Date: 200100326
Docket: IMM-946-00
Neutral Citation: 2001 FCT 243
BETWEEN:
Shu Foo AU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review of the decision of visa officer James Schultz ("Officer Schultz"), dated January 24, 2000, refusing the applicant's application for permanent residence in Canada on the ground that he is a member of the class of persons who are inadmissible to Canada pursuant to paragraph 19(1)(c.2) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act").
[2] The applicant, born in Hong Kong on February 4, 1957, made an application for permanent residence as a member of the Family Class at the Commission for Canada in Hong Kong (the "Commission") on July 30, 1992. His application was sponsored by his wife Kiet Nhi Ly, a Canadian citizen. On January 6, 1995, Michael MacKenzie, a visa officer at the Commission, refused the applicant's application for permanent residence on the ground that he was inadmissible to Canada under sections 19(1)(c.2) and 19(2)(a.1)(i) of the Act. These provisions read as follows:
| 19. (1) No person shall be granted admission who is a member of any of the following classes: (c.2) persons who there are reasonable grounds to believe are or were members of an organization that there are reasonable grounds to believe is or was engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of any offence under the Criminal Code or Controlled Drugs and Substances Act that may be punishable by way of indictment or in the commission outside Canada of an act or omission that, if committed in Canada, would constitute such an offence, except persons who have satisfied the Minister that their admission would not be detrimental to the national interest. |
19. (1) Les personnes suivantes appartiennent à une catégorie non admissible : (c.2) celles dont il y a des motifs raisonnables de croire qu'elles sont ou ont été membres d'une organisation dont il y a des motifs raisonnables de croire qu'elle se livre ou s'est livrée à des activités faisant partie d'un plan d'activités criminelles organisées par plusieurs personnes agissant de concert en vue de la perpétration d'une infraction au Code criminel ou à la Loi réglementant certaines drogues et autres substances qui peut être punissable par mise en accusation ou a commis à l'étranger un fait - acte ou omission - qui, s'il avait été commis au Canada, constituerait une telle infraction, sauf si elles convainquent le ministre que leur admission ne serait nullement préjudiciable à l'intérêt national; |
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| 19. (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: (a.1) persons who there are reasonable grounds to believe (i) have been convicted outside Canada of an offence that, if committed in Canada, would constitute an offence that may be punishable by way of indictment under any Act of Parliament by a maximum term of imprisonment of less than ten years, except persons who have satisfied the Minister that they have rehabilitated themselves and that at least five years have elapsed since the expiration of any sentence imposed for the offence or since the commission of the act or omission, as the case may be. |
19. (2) Appartiennent à une catégorie non admissible les immigrants et, sous réserve du paragraphe (3), les visiteurs qui : (a.1) sont des personnes dont il y a des motifs raisonnables de croire qu'elles ont, à l'étranger : (i) soit été déclarées coupables d'une infraction qui, si elle était commise au Canada, constituerait une infraction qui pourrait être punissable, aux termes d'une loi fédérale, par mise en accusation, d'un emprisonnement maximal de moins de dix ans, sauf si elles peuvent justifier auprès du ministre de leur réadaptation et du fait qu'au moins cinq ans se sont écoulés depuis l'expiration de toute peine leur ayant été infligée pour l'infraction. |
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[3] Mr. MacKenzie based his refusal on the applicant's criminal record in Hong Kong, which indicated the following convictions: membership in a triad society (April 29, 1974); possession of an offensive weapon (September 3, 1976); and possession of a dangerous drug (three separate convictions: May 13, 1981; May 7, 1985; November 15, 1985). In addition, the applicant was sentenced on April 22, 1986 to attend a drug treatment program in relation to the offence of possession of a dangerous drug; however, no conviction was recorded.
[4] The applicant's sponsor, Ms. Ly, appealed Mr. MacKenzie's refusal to the Immigration Appeal Division of the Immigration and Refugee Board (the "IAD"). On December 12, 1997, the IAD allowed the appeal, concluding that there existed compassionate and humanitarian considerations that warranted the granting of special relief. As a result of the IAD's decision, the applicant's application was sent back to the Commission for consideration, pursuant to subsection 77(5) of the Act, which provides the following:
| 77. (5) Subject to subsection (6), where the Minister has been notified by the Appeal Division that an appeal has been allowed pursuant to subsection (4), the Minister shall cause the review of the application to be resumed by an immigration officer or a visa officer, as the case may be, and the application shall be approved where it is determined that the person who sponsored the application and the member of the family class meet the requirements of this Act and the regulations, other than those requirements on which the decision of the Appeal Division has been given. |
77. (5) Une fois avisé qu'il a été fait droit à l'appel, le ministre, sous réserve du paragraphe (6), fait poursuivre l'examen de la demande par un agent d'immigration ou un agent des visas. Celui-ci approuve la demande s'il est établi que le répondant et le parent satisfont aux exigences de la présente loi et de ses règlements, autres que celles sur lesquelles la section d'appel a rendu sa décision. |
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[5] On August 20, 1999, the applicant's file was transferred to Officer Schultz for resumed processing. On November 3, 1999, Officer Schultz wrote to the applicant to schedule an interview, the purpose of which was to examine the applicant's admissibility to Canada on criminal and other grounds. The interview took place on November 16, 1999. By letter dated January 24, 2000, Officer Schultz informed the applicant that his application for permanent residence was refused on the ground that he was inadmissible to Canada as he was a person described in paragraph 19(1)(c.2) of the Act.
[6] Officer Schultz stated in his letter of refusal that he had made this determination following the review of new information which was not available at the time of the applicant's previous refusal or at his successful appeal to the IAD. With respect to the applicant's membership in a criminal organization, Officer Schultz states the following:
As discussed with you at your interview of December 16, 1999 I have access to information received in confidence from a reliable source which has identified you as a confirmed member of a criminal organization. I have carefully weighed that information and determined that it has been corroborated by additional detailed information you have provided at your interview with me about your involvement with, and recruitment by, members of the Wo Shing Wo triad society.
I have also carefully examined the information you provided at your interview of December 16, 1999 about the circumstances of your two convictions in Hong Kong for Gambling in a gambling establishment, dated December 17, 1993 and September 28, 1994 respectively. You confirmed to me at interview that you did not advise the Appeal Division of these two convictions when you provided oral testimony to them by telephone. I have determined that the circumstances of these two offences are characteristic of organized criminal activities when considered in the local context, and that they are further evidence of a pattern of ongoing organized criminal activity. The circumstances of these offences further corroborates information received in confidence from a reliable source, which identifies you as a confirmed member of a criminal organization. I have also confirmed with you at interview that you had regular contact with heroin dealers who were known to you as members of criminal organizations during the period in which you were previously addicted to heroin.
[7] Officer Schultz also indicated in his letter of refusal that he had considered the applicant's comments to the effect that he was not, nor had he ever been a member of an organized group, as well as his explanation of why someone might believe that he was a member of a triad society. Nonetheless, Officer Schultz determined that the pattern of evidence which was available to him and which was not previously considered by the IAD was a credible and compelling reason to believe that the Applicant was described in paragraph 19(1)(c.2) of the Act.
[8] This application for judicial review was commenced by the applicant on February 24, 2000. On May 12, 2000, the respondent filed a motion, to be heard in camera, for an order, pursuant to section 82.1(10)(d) of the Act, for non-disclosure to the applicant and his counsel of information obtained in confidence, which information was part of the material before the visa officer. Subsection 82.1(10) reads as follows:
| 82.1 (10) With respect to any application for judicial review of a decision by a visa officer to refuse to issue a visa to a person on the grounds that the person is a person described in any of paragraphs 19(1)(c.1) to (g), (k) and (l), (a) the Minister may make an application to the Federal Court - Trial Division, in camera, and in the absence of the person and any counsel representing the person, for the non-disclosure to the person of information obtained in confidence from the government or an institution of a foreign state or from an international organization of states or an institution thereof; (b) the Court shall, in camera, and in the absence of the person and any counsel representing the person, (i) examine the information, and (ii) provide counsel representing the Minister with a reasonable opportunity to be heard as to whether the information should not be disclosed to the person on the grounds that the disclosure would be injurious to national security or to the safety of persons; (c) the information shall be returned to counsel representing the Minister and shall not be considered by the Court in making its determination on the judicial review if, in the opinion of the Court, the disclosure of the information to the person would not be injurious to national security or to the safety of persons; and (d) if the Court determines that the information should not be disclosed to the person on the grounds that the disclosure would be injurious to national security or to the safety of persons, the information shall not be disclosed but may be considered by the Court in making its determination. |
82.1 (10) Dans le cadre de la demande de contrôle judiciaire d'une décision de l'agent des visas de refuser un visa au motif que l'intéressé appartient à l'une des catégories visées aux alinéas 19(1)c.1) à g), k) ou l) : a) le ministre peut présenter à la Section de première instance de la Cour fédérale, à huis clos et en l'absence de l'intéressé et du conseiller le représentant, une demande en vue d'empêcher la communication de renseignements obtenus sous le sceau du secret auprès du gouvernement d'un État étranger, d'une organisation internationale mise sur pied par des États étrangers ou l'un de leurs organismes; b) la Section de première instance de la Cour fédérale, à huis clos et en l'absence de l'intéressé et du conseiller le représentant : (i) étudie les renseignements, (ii) accorde au représentant du ministre la possibilité de présenter ses arguments sur le fait que les renseignements ne devraient pas être communiqués à l'intéressé parce que cette communication porterait atteinte à la sécurité nationale ou à celle de personnes; c) ces renseignements doivent être remis au représentant du ministre et ne peuvent servir de fondement au jugement de la Section de première instance de la Cour fédérale sur la demande de contrôle judiciaire si la Section de première instance de la Cour fédérale détermine que leur communication à l'intéressé ne porterait pas atteinte à la sécurité nationale ou à celle de personnes; d) si la Section de première instance de la Cour fédérale décide que cette communication porterait atteinte à la sécurité nationale ou à celle de personnes, les renseignements ne sont pas communiqués mais peuvent servir de fondement au jugement de la Section de première instance de la Cour fédérale sur la demande de contrôle judiciaire. |
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The motion was granted by Campbell J. who, on May 15, 2000, ordered that the information contained in the confidential affidavit of James Schultz not be disclosed to the applicant on the ground that the disclosure would be injurious to national security.
[9] The applicant raises six issues in his application for judicial review:
1. Officer Schultz ignored subsection 77(5) of the Act and based his decision on issues that had already been resolved by the IAD.
2. Officer Schultz displayed a reasonable apprehension of bias in his comments with respect to the propriety of the IAD's decision.
3. Officer Schultz breached the principles of natural justice and fairness in failing to disclose documentary evidence to the applicant on which he relied in making his decision.
4. Officer Schultz breached the principles of natural justice and fairness by failing to make the applicant aware of the case he was required to meet.
5. Officer Schultz's decision that the Applicant was a member of a triad society was unreasonable in light of the evidence before him.
6. This Court should not consider the documentary evidence attached as Exhibit "A", "B", and "C" to the Affidavit of James Schultz dated May 12, 2000, as those documents were not in existence at the time Mr. Schultz made his decision.
Issue #1:
[10] The applicant submits that Officer Schultz ignored subsection 77(5) of the Act and based his decision on matters that had already been determined by the IAD. The applicant claims that in determining whether he was admissible to Canada, Officer Schultz interrogated him on matters that were resolved in his favour at the appeal before the IAD. Therefore, the applicant contends that when the file was returned to the Commission, it was not open to Officer Schultz to refuse the application for any reason that was related to the matters dealt with by the IAD in the appeal.
[11] In addition, the applicant claims that since the confidential information considered by Officer Schultz is dated April 1, 1997, it was available when the IAD heard the appeal on April 24, 1997. According to the applicant, the fact that the IAD may have refused to consider this information at the hearing on April 24, 1997, did not entitle Officer Schultz to treat the information as new evidence. The applicant further submits that if the evidence was not offered to the IAD by the respondent, the latter could have brought it to the attention of the IAD at any time before the IAD made its decision.
[12] The respondent submits that this Court has previously interpreted subsection 77(5) restrictively, and that it has been established that an IAD order allowing an appeal under subsection 77(3) does not exclude a subsequent finding of inadmissibility under the same provision of the Act that was the basis of the first refusal. Rather, the respondent contends that an IAD order only prohibits a visa officer from reaching the same conclusions on those grounds that were the subject matter of the appeal before the IAD.
[13] I agree with the respondent's submissions to the effect that subsection 77(5) of the Act only prohibited Officer Schultz from reaching the same conclusions on the grounds that were dealt with by the IAD. In King v. Canada (M.C.I.) (1996), 115 F.T.R. 306 (T.D.), a visa officer had refused the applicant's application for landing on the basis that she had failed to meet the medical admissibility requirements under subparagraph 19(1)(a)(ii) of the Act since she had been diagnosed as suffering from a lesion on her left lung. The visa officer's decision was appealed to the IAD, which allowed the appeal on the ground that the evidence did not support a conclusion that the lesion was on the applicant's left lung. The matter was returned to a visa officer for re-determination, however, the visa officer requested that the applicant obtain a further medical evaluation. The applicant sought an order from this Court setting aside the visa officer's request, based on subsection 77(5) of the Act. With respect to the application of subsection 77(5), Dubé J. stated the following at page 309, paragraphs 9 to 11:
[9] When a decision of a visa officer denying an application for landing on the basis that the applicant is a member of an excluded class under section 19 of the Act is overturned by the Board on the basis of an error in the medical assessment, the only issue that is res judicata is the medical issue found to be erroneous by the Board. Therefore, a visa officer can subsequently request further medical information and an applicant is still required to establish that his or her admission into Canada would not be contrary to section 19 of the Act [footnote omitted].
[10] In a somewhat similar situation, Mangat v. Secretary of State, T-153-85, dated February 25, 1985, [1985] F.C.J. No. 127, Strayer J. addressing subsection 79(4) of the Act (now subsection 77(5)), found that the Board had not decided that the medical problem in question was to be ignored but decided that "the condition had not, as a matter of law, been properly proved". He concluded that this does not preclude the consideration of new and proper medical evidence concerning the same problem upon review of the landing application.
[11] I certainly agree that subsection 77(5) of the Act ought not to be interpreted in such a manner as to permit immigrants to circumvent the requirements of the Act. In the instant case, it cannot be said that the Board has given a decision on medical admissibility requirements for the purposes of subsection 77(5) of the Act so as to relieve Mrs. King of her obligation to prove medical admissibility. In fact, the Board did not determine that Mrs. King did not suffer from a medical condition that might render her inadmissible under section 19 of the Act. Neither did the Board conclude that there was no evidence that the applicant suffers from a lesion that would require extensive investigation and a treatment in facilities which might reasonably be expected to cause excessive demands on Canadian medical services.
[14] In my view, Dubé J.'s comments regarding subsection 77(5) of the Act, in the context of medical admissibility, can be applied to the case at bar. Mr. MacKenzie, the visa officer who first refused the applicant's application, found that the applicant was not admissible under paragraph 19(1)(c.2) of the Act as a consequence of his conviction for membership in a triad society in 1974. The IAD's decision granted relief from that finding following the applicant's explanation of the circumstances of that conviction. Consequently, in my opinion, the effect of the IAD's decision was to prohibit Officer Schultz from concluding, on the basis of the 1974 conviction for membership in a triad society, that the applicant was inadmissible under paragraph 19(1)(c.2) of the Act. However, it remained open for Officer Schultz to determine, based on other information available to him, that the applicant was inadmissible under paragraph 19(1)(c.2) of the Act. To argue, as does the applicant, that the visa officer could not consider evidence which was not addressed by the IAD and which indicated that the applicant was a member of a triad would lead to a result contrary to the objectives of the Act, particularly the objectives listed at paragraphs 3(i) and (j):
| 3. It is hereby declared that Canadian immigration policy and the rules and regulations made under this Act shall be designed and administered in such a manner as to promote the domestic and international interests of Canada recognizing the need (i) to maintain and protect the health, safety and good order of Canadian society; and (j) to promote international order and justice by denying the use of Canadian territory to persons who are likely to engage in criminal activity. |
3. La politique canadienne d'immigration ainsi que les règles et règlements pris en vertu de la présente loi visent, dans leur conception et leur mise en oeuvre, à promouvoir les intérêts du pays sur les plans intérieur et international et reconnaissent la nécessité : i) de maintenir et de garantir la santé, la sécurité et l'ordre public au Canada; j) de promouvoir l'ordre et la justice sur le plan international en n'acceptant pas sur le territoire canadien des personnes susceptibles de se livrer à des activités criminelles. |
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[15] Such an interpretation of subsection 77(5) of the Act would allow an immigrant to enter Canada even if evidence clearly indicated that he or she should be excluded, only because other evidence pointing to the same conclusion of inadmissibility under the same provision of the Act had previously been considered by the IAD. In my view, such a result cannot be intended by subsection 77(5) of the Act.
[16] As to the applicant's arguments that Officer Schultz questioned the applicant at the interview on the circumstances of his 1974 conviction, my review of Officer Schultz's interview notes indicates that the conversation on triad membership was based on the confidential new evidence which Officer Schultz obtained, not on the applicant's previous conviction. It is true that the circumstances surrounding the 1974 conviction were briefly discussed, however, it was in the context of a conversation on the additional evidence. In addition, Officer Schultz's refusal letter clearly indicates that the evidence which was taken into consideration to refuse the applicant's application does not include the 1974 conviction for membership in a triad.
[17] With respect to the date of the additional evidence, the applicant's argument to the effect that the evidence should have been introduced before the IAD is, in my view, without merit. There was no obligation on the respondent to introduce that evidence before the IAD, since the purpose of the appeal was to consider the first refusal and the circumstances and evidence which led to that decision. The fact that the respondent could have brought the new evidence before the IAD does not in any way lead to the conclusion that it was obliged to do so. In my opinion, the respondent is not precluded from using that new evidence to refuse the applicant's second application for permanent residence, simply because it was or could have been available at the date of the hearing before the IAD.
[18] Therefore, I am of the opinion that Officer Schultz's decision to refuse the applicant's application was based on grounds which were not previously considered by the IAD. The factual basis for Officer Schultz's refusal was not considered by the IAD, nor was it the subject matter of the finding of inadmissibility from which the IAD granted special relief. Thus, Officer Schultz was not precluded, by reason of subsection 77(5) of the Act, from concluding as he did.
Issue #2:
[19] The applicant submits that Officer Schultz's involvement in this file since February 1998 and the comments he made in connection with the file raises a reasonable apprehension of bias. The applicant contends that the following comments made by Officer Schultz in a fax dated February 6, 1998 to Mr. Al Durst, in which Officer Schultz requested advice on a possible appeal of the IAD's decision, demonstrate Officer Schultz's bias:
4. We recognize that a fuller examination of the issues will be required, but the bottom line is that we would like to see an appeal entered in order to ensure that this case does not slip through the cracks. We do not believe that the Appeal Division properly considered the evidence before it in revisiting the visa officers [sic] determination that the applicant had not rehabilitated himself. The decision states on page 8 that "The panel does not agree with the respondents [sic] contention that the applicant is not fully rehabilitated...". The Appeal Division did not find, however, that an error in law had been made. Their disagreement on rehabilitation, however, was clearly fundamental to the decision to find in favour of the applicant on equity, and we believe they erroneously circumvented the issue of whether or not the negative rehabilitation decision was valid in law by revisiting the rehabilitation issue in an equity decision.
5. We want to examine this decision in greater detail, but want to provide these preliminary comments to assist you in your review of a case in which we are sure you will share grave concerns. We also believe that this is going to be a highly controversial decision if the press gets wind of it, and the IPM suggests you brief the Minister's Office.
[20] The applicant further submits that the Canadian Consulate General should have assigned the file to someone who was not personally involved in seeking to overturn the IAD's decision.
[21] The test for reasonable apprehension of bias was enunciated by the Supreme Court of Canada in Committee for Justice and Liberty et al. v. Canada (National Energy Board), [1978] 1 S.C.R. 369 at page 394:
[...] the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is "what would an informed person, viewing the matter realistically and practically--and having thought the matter through--conclude".
[22] The standard which will apply to determine if there is a reasonable apprehension of bias will vary, depending on the nature, role and function of the particular tribunal or decision-maker. Since visa officers do not act in a judicial or quasi-judicial capacity, a test of bias similar to the test applied to judges or decision-makers acting judicially is not, in my view, appropriate. In my opinion, a less stringent test should be applied to visa officers, one which requires an absence of conflict of interest and a mind that is open to persuasion. Visa officers are expected to have examined an applicant's file and to have conducted an investigation in order to determine if there are any grounds under which an applicant would be inadmissible to Canada before the interview with the applicant takes place. The purpose of the interview, which is usually conducted once the visa officer has determined that he or she has doubts as to whether the applicant is admissible, is for the applicant to dissipate the visa officer's concerns and persuade him that he or she is admissible. The visa officer represents the Minister, and therefore cannot be expected to be as impartial as a judge should be.
[23] In the case at bar, the applicant's concern is that Officer Schultz prejudged his case. On that subject, in D.J.M. Brown & J.M. Evans, Judicial Review of Administrative Action in Canada, vol. 2 (Toronto: Canvasback Publishing, 1998), the learned authors make the following comments at pages 11-39 and 11-40:
Circumstances which appear to diverge from the proper adjudicative process by revealing an improper predisposition to deciding the issues in dispute one way rather than another are closely related to instances of "interest", "hostility" and "relationships". That is, an appearance may be created, either from certain behaviour or past circumstances, that evidence has come before the adjudicator other than through the medium of the parties' proofs and arguments, or that the decision-maker did not come to the hearing with an open mind. Thus, there may be thought to have been "prejudgment," "prior knowledge," "prior adjudication," or "excessive interference," or that the decision-maker may have had ex parte contacts with third persons in relation to the matter in question. These circumstances can be loosely characterized as creating an appearance of unfairness.
Nevertheless, decision-makers cannot realistically be expected to approach an issue unencumbered by attitudes, knowledge or experience that to some extent predispose them in one direction or another. In the words of one judge, to charge adjudicators with bias:
is not merely to say that they would be likely to decide a particular matter in a particular way, but to say that they would do so improperly.
Accordingly, the question typically becomes one of whether the decision-maker exhibited such a degree of prejudgment or predisposition to one side or to the other that it gives rise to a reasonable apprehension that the decision-maker is or would be unresponsive to the evidence and arguments advanced at the hearing. [footnotes omitted]
[24] In my view, considering all the circumstances, there is no evidence that Officer Schultz decided the matter improperly, or that he prejudged the matter to the point of being unresponsive to the applicant's arguments. Officer Schultz held a three-hour interview with the applicant, during which he discussed in detail every issue which concerned him. There is no evidence that he made any comment during the interview which would indicate that he was not open to considering the applicant's answers. Officer Schultz took extensive notes during the interview, carefully recording all of the applicant's submissions and answers to his questions. In addition, he stated in his refusal letter to the applicant that he had taken the applicant's arguments into consideration. In my opinion, it cannot be said that Officer Schultz's mind was not open to persuasion, or that his decision was based on irrelevant considerations rather than on the particular circumstances of the case.
[25] Furthermore, the passages of the fax pointed out by the applicant deal exclusively with the question of the validity of the IAD decision and with the fact that Officer Schultz believed that the IAD erred in law or exceeded its jurisdiction. The fax was sent by Officer Schultz in the context of his administrative duties at the Commission, more than a year before the file was transferred to him in August 1999, following the departure of the visa officer responsible for the applicant's file. Officer Schultz's decision to refuse the applicant's application was based, in my view, on the evidence before him which indicated that the applicant was inadmissible to Canada, not on the fact that he disagreed with the IAD's decision or exercise of its jurisdiction. In my opinion, these are two entirely separate matters, and this evidence is not sufficient to conclude that there was a reasonable apprehension of bias.
[26] Consequently, in my view, an informed person viewing the matter realistically and practically and having thought the matter through would conclude that no reasonable apprehension of bias arises from the fax sent by Officer Schultz. However, in the event that I am wrong and that the matter does raise a reasonable apprehension of bias, I agree with the respondent's submission that the applicant is precluded from raising this issue, as he failed to object prior to the interview or to the second refusal. It is now trite law that an apprehension of bias must be raised at the earliest practicable opportunity. In In re Human Rights Tribunal and Atomic Energy of Canada Ltd., [1986] 1 F.C. 103 (C.A.), the Federal Court of Appeal made the following point at page 110:
A Tribunal appointed so as to give rise to an apprehension of bias is, as I understand the jurisprudence, only susceptible of being disqualified. Correlatively, the right of the individual who apprehends bias on the part of the Tribunal before which he is brought has always been, again as I understand the jurisprudence, a right to object to being judged by the Tribunal, but a right that exists only until he expressly or impliedly submits to it. It is only because Mr. MacBain raised his objections at the outset that his attack on the proceedings could be successful.
In the context of immigration law, Denault J. expressed a similar opinion in Abdalrithah v. Canada (Minister of Employment and Immigration) (1988), 40 F.T.R. 306 (T.D.) at page 308:
Moreover, even if the facts had shown a probability of bias on the officer's part, which is not the case, the failure of the applicant's attorney to raise this issue forthwith leads to a presumption that he had given up on invoking the reasonable apprehension of bias.
[27] In the present instance, the Tribunal Record indicates that Officer Schultz sent a copy of the Commission's file to this Court under cover of a letter dated August 25, 1999 (reproduced at p. 193 of the Tribunal Record). The copy of the file was sent following a request by the applicant pursuant to Rule 317 of the Federal Court Rules, 1998 in a mandamus application commenced by the applicant. Although it is not clearly indicated on the August 25, 1999 letter that a copy of the Commission's file was sent to the applicant, Officer Schultz mentions in the letter that the copy of the file is being sent pursuant to Rule 318 of the Federal Court Rules, 1998, which requires that a copy also be sent to the party making the request, in this case, the applicant. Therefore, the likelihood is that the applicant did receive a copy of the file.
[28] At pages 34 and 35 of the Commission's file (now pages 225 and 226 of the Tribunal's Record) is the fax from Officer Schultz to Al Durst. Therefore, the applicant has known of the existence of the fax and of Officer Schultz's involvement in the possibility of an appeal from the IAD decision. On November 3, 1999, Officer Schultz wrote to the applicant to schedule an interview with him. On December 14, 1999, the applicant's counsel replied to Officer Schultz's letter and, inter alia, acknowledged that the interview would be conducted by Officer Schultz. However, counsel did not object to Officer Schultz conducting the interview and processing the application.
[29] In addition, the applicant attended the interview with Officer Schultz on December 16, 1999. There is no evidence that the applicant objected to Officer Schultz conducting the interview at any time prior to or during the interview. Consequently, in my view, since the applicant had ample opportunity to raise his concerns regarding the involvement of Officer Schultz in the file, he cannot now raise this objection.
Issue #3:
[30] The applicant submits that Officer Schultz did not share with him important documents that he relied on in making his decision, which documents are reproduced as Exhibits D, E and F to Officer Schultz's May 10, 2000 affidavit. The applicant contends that these documents were material to the decision and that consequently, Officer Schultz had a duty to disclose them to him and to give him an opportunity to respond.
[31] Exhibits D, E and F to Officer Schultz's May 10, 2000 affidavit are extracts from texts describing triad activities in Hong Kong. In his affidavit, Officer Schultz explains that the texts included are there as examples to summarize knowledge that he has acquired regarding triad activity in Hong Kong. When cross-examined on his affidavit, Officer Schultz indicated that he did not specifically refer to these texts during the interview with the applicant, but that the information contained therein was discussed with the applicant in a general way. He also specified that the purpose of attaching these extracts as exhibits was to demonstrate that he wasn't "making this up or imagining things".
[32] In my view, it cannot be said that Officer Schultz breached the duty of fairness by not disclosing the above documents to the applicant. The documents were attached mainly to summarize Officer Schultz's knowledge, which he relied on in making his decision. This case is not analogous to the cases referred to by the applicant, where documents directly pertaining to the applicants, which should have been in the record, were not disclosed. In this case, Officer Schultz relied indirectly on these materials, and in my opinion, the applicant was not disadvantaged by not having the opportunity to see them and respond to them.
[33] In addition, even if Officer Schultz had directly relied on the documents, the jurisprudence is to the effect that the duty of fairness is not breached if the applicant is given an opportunity to respond to the concerns raised in the visa officer's mind by the documents. In Zheng v. Canada (M.C.I.), [1999] F.C.J. No. 1297 (T.D.), the applicant claimed that the visa officer had relied on extrinsic evidence, i.e. information respecting the different cook classifications that had been used in the People's Republic of China since 1993. The Court stated the following at paragraph 10:
[10] The essential characteristic in [the] jurisprudence is that concerns were raised in the mind of the decision-maker as a result of new information, concerns that were not put to the applicant, and those concerns were significant in leading the decision-maker to decide against the applicant. That did not occur in this case. While the applicant may not have been given a copy of the PRC information document, the concerns arising in the visa officer's mind, as a result of her knowledge of the information in the document, were raised with the applicant and he was given an opportunity to comment thereon.
In my view, in the present matter, the applicant was given ample opportunity during the interview to respond to Officer Schultz's concerns which arose as a result of his knowledge of triad activities, summarized in the documents at Exhibits D, E and F to his May 10, 2000 affidavit. I have not been persuaded that the duty of fairness was breached.
Issue #4:
[34] The applicant submits that Officer Schultz never made him aware of his belief that he was participating in the running of a gambling ring, that the job he was doing for the Fu Shing Motor Vehicle Company was illegal and that he was involved in illegal activities relating to mini-buses. Therefore, the applicant contends that he was not given an opportunity to respond to the visa officer's concerns.
[35] In Muliadi v. Canada (M.E.I.), [1986] 2 F.C. 205 (C.A.), the Federal Court of Appeal discussed the issues of procedural fairness and the opportunity to respond. Stone J.A., for the Court, stated the following at paragraph 16:
[...] In the circumstances, though [the applicant] was not entitled to a full hearing, I think he should have had the opportunity of meeting the negative assessment by the provincial authorities before it was acted upon by the visa officer, for upon that assessment his application turned. The duty to act fairly extends to this kind of case. In this I would adopt the views expressed by Lord Parker C.J. in In re H.K. (An Infant), [1967] 2 Q.B. 617, at page 630:
This, as it seems to me, is a very different case, and I doubt whether it can be said that the immigration authorities are acting in a judicial or quasi-judicial capacity as those terms are generally understood. But at the same time, I myself think that even if an immigration officer is not in a judicial or quasi-judicial capacity, he must at any rate give the immigrant an opportunity of satisfying him of the matters in the subsection, and for that purpose let the immigrant know what his immediate impression is so that the immigrant can disabuse him. That is not, as see it, a question of acting or being required to act judicially, but of being required to act fairly. [...]
[36] It is clear that the visa officer must inform an applicant of his immediate impression so that the applicant can disabuse him. In the case at bar, according to the evidence submitted, the applicant was fully informed, during the three-hour interview, of Officer Schultz's concerns regarding his activities. Officer Schultz's interview notes indicate that he questioned the applicant extensively regarding his gambling convictions and activities, as well as about his job with the Fu Shing Motor Vehicle Company, and gave the applicant ample opportunity to answer his questions. The notes also indicate that Officer Schultz had a long and detailed discussion with the applicant concerning the mini-buses, and even informed the applicant that mini-bus drivers were known to be controlled by triad groups in Hong Kong. In addition, at the end of the interview, Officer Schultz indicated to the applicant that he believed, on the basis of the evidence before him. that the applicant was definitely a triad member, and indicated that he based his conclusion on, among other things, his gambling offences and his description at the interview of the circumstances of those offences. The visa officer gave the applicant the chance to ask questions or comment on his conclusions.
[37] As pointed out by the respondent, the duty of fairness does not require that the visa officer agree with the applicant's answers. In my opinion, the applicant was aware of the case he had to meet, and had many opportunities to disabuse Officer Schultz and to respond to his concerns. Consequently, given that the applicant was informed prior to the interview of the issues which would be discussed, that the visa officer clearly indicated to the applicant, during the interview, his concerns regarding the applicant's activities, and that the applicant had ample opportunity to disabuse the visa officer during the interview, I am of the opinion that the visa officer did not breach his duty of procedural fairness.
Issue #5:
[38] The applicant submits that, based on the Supreme Court of Canada's decision in Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817, the appropriate standard of review for Officer Schultz's decision should be whether the decision is reasonable. The applicant contends that Officer Schultz's decision, based on the evidence before him, was unreasonable. In Hao v. Canada (M.C.I.), [2000] F.C.J. No. 296 (T.D.), Reed J. held that the appropriate standard of review for a visa officer's decision was that of unreasonableness simpliciter. She stated the following, at paragraphs 3 to 9:
[3] In the Baker case, Madame Justice L'Heureux-Dubé, in writing for the Court, indicated that the applicable standard was to be determined by considering a number of factors: the presence or absence of a privative clause; the expertise of the decision-maker; the purpose of the provision of the legislation pursuant to which the decision under review was made (e.g.; the degree of discretion afforded to the decision-maker); the nature of the question raised in the review and, particularly, whether it relates to a determination of law or fact.
[4] Two of my colleagues have adopted the test of unreasonableness simpliciter as applicable to the review of a visa officer's decision: Zheng v. Canada (Minister of Citizenship and Immigration) (IMM-3809-98, January 10, 2000), [1998] F.C.J. No. 31, and Lu v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1907, (IMM-414-99, December 10, 1999). In Lu, Mr. Justice Muldoon, in weighing the factors, noted that questions of mixed fact and law and the absence of a privative clause weigh against the Court showing deference to the visa officer's decision; however, the expertise of the visa officer and the fact that the issues raised were not polycentric favoured deference by the Court.
[5] The difference of opinion as to the appropriate standard of review does not apply to questions of law, where the standard is one of correctness. Also, the appropriate standard is not usually a matter of debate in relation to questions of procedural fairness or procedural natural justice. Debate about the relevant standard of review relates to the review of the conclusions drawn by the decision maker from the application of the relevant law to the facts of the case.
[6] In the present case, there is no privative clause, and there is no requirement that leave be granted before a judicial review can proceed. There is a statutory right to judicial review, provided for by section 18.1 of the Federal Court Act. These factors tip the balance toward the unreasonableness simpliciter end of the scale.
[7] Visa officers have considerable expertise in assessing applicants. The decision-making is one that requires an assessment of the personal characteristics of individuals, and depends to a significant extend [sic] on a personal interview of the applicant. There is significant discretion given to visa officers, although that discretion is constrained by the existence of the points assessment system (see Zhao v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 213, (IMM-3382-98, February 17, 2000). These factors point to a standard that might be described as requiring a court to give deference even to an unreasonable decision.
[8] The particular questions raised in this judicial review are questions of mixed law and fact. As noted, Mr. Justice Muldoon, in Lu (supra), found this to be a factor leading to the conclusion that unreasonableness simpliciter is the appropriate test.
[9] I am prepared to adopt the standard of unreasonableness simpliciter as applicable to the visa officer's decision. I note that I have never been convinced that "patently unreasonable" differs in a significant way from "unreasonable". The word "patently" means clearly or obviously. If the unreasonableness of a decision is not clear or obvious, I do not see how that decision can be said to be unreasonable.
[39] I agree with Reed J.'s analysis. Consequently, for the reasons given by her, I am of the view that the standard of review for Officer Schultz's decision is that of unreasonableness simpliciter.
[40] In my opinion, Officer Schultz's conclusion that the applicant was inadmissible to Canada under paragraph 19(1)(c.2) of the Act was not unreasonable. Paragraph 19(1)(c.2) does not require that a visa officer be satisfied on a balance of probabilities that an applicant was or is a member of a criminal organization; it only requires "reasonable grounds to believe" that the applicant is a member of a criminal organization.
[41] In Chan v. Canada (M.E.I.) (1996), 34 Imm. L.R. (2d) 259 (F.C.T.D.), the applicant had been deemed inadmissible in Canada pursuant to s. 19(1)(c.2) of the Act. Among other arguments, the applicant claimed that the visa officer did not have "reasonable grounds" to believe that she was a member of a triad. In response to her argument, Cullen J. stated the following at page 273:
While the evidence to which the applicant directed me tends to support her case, the visa officer need not be convinced "beyond a reasonable doubt" that the applicant is a member of a triad. It must be shown that the visa officer had reasonable grounds to believe that the applicant is or was a member of an organization that there are reasonable grounds to believe is or was engaged in crime. This does not mean that there must be proof that the organization is criminal or that the applicant is or was an actual member of such an organization, but only that there are reasonable grounds to believe she is or was a member of such an organization. In my view, the proper test to be applied is the one set out in Canada (Attorney General) v. Jolly, [1975] F.C. 216, where the Federal Court of Appeal, in examining whether a potential visitor was a member of a subversive organization, stated the following at 225 and 226:
But where the fact to be ascertained on the evidence is whether there are reasonable grounds for such a belief, rather than the existence of the fact itself, it seems to me that to require proof of the fact itself and proceed to determine whether it has been established is to demand the proof of a different fact from that required to be ascertained. It seems to me that the use by the statute of the expression "reasonable grounds for believing" implies that the fact itself need not be established and that evidence which falls short of proving the subversive character of the organization will be sufficient if it is enough to show reasonable grounds for believing that the organization is one that advocates subversion by force, etc.
[42] In Chiau v. Canada (M.C.I.), [1998] 2 F.C. 642 (T.D.)[1], Dubé J. explained at paragraph 27, in the following terms, what he considered to be proof of "reasonable grounds":
[27] The standard of proof required to establish "reasonable grounds" is more than a flimsy suspicion, but less that the civil test of balance of probabilities. And, of course, a much lower standard that the criminal standard of "beyond a reasonable doubt". It is a bona fide belief in a serious possibility based on credible evidence. [footnote omitted]
Regarding the deference which should be accorded to visa officers in cases similar to the case at bar, Dubé J. added, at paragraph 31:
[31] The Supreme Court of Canada has held when dealing with a specialized administrative tribunal, courts will accord "significant deference" to it when performing its decision-making function. It is clear from the evidence that visa officer Delisle has extensive experience and specialized knowledge with reference to triad activities in Hong Kong and elsewhere. It is well within his competence to define the meaning of membership in a triad and more particularly in the Sun Yee On triad. He is clearly well aware of his role in protecting and maintaining the interests of Canadian security and his crucial obligation is to ensure that members of criminal organizations are not granted admission to Canada. Thus, the Court must view with considerable deference his definition of "reasonable grounds" and "member". In the case at bar, it certainly was within his jurisdiction to interpret paragraph 19(1)(c.2) in the manner he did, based on his extensive experience in this highly specialized field. It is not for the Court, sitting several thousand miles away from Hong Kong, to decide what constitutes membership in a Hong Kong triad. [footnote omitted]
[43] In view of the evidence before Officer Schultz, it is my opinion that he had reasonable grounds upon which to base his decision. It is not up to this Court to decide whether or not the applicant is a member of a triad; the issue is whether there were reasonable grounds for the visa officer to believe that the applicant should be denied entry pursuant to s. 19(1)(c.2) of the Act. I am satisfied that the totality of the record, including the confidential affidavits, supports Officer Schultz's conclusions. It should not be forgotten that Officer Schultz had considerable experience and knowledge with respect to the activities of triads in Hong Kong.
Issue #6:
[44] Lastly, the applicant submits that the documentary evidence attached to Officer Schultz's affidavit dated May 12, 2000 should not be considered by this Court in making its decision on this judicial review application because that evidence was not before Officer Schultz when he made his decision.
[45] Exhibits A, B and C to Officer Schultz's May 12, 2000 affidavit are extracts from a book about triad activity which was published after Officer Schultz's refusal of the applicant's application. Officer Schultz indicated during cross-examination on his affidavit that these exhibits do not contain new evidence, but are what he considered to be a good summary of the information generally known to him from other sources. These documents are analogous to Exhibits D, E and F to Officer Schultz's May 10, 2000 affidavit, which I have dealt with previously. In my view, the same thing can be said about those documents, which is that they merely summarize Officer Schultz's knowledge on the subject of triads, and that the concerns raised in his mind as a result of this knowledge were put to the applicant at the interview. Therefore, I see no reason why the documents should not be considered.
Conclusion:
[46] For these reasons, this application for judicial review shall be dismissed. Counsel for the applicant proposed that I certify the following question:
Where an applicant is found by a visa officer to be inadmissible pursuant to section 19 of the Immigration Act and the Appeal Division allows the appeal of that applicant's sponsor from the refusal of her spouse's application for permanent residence based on compassionate and humanitarian considerations, does the visa officer err when reviewing the person's application as required by subsection 77(5) of the Act when he finds the person inadmissible on the same ground as the original refusal based on evidence or information that was available at the time of the hearing of the appeal by the Appeal Division?
[47] Counsel for the Minister submits that I should not certify the question proposed by the applicant. In counsel's view, none of the issues raised by the applicant gives rise to a serious question of general importance. Alternatively, counsel for the Minister proposes that if the Court be inclined to certify a question, that the following question be certified:
Where the Immigration Appeal Division of the Immigration and Refugee Board (the "IAD") has allowed an appeal under s. 77(3)(b) of the Immigration Act from a refusal of a sponsored application for landing, which refusal was based on the sponsored applicant's inadmissibility to Canada under s. 19(1)(c.2) of the Immigration Act, does s. 77(5) of the Immigration Act prohibit the visa officer or immigration officer who has subsequently resumed review of the sponsored application from refusing the sponsored application on the basis of the sponsored applicant's inadmissibility to Canada under s. 19(1)(c.2) of the Immigration Act based on evidence that was not before the IAD when it allowed the appeal?
[48] In my view, the issue arising from subsection 77(5) of the Act raises a serious question of general importance and I will therefore certify the question proposed by counsel for the Minister.
Marc Nadon
JUDGE
OTTAWA, Ontario
March 26, 2001.
[1] On December 12, 2000, the Federal Court of Appeal upheld Dubé J.'s decision and consequently dismissed the applicant's appeal.