19(1) of the Immigration Act, who are simply inadmissible to Canada, and those listed in subsection 19(2) who are generally inadmissible but may in certain circumstances be permitted to come to Canada for a period not exceeding 30 days.
20 The list of inadmissible classes in subsection 19(1) includes persons who suffer from certain impairments to their physical or mental health, who are unable or unwilling to support themselves, who have committed certain kinds of criminal offences, who are members of certain criminal organizations, or who pose certain security risks. There is no suggestion that either appellant is inadmissible under subsection 19(1).
21 The list of inadmissible classes in subsection 19(2) includes persons with less serious criminal records. It also includes a catch-all category in paragraph 19(2)(d):
(2) No immigrant and, except as provided in subsection (3), no visitor shall be granted admission if the immigrant or visitor is a member of any of the following classes:
...
(d) persons who cannot or do not fulfil or comply with any of the conditions or requirements of this Act or the regulations or any orders or directions lawfully made or given under this Act or the regulations.
* * *
(2) Appartiennent à une catégorie non admissible les immigrants et, sous réserve du paragraphe (3), les visiteurs qui :
...
(d) soit ne se conforment pas aux conditions prévues à la présente loi et à ses règlements ou aux mesures ou instructions qui en procèdent, soit ne peuvent le faire.
22 Thus, for example, a person who fails to meet the selection criteria could, for that reason, be a member of an inadmissible class pursuant to paragraph 19(2)(d). However, that is not an inevitable conclusion. A person who does not meet the selection criteria may request relief under subsection 114(2), which reads as follows:
114(2) The Governor in Council may, by regulation, authorize the Minister to exempt any person from any regulation made under subsection (1) or otherwise facilitate the admission of any person where the Minister is satisfied that the person should be exempted from that regulation or that the person's admission should be facilitated owing to the existence of compassionate or humanitarian considerations.
* * *
114(2) Le gouverneur en conseil peut, par règlement, autoriser le ministre à accorder, pour des raisons d'ordre humanitaire, une dispense d'application d'un règlement pris aux termes du paragraphe (1) ou à faciliter l'admission de toute autre manière.
23 This provision is given effect in Regulation 2.1, which reads as follows:
2.1 The Minister is hereby authorized to exempt any person from any regulation made under subsection 114(1) of the Act or otherwise facilitate the admission to Canada of any person where the Minister is satisfied that the person should be exempted from that regulation or that the person's admission should be facilitated owing to the existence of compassionate or humanitarian considerations.
* * *
2.1 Le ministre est autorisé à accorder, pour des raisons d'ordre humanitaire, une dispense d'application d'un règlement pris aux termes du paragraphe 114(1) de la Loi ou à faciliter l'admission au Canada de toute autre manière.
24 In this case, a positive decision under subsection 114(2) would have relieved the appellants of the requirement to meet the selection criteria. In effect, the selection criteria would have been waived for the appellants. That would remove them from the class of inadmissible persons under subsection 19(2)(b).
25 The Minister's authority under subsection 114(2) may be delegated to others. In this case, the program manager in the office of the Canadian High Commission in Colombo, Sri Lanka was an authorized delegate of the Minister for purposes of subsection 114(2). [underlining added]
[32] While Madam Justice Sharlow was in dissent in Rajadurai, I do not read the reasons of the majority to differ with respect to this portion of Justice Sharlow's analysis.
[33] The submission advanced on Ms. Ngo's behalf depends upon the conclusion that the requirement to obtain 65 units is not a requirement of the Regulations. However, in my view, the scheme of the Act and the Regulations set out above does not support that characterization for the following reasons.
[34] First, in my view, the plain meaning of the words used in the Regulations does not support the distinction which Ms. Ngo seeks to be drawn. The selection criterion to be applied by the visa officer when exercising discretion under subsection 9(4) of the Act is whether the proposed immigrant will likely be able to become successfully established in Canada. This is reflected in subsections 8(1) and 11(3) of the Regulations. Paragraph 10(1)(b) of the Regulations provides that a visa may issue if, on the basis of the assessment conducted pursuant to subsection 8(1), at least 65 units of assessment are achieved. Subsection 11(1) of the Regulations (with a limited exception) prohibits the issuance of an immigrant visa pursuant to subsection 10(1) to an immigrant who on the unit assessment directed by subsection 8(1) does not receive at least one unit of assessment on account of experience.
[35] The need to obtain sufficient units of assessment so permeates the Regulations that it cannot, in my view, fairly be said that it is not a "requirement" of the Regulations.
[36] Second, in Rajadurai, supra, the Court of Appeal had before it the factual situation where an applicant had failed to receive sufficient units of assessment to qualify for landing in the assisted relative category and had sought H & C consideration. In considering the consequence of the failure to obtain sufficient units, Mr. Justice Stone, for the majority, wrote at paragraph 7:
The visa officer had to determine whether each of the appellants should be awarded a sufficient number of units of assessment as to bring themselves within the Assisted Relative category. That is all the visa officer was authorized to determine. Because the visa officer decided to award each of the appellants an insufficient number of units of assessment they became ineligible for admission within that category, and paragraph 19(2)(d) of the Act then rendered them inadmissible to Canada. [underlining added]
[37] Mr. Justice Stone went on to state in the next paragraph:
8 [...] the visa officer's decision had to be made some time before the Program Manager was called upon to make his decision of whether humanitarian and compassionate grounds existed. If the visa officer had awarded a sufficient number of units of assessment the appellants would have been issued a visa for landing in Canada. It was only because the visa officer awarded too few units of assessment that the appellants became inadmissible. Before that decision was made the Program Manager had no role to play under the Act and the Regulations. The question that came before him was whether to except both of the appellants from the Regulations notwithstanding their inadmissibility as found by the visa officer and as provided in paragraph 19(2)(d) of the Act. [underlining added]
[38] Thus, the majority of the Court of Appeal held that the failure to obtain the required number of units was a failure to comply with a condition or requirement of the Regulations resulting in inadmissibility.
[39] Ms. Ngo seeks to distinguish Rajadurai on the basis that in that case the applicant had specifically applied for consideration under subsection 114(1) of the Act, and had not applied to the residual discretion of the visa officer. However, even if a distinction exists on that basis, in my view it does not impact on the Court of Appeal's conclusion as to the legal consequence of the failure to obtain sufficient units of assessment.
[40] Third, the consequence of Ms. Ngo's submission is that a visa officer would have discretion under subsection 9(4) of the Act to issue a visa to anyone, provided that the person was not inadmissible under those portions of section 19 of the Act and Regulations which apply to every immigrant (for example, the requirements with respect to criminality and medical condition). It is the submission of the Minister that this would render the process completely subjective, non-transparent and entirely at the whim of the visa officer. I agree. Such result does not, in my view, accord with a purposive interpretation of the Act and Regulations.
[41] From the conclusion that it is a requirement of the Act and Regulations that an applicant receive sufficient units of assessment, it follows that the only discretion left to a visa officer where insufficient units of assessment are awarded is the discretion contained in subsection 11(3) of the Regulations. Pursuant to this subsection and with approval, a visa officer may issue a visa if satisfied that the number of units of assessment do not reflect the likelihood of successful establishment.
[42] In the absence of an exercise of discretion under subsection 11(3) of the Regulations the consequence of an award of insufficient units is that an applicant is inadmissible and may only be granted entry following the positive exercise of discretion under subsection 114(2) of the Act and section 2.1 of the Regulations. Ms. Ngo's application was therefore properly referred to the Program Manager for consideration.
[43] As a final point on this issue, while Ms. Ngo argued that before 1993 visa officers had power to admit persons to Canada on H & C grounds, that submission was not supported by authority, and was contrary to the evidence of the Program Manager on cross-examination.
ii) Was the Duty of Fairness Breached?
[44] As noted above, Ms. Ngo alleges that the duty of fairness was breached in two distinct respects. First, when the Program Manager did not interview her, and second, when the visa officer drew adverse inferences after his discussion with the interpreter.
a) Was the duty of fairness breached when the Program Manager did not interview Ms. Ngo?
[45] Ms. Ngo does not assert that every applicant for H & C consideration must be interviewed. However, she says that where a decision is made to interview an applicant, the duty of fairness requires that the interview be conducted by the decision-maker. Ms. Ngo says that the jurisprudence of this Court on the point is conflicting. She relies upon the cases of Pangli v. Canada (Minister of Citizenship and Immigration) (1987), 81 N.R. 216 (F.C.A.), Sorkhabi v. Canada (Secretary of State) (1994), 89 F.T.R. 224 (T.D.) and Braganza v. Canada (Minister of Citizenship and Immigration) (1998), 146 F.T.R. 239 (T.D.). Particular reliance is placed upon the analysis of Mr. Justice Muldoon in Braganza where he wrote at paragraph 22:
What Pangli states is that faced with a conflicting evidence or where credibility of a person is at issue, the immigration officer who interviews an applicant must be the person to render the decision. Similarly, from Sorkhabi it appears that when humanitarian and compassionate grounds need to be assessed, the interviewing officer must also render the decision. Thus, it appears that where an assessment is required of the person, rather than the person's qualifications, the interviewing officer must also be the officer to decide.
[46] In reply, the Minister argues that the duty of fairness requires a meaningful opportunity to present one's case fully and fairly and that an oral hearing is generally not necessary on an H & C application. See: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. The opportunity for written submissions and the oral interview before the visa officer are said to have allowed Ms. Ngo full and fair participation. The Minister relies upon two recent authorities of this Court which are said to be directly on point: Ho v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1303 (T.D.) and Chin v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1003.
[47] To consider these submissions I begin from the premise that the duty of fairness is not absolute, but rather varies according to context. In the present context, a number of factors tend to limit the content of the duty of fairness, including: the absence of a legal right to admission on H & C grounds; the onus on an applicant to establish H & C criteria; and the fact that no benefit is being removed from an applicant. Given those limiting factors, I turn to the jurisprudence cited by the parties.
[48] The facts in Pangli, Sorkhabi and Braganza are distinguishable. In Pangli an assessment as to credibility on conflicting evidence was required, while in Sorkhabi the officer relied upon extrinsic evidence. In Braganza a visa officer issued a decision letter based on an interview and notes prepared by another visa officer who had been transferred. Further, the comments in each decision relied upon by Ms. Ngo were in each case obiter dictum.
[49] In Ho, Madam Justice Sharlow considered the argument that procedural fairness is breached where a Program Manager relies on an interview conducted by the visa officer when considering whether to exercise discretion on H & C grounds. Madam Justice Sharlow distinguished Braganza and instead followed the earlier decision of Mr. Justice Noël (then of the Trial Division) in Burgin v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 34 (T.D.) where he wrote at paragraph 3:
It is well established that while a claimant has a right to make an application under s. 114(2) of the Act, and to have that application considered and determined on its merits, there is no duty on the part of the Minister to hold a hearing. In the case at bar, the officer charged with the task of making the decision had before her all the facts and circumstances relevant to the Applicant's claim and she specifically noted that she conducted a detailed review of these circumstances. It follows that it cannot be said that the claim was not assessed on its merits or that the Applicant was not given the right to make her case.
[50] Madam Justice Heneghan considered the same argument in Chin and also found that the procedure followed where an interview is conducted by a visa officer and then the H & C decision is made by a different officer is in accordance with the duty of fairness.
[51] I similarly conclude that Burgin, Ho and Chin, which are not distinguishable on their facts, properly reflect the content of the duty of fairness in this context.
[52] At bottom, there is no requirement on the part of the Minister's delegate to hold a hearing, so long as an applicant for H & C consideration is afforded a full and fair opportunity to participate in the decision-making process. That opportunity is provided in the form of counsel's opportunity to make submissions in writing and in the opportunity to provide further information to the visa officer.
b) Was the duty of fairness breached as a result of the subsequent discussion between the visa officer and the interpreter?
[53] The portion of the CAIPS notes set out above record the fact that after Ms. Ngo's interview the visa officer "reviewed and discussed household registry and other" documents with the interpreter, and thereafter the visa officer recorded his concerns at what he would have expected the documents to reflect.
[54] On the Minister's behalf it is argued that the visa officer merely weighed the documents submitted by Ms. Ngo and found them wanting. It is said that Ms. Ngo could have explained any inconsistency during her interview, that the discussion with the interpreter did not constitute extrinsic evidence, and that the Program Manager did not give much weight to this factor in any event.
[55] With respect to those submissions, the CAIPS notes state that the conversation between the visa officer and the interpreter went beyond the interpreter simply translating the documents to the visa officer so that the officer could form his own conclusions from them. The CAIPS notes document a review and, more importantly, discussion of the documents between the visa officer and the interpreter, following which the visa officer concluded that the documents were not as the officer thought they should be. Ms. Ngo is entitled to rely upon the officer's statement to that effect in the CAIPS notes as being an admission against interest. See: Tajgardoon v. Canada (Minister of Citizenship and Immigration), [2001] 1 F.C. 591, at paragraph 18. The information or input provided during the discussion is unknown, but whatever input was provided was extrinsic evidence.
[56] I accept the submission advanced on Ms. Ngo's behalf that if the visa officer's concerns after his review with the interpreter had been communicated to her, she may well have been able to address those concerns. By failing to provide that opportunity to her, the visa officer breached the duty of fairness.
[57] As to the effect of that breach, the Program Manager admitted on cross-examination that he read everything on the file before making his decision, and that it all factored into his decision.
[58] A lack of fairness in process is generally sufficient ground on which to set aside a decision. I have not been persuaded that the breach of fairness in this case could not have affected the decision-maker as contemplated in authorities such as Yassine v. Canada (Minister of Employment and Immigration) (1994), 172 N.R. 308 (F.C.A.). For this reason an order will issue allowing the application for judicial review.
[59] It is therefore unnecessary for me to consider the third ground of error asserted on Ms. Ngo's behalf. Further, because the matter is to be remitted for redetermination, I think it preferable no comment be made on the reasonableness of the decision.
[60] Counsel requested the opportunity to provide submissions in writing on certification with the benefit of these reasons. Therefore, counsel may serve and file submissions on certification within seven days of the receipt of these reasons. Thereafter, reply submissions may be served and filed within three days of service of the opposing party's submission.
[61] Following consideration of those submissions an order will issue allowing the application for judicial review.
"Eleanor R. Dawson"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-5340-01
STYLE OF CAUSE: Tu Van Ngo v. Minister of Citizenship and Immigration
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: October 9, 2002
REASONS FOR ORDER
OF THE HONOURABLE MADAM JUSTICE DAWSON
DATED: November 7, 2002
APPEARANCES:
David Matas FOR THE APPLICANT
Sharlene Telles-Langdon FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
David Matas FOR THE APPLICANT
Winnipeg, Manitoba
Mr. Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada