Date: 19980420
Docket: IMM-1061-97
BETWEEN:
CHI WAH ANTHONY LEUNG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON, J.
[1] These reasons arise out of an application for judicial review of a decision of Vice-consul James C. Gill (the "Vice-consul") wherein he rejected the applicant's application for permanent residence in Canada. The applicant's application was made in the independent category as an accountant, CCDO-1171-114. The Vice-consul's decision is dated the 11th of February, 1997.
[2] The applicant is a permanent resident of Hong Kong. He has extensive experience as an accountant.
[3] On or about the 24th of February, 1989, the applicant was convicted in Hong Kong of theft, forgery of a document and uttering a forged document. He was sentenced to four months imprisonment on each conviction with the sentences to run concurrently.
[4] The applicant's interview in connection with his application for permanent residence was conducted at New York. The visa officer who conducted the interview was favourably impressed by the applicant. The following are extracts from his computerized notes of the interview:
| ENJOYED INTERVIEWING THIS MAN, AS AN APPLICANT, FAVOURABLY IMPRESSED. QUALIFIES AS ACCOUNTANT BASED ON WORK BACKGROUND, HAS WORKED FOR SOME IMPRESSIVE FIRM(S) INCLUDING MULTINATIONALS. HAS PASSED EXAM FOR CERT MGMT ACCOUNTANTS IN CDA. PRESENTLY WORKING AS CONTROLLER FOR AMERICAN STANDARD COMPANY OUT OF GUANGZHOU, |
| ... |
| HE COMES ACROSS AS SERIOUS, HARDWORKING AND WITH A DEDICATED WORK ETHIC. |
| ... |
| HE NEEDS TO SUBMIT REHAB FEE, PERSONAL STATEMENTS AS TO WHY HE SHOULD BE GRANTED REHAB, THREE RECENT LETTERS OF RECOMM. WHEN REC'D, CAN PREPARE REHAB. |
| IN CONCLUSION, WAS SUITABLY IMPRESSED WITH SUBJ AND AM OF THE OPINION THAT HE IS REHABILITATED AND I CAN WRITE UP REHAB STATEMENT WITHOUT RESERVATION. |
[5] The material required to support an application to the Minister for approval of rehabilitation was submitted to the visa officer on behalf of the applicant. The visa officer made the following comments in support of the application to the Minister:
| It is rare in the course of an Immigration Officer's career that an applicant for permanent residence in Canada exudes so fundamentally the features of rehabilitation, remorsefulness, and contriteness as portrayed to myself as the interviewing officer and writer of this rehabilitation submission. Mr. Leung, following a term of imprisonment in Hong Kong which was served concurrently for his three offences, was fully able to move forward successfully in his professional and personal life. He is regarded as a serious person with a dedicated work ethic. He has been able to acquire employment as an Accountant/Controller with internationally - recognized and prestigious corporations. He readily admits his indiscretion for stealing and forging a check. He does not attempt to find excuses or elicit pity. He acknowledges that he has contravened the law and accepted the penalty and impact of his offence. It is perceived that Mr. Leung embodies strong personal attributes to become a contributing member of Canadian society and to adhere to living his life according to the tenets of good law and order as defined in the objectives of the Canada Immigration Act. |
A reviewing officer endorsed the visa officer's submissions without further comment.
[6] It was not in question before me that the visa officer has the responsibility for assessing an application for permanent residence in Canada. Her or his discretion is nonetheless proscribed by law. The relevant portions of subsections 19(1) and (2) of the Immigration Act1, for the purposes of this matter, read as follows:
| 19. (1) No person shall be granted admission who is a member of any of the following classes: ... (c.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 under any Act of Parliament by a maximum term of imprisonment of ten years or more, or ... 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; .... (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, or ... 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. (1) Les personnes suivantes appartiennent à une catégorie non admissible_: ... c.1) celles 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, d'un emprisonnement maximal égal ou supérieur à 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, .... (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, |
| [emphasis added] |
[Je souligne] |
[7] It was not in dispute before me that one or more of the offences of which the applicant was convicted are described in paragraphs 19(1)(c.1) or 19(2)(a.1). It was also no in dispute that the five year waiting period referred to in the closing words of those paragraphs had elapsed when the application for approval of rehabilitation was completed.
[8] The applicant's application for approval of rehabilitation was submitted to the Minister with appropriate supporting documentation. Some months later, the Canadian office in New York was advised as follows:
| SECTION 19(1)(C.1) REFUSAL |
| Application for subject's Rehabilitation was refused by the Minister on November 22, 1996. No reason[s] were provided. |
| If you have any question on this matter please do not hesitate to contact us. |
[9] In the result, the decision letter here under review was provided to the applicant in care of his solicitor. It reads in part as follows:
| I have determined that you are a member of the class of persons who are inadmissible to Canada described in subparagraph 19(1)(c.1)(i) of the Immigration Act. |
| ... |
| ... The Minister of Citizenship and Immigration has refused approval of your rehabilitation. The Minister's decision is a discretionary authority from which there are no provisions for appeal. An application for Judicial review of the Minister's decision may only be made to the Trial Division of the Federal Court of Canada with leave of the Court. |
| ... |
[10] An application for leave and for judicial review of the Minister's decision was filed. The application for leave was dismissed.
[11] Before me, counsel for the applicant urged that the Minister's decision was, on its face, perverse or, at the very least, that there is, on the evidence before me, an indication of evidence and representations before the Minister which manifestly required a different result. He urged that, in the absence of reasons which might have explained how the result was indeed rational, an obligation arose on the visa officer, the ultimate decision maker in respect of the applicant's application for landing, to enquire, as he was invited to do, as to the basis of the Minister's decision, to ensure that all relevant information was before the Minister, and, at the very least, to pass along to the applicant the result of such an inquiry. Counsel urged that this obligation was particularly important in circumstances where, as here, the applicant relied on the visa officer as the conduit through which his application for a determination regarding rehabilitation was made and, indeed, as the sole conduit through which he received notice of the result regarding his application for rehabilitation.
[12] Counsel relied by analogy on court decisions in respect of situations where visa officers are required to make decisions taking into account advice provided to them by medical officers. He referred me to the following passage from Fei v. Canada (Minister of Citizenship & Immigration)2 where Mr. Justice Heald, at page 279, wrote:
| In my view, when a valid medical opinion is formed under subparagraph 19(1)(a)(ii), that opinion is binding on the visa officer. However, where an opinion involves a patently unreasonable error of fact, is inconsistent or incoherent, or was generated in a fashion contrary to the principles of natural justice, an error of jurisdiction is involved. It cannot be said to be a valid opinion under subparagraph 19(1)(a)(ii). |
[13] Counsel argued that the same could be said here in respect of the Minister's decision with an equivalent impact on the visa office's decision.
[14] I am satisfied that the analogy is not apt. The responsibility for being satisfied as to rehabilitation is here vested in the Minister. Her responsibility is discretionary. She need only be satisfied, but she must be satisfied for inadmissibility to be lifted. Rehabilitation involves an assessment as to future comportment based upon actions, attitudes and comportment since conviction. It is worthy of note that the responsibility for rehabilitation decisions has been vested in the Minister, not in officials such as visa officers. It was for the Minister to determine whether or not she was satisfied and the fact that the visa officer who prepared the submission to her was himself satisfied is of no consequence.
[15] I conclude that it was not for an official in the Minister's department of government to question the basis of the Minister's lack of satisfaction. The Minister is not in a comparable position to the position of a medical officer in the public service or under contract to the Minister's department. If the applicant was concerned with regard to the Minister's determination, it was open to him to seek judicial review of that determination. While no reasons were provided for the determination, he was eventually notified of the determination. He was notified of his right to seek judicial review. He sought leave to commence judicial review, albeit unsuccessfully. In all of the circumstances, the visa officer had no obligation to enquire further.
[16] For the foregoing reasons, I conclude that the Vice-consul made no reviewable error. This application for judicial review will be dismissed.
[17] Counsel for the applicant recommended certification of a question in the following form:
| Is a visa officer under a duty to question the reasonableness of the Minister's decision made pursuant to section 19(1)(c.1)(i) where on the face of the record the decision may be unreasonable? |
Counsel for the respondent did not oppose certification of the question proposed and proposed no additional question. I am not aware that the question proposed, which clearly arises in this matter, has previously come before the Court. I am satisfied that it is a serious question of general importance. The question substantially as proposed will be certified.
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Judge
Ottawa, Ontario
April 20, 1998
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