IMM-1442-96
Between:
ABDUL MANNON CHOWDHURY,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent,
REASONS FOR ORDER
Muldoon, J.
Let the attached transcript of my Reasons for Order delivered orally from the bench at Vancouver, British Columbia on January 27, 1998 now edited, be filed to comply with section 51 of the Federal Court Act.
(Sgd.) "F.C. Muldoon"
Judge
OTTAWA
March 10, 1998
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THE MINISTER OF CITIZENSHIP |
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MR. A. WLODYKA, Appearing for the Applicant; |
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MS. E. RESNICK Appearing for the Respondent. |
REASONS FOR JUDGMENT
| The court is prepared to give a decision on this case now and because of the questioning which has been directed to counsel, it will come as no surprise. But first the court has to be very clear that the Minister has no reason to be displeased with the efforts of her counsel because counsel argued as clearly, as lucidly and as energetically as could ever be expected. But there is an old saying, which the Court is going to dress up in more politically-correct terms, and that is that "you can't make a silk purse out of a swine's ear". So counsel can be perfectly first-rate in competence and effort and professionalism, but you have the case with which you are saddled, and that, the court has to observe, was Ms. Resnick's case. |
| The court is not convinced that the visa officer did an appropriate job in this case, but rather, that the visa officer did go off the rails several times. The refusal letter indicates errors in the visa officer's appreciation of the applicant's case, in this court's opinion. The issues which were discussed, and discussed at length by counsel, can be disposed of in some respects very quickly. |
| The court does not find bad faith on the part of the visa officer. The court is not satisfied with the visa officer's efforts, but no bad faith is apparent. The visa officer appears to need more education in the type of work he does. If he does not understand something, and he admitted on re-examination at the occasion of his cross-examination, he didn't really understand the effect of Mr. Justice Hall's order referred to by Dr. Chowdhury in his affidavit, he ought to enquire into the matter every time. Indeed, the visa officer indicated a lack of understanding there. |
| He took, what would one say? a young idealist's -- we don't know how old the visa officer is. He took a young idealist's, perhaps an intolerant young idealist's attitude, to the applicant in terms of that insurance policy, while betraying a misunderstanding of it himself. |
| The insurance policy which Dr. Chowdhury had arranged for the applicant appears to be ordinary travel insurance. Of course it would not cover the orthopedic surgery for which Mr. Chowdhury, the applicant, was hoping to come to Canada to have performed. It was the same kind of insurance most of us prudently take before we go on vacation in case of any accident or liability during the course of the travel. It does not indemnify for a previous injury or deformity. That is, the insurance covers travel accidents. |
| If Mr. Warner, the visa officer, persisted in asking fool questions of the applicant during the interview about that insurance, so be it, but the applicant could do more than respond as he did to the questioner, who was also his judge, with whom he certainly did not want to have an unpleasant confrontation. |
| The matter of the expenses and how the trip would be financed is clear, clear from the mistakes of the visa officer. The applicant had an air ticket prepaid. He had the letter of Dr. Sabir which is clear though not by direct assertion but clear nonetheless that Dr. Sabir, not the applicant's brother, would be performing the surgery. The applicant's brother, Dr. Chowdhury, after all is an internalist, a specialist in internal medicine, not an orthopedic surgeon. |
| The insurance certificate was given. The bank certificate was given. Dr. Sabir said the surgery should cost between $3,000 and $5,000, $5,000 being the upper limit. The applicant by the bank certificate which was produced had $5,000 at least in his account. So he came to Canada -- intended to come to Canada and would have come to Canada with the cost of the operation, with travel insurance, with a pre-paid return airline ticket. It would be very little drain on his brother to give him a bed and breakfast at the brother's home. That would be a trifling expense, and that, it appears, is what the brother, Dr. Chowdhury, offered to do for the applicant. |
| Now, the problem with the visa officer is his coyness. The court has heard very cogent jurisprudence, indeed jurisprudence from the Supreme Court of Canada, in which a number of last century English cases were cited about giving a certain latitude to the judge. The problem with the kind of "judge" who is a visa officer, however, is that he is also the questioner. "Amen" to the jurisprudence which has been cited, but a visa officer must not -- is under an obligation -- not to play coy with an applicant. Why? Because the applicant has onus to prove his case. |
| If the visa officer knows something but does not clarify it, if the visa officer does not disclose what his problems are, he is being coy with the applicant and he is breaching his duty. That is what this court finds the visa officer did in this case. |
| For example, on cross-examination the visa officer said "Yes, I noticed Dr. Sabir's letter," "Yes, I noticed that the applicant said" through an interpreter it appears, "that his brother was going to perform the surgery, but I knew his brother was an internalist." And he didn't ask the applicant, apparently didn't ask the applicant directly: "How can your brother, an internalist, perform surgery?" He asked about that and the applicant answered his question, half of his question but not the other half, and he let it drop as if it were an unimportant question which he made important then in his reasons. He had a duty to pursue that. |
| If he harboured it, he ought to have clarified it and not kept it to himself, not to have reserved it to himself as if he were a cross-examiner in a trial where the witness has another counsel to whom to answer, and a judge. The visa officer is both questioner and judge, and requires to be scrupulous in disclosing his concerns to the applicant. |
| This visa officer was not scrupulous in disclosing his concerns to the applicant and, for that reason, a lack of fairness, not bad faith but a lack of fairness or competence, but the lack of competence created a lack of fairness in this case. The visa officer's decision ought to be quashed. The court refers, of course, to the visa officer's decision: |
| "Given at the Canadian Embassy in Bangkok, Thailand, dated February 28th, 1996, and received on March 29th, 1996, whereby the visa officer refused an application for a visitor's visa." |
| Now, quashing it is one thing. Unfortunately, the court is not going to direct, or give a mandamus, compelling the respondent to process the application because the court is not in the position to say that the applicant deserves a visitor's visa. That is a role to be played by an immigration officer or a visa officer. |
| The matter of the application, if the applicant be still interested in coming to Canada as a visitor, must be adjudicated by another visa officer quite apart from the visa officer whose decision is under review here. |
| Counsel has informed the court that it would even be at another Canadian Embassy, or the high commission in Singapore. Hopefully it will be a more experienced visa officer who may put the applicant, of course, to the test, and is bound to, because the onus is on the applicant, but must not play coy with the applicant; must disclose concerns; disclose documents. |
| Perhaps by now the applicant will know more about what his brother's affidavit in the British Columbia Supreme Court means. Maybe the visa officer will, too. He ought to. He ought to inform himself about what matters mean, what the papers mean, and not be lording it over the applicant. I am referring there especially to the matter of the travel insurance. |
| Costs have been asked. And understandably counsel have to be paid in these matters. The Court is going to award double party-and-party costs. That is not a great fortune. It will not break Canada's treasury, but it will compensate somewhat, go somewhat to compensation. The court can imagine that counsel think the court is out of touch, in matters of costs. |
| The court is not out of touch, but some compensation is in order and that is in face of the rule which says that on judicial review applications no costs are allowed except in the matter of special circumstances. There is a special circumstance here but the quantum of costs is in the discretion of the court and the court says double party-and-party costs for this application should be adequate in the circumstances. Court doesn't gouge the government just because it has the deep pocket. It's another litigant in these matters. |
| The court is going to call upon counsel for the applicant to draft an appropriate form of order under Rule 337, and it ought to be disclosed to the Minister's counsel and, if the two counsel can agree on a form of order to dispose of this matter, so be it. The court will accept that. If the counsel cannot agree on the appropriate form of order, which has been indicated now, then counsel and the court will have to decide on the form if there's any question or disagreement. |
| There is no question of general importance in these matters, or is there? |
MR. WLODYKA: None raised by me.
MS. RESNICK: No, none raised by the respondent, My Lord.
| THE COURT: Thank you. So neither counsel has a serious question of general importance to pose out of this circumstance, nor does the court. Are there any questions of any kind? |
| MS. RESNICK: In the order that you're referring to, is it different than the usual order? Would it not be the visa officer's decision is set aside and sent back to a different visa officer to be determined in accordance with the law with costs against the Minister? Is that what you are referring to? |
| THE COURT: Is that what you think it would be? |
| MR. WLODYKA: That's fine. It seems to me that that's what we were -- |
| THE COURT: Well, then we've just performed that exercise. Thank you. That is exactly what the order will be. And if there be no further questions, this court will now rise. |
| (PROCEEDINGS CONCLUDED AT 1:43 P.M.) |
| I HEREBY CERTIFY THAT THE FOREGOING is |
| a true and accurate transcript of the |
| proceedings herein to the best of my |
| _____________________________________ |
| G.K. BEMISTER Court Reporter |
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
HEARING DATED: January 27, 1998
COURT NO.: IMM-1442-96
STYLE OF CAUSE: ABDUL MANNON CHOWDHURY
v.
MCI
PLACE OF HEARING: Vancouver, BC
REASONS FOR ORDER OF MULDOON, J.
dated March 10, 1998
APPEARANCES:
Mr. Andrew Wlodyka for Applicant
Ms. Esta Resnick for Respondent
SOLICITORS OF RECORD:
Wong & Associates for Applicant
Vancouver, BC
George Thomson for Respondent
Deputy Attorney General
of Canada