Federal Court of Appeal Decisions

Date: 20011221

Docket: A-289-00

Neutral citation: 2001 FCA 399

CORAM:        RICHARD C.J.

DÉCARY J.A.

NOËL J.A.

BETWEEN:

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                       Appellant

                                                                                 and

                                                                       YONG JIE QU

                                                                                                                                                   Respondent

                                       Heard at Montreal, Quebec on November 20, 2001.

                                Judgment delivered at Ottawa, Ontario, on December 21, 2001.

REASONS FOR JUDGMENT BY:                                                                                   RICHARD C.J.

CONCURRED IN BY:                                                                                                         DÉCARY J.A.

                                                                                                                                                     NOËL J.A.

Date: 20011221

Docket: A-289-00

Neutral citation: 2001 FCA 399

CORAM:        RICHARD C.J.

DÉCARY J.A.

NOËL J.A.

BETWEEN:

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                       Appellant

                                                                                 and

                                                                       YONG JIE QU

                                                                                                                                                   Respondent

                                                        REASONS FOR JUDGMENT

RICHARD C.J.

Introduction

[1]                 This is an appeal under section 83 of the Immigration Act from a judgment of the Federal Court, Trial Division rendered on April 20, 2000 by the application judge, ((2000) 188 F.T.R. 226) which granted the respondent's application for judicial review and quashed a decision which the visa officer rendered on September 18, 1998.

Background

[2]                 The events leading to this proceeding can be summarized as follows. The respondent is a citizen of the People's Republic of China who came to Canada in 1991 as a master's student at Concordia University in Montreal. He was active in the Chinese Students and Scholars Association (CSSA). While being a member of the CSSA, the respondent had contacts with officials at the Chinese Embassy in Ottawa related to his activities with the association and its members. On August 19, 1994, he applied for permanent residence status in Canada at the Canadian Consulate in Buffalo, New York.

[3]                 On February 16, 1995, a visa officer held an interview with the respondent to further assess his application. After the interview, the application was referred to the Canadian Security Intelligence Service (CSIS). On February 8, 1996, the respondent went to a second interview, held this time by two CSIS officers. On September 17, 1998, following the receipt of a report made by CSIS, the visa officer held a third interview.

[4]                 Although the respondent, in his application for judicial review, requested the Canadian Consulate General in Buffalo to send the complete immigration file to his solicitor and to the Court Registry, the CSIS report was not part of the record on judicial review. The CSIS information was withheld by the Canadian Consulate in Buffalo with the explanation that the material provided by CSIS has been edited out since its release would be injurious to national security.

[5]                 Counsel for the respondent did not challenge this exclusion and it was not part of the record before the application judge. This led the application judge to comment in his reasons that " The record before the Court is not as it should be."

[6]                 Upon completion of this third interview, the respondent was advised that the application for permanent residence would be refused. The visa officer based his refusal on subparagraph 19 (1)(f)(i) of the Immigration Act.

[7]                 Specifically, the visa officer was of the view that the applicant's activities in the CSSA and his meetings and communications with Chinese Embassy officials in Ottawa about the CSSA and its members gave rise to reasonable grounds to believe that he had engaged in acts of espionage and subversion within the meaning of subparagraph 19 (1)(f)(i) of the Immigration Act.

[8]                 The refusal letter reads as follows:

In the matter of your application for permanent residence in Canada, this is to confirm that I have determined that you do not meet with the requirements for immigration to Canada. I originally advised you in person of this decision at your interview on September 17, 1998.

At your interview, I expressed to you my serious concerns that there were reasonable grounds to believe that you had engaged in acts of espionage and subversion against democratic governments, institutions or processes as they are understood in Canada. I pointed out that by your own admission during the interview, you had engaged in a consistent pattern of reporting to the Embassy of the People's Republic of China in Ottawa; provided intelligence on the activities of individuals in a Canadian student organization known as the Chinese Students and Scholars Association (CSSA); and attempted to subvert this organization to meet the goals and objectives of a foreign government. At that time, I asked you to disabuse me of this concern, and advised you that failure to disabuse me of my concern would lead to the refusal of your application.

You responded by denying that you were an agent of a foreign government, but readily admitted your numerous contacts with Chinese diplomats over a protracted period when you were instrumental in "re-organising" the CSSA. You also admitted that you provided information to Chinese diplomats regarding individual members of the CSSA and admitted further that you were in open disagreement with pro-democracy students of this organization, that you had identified and reported on these individuals to the Embassy, and that you had sought to change the direction of the CSSA using funds provided by the Embassy in support of certain activities, to make it "sensitive to the Chinese Government and Chinese officials". You argued that any congruence between the objectives and policies of the Chinese government and your activities was purely coincidental, and that you acted strictly out of personal conviction. I noted however, that your admitted activities were so clearly those of an agent that your argument lacked all credibility, and that I was obliged to treat your denial as self-serving. I noted that you were in receipt of one of only twenty tuition waivers awarded by the Embassy to Chinese students attending English-language institutions in the province of Quebec, and that the implications of a quid pro [page79] quo were too obvious for me to ignore.

It is my determination, therefore, that you have not disabused me of my concern, and that based on your own testimony, there are reasonable grounds for me to believe that you are a person who has engaged in hostile and subversive activities on behalf of a foreign government, directed toward gathering information used for intelligence purposes, that relate to the Charter Rights of individuals in Canada.

Accordingly, I have found that you come within the inadmissible class of persons described in subparagraph 19(1)(f)(i) of the Immigration Act... .

[9]                 This subparagraph reads as follows:

19. (1) No person shall be granted admission who is a member of any of the following classes: [...] f) persons who there are reasonable grounds to believe (i) have engaged in acts of espionage or subversion against democratic government, institutions or processes, as they are understood in Canada, 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_: [...] f) celles don't il y a des motifs raisonnables de croire qu'elles_: (i) soit se sont livrées à des actes d'espionnage ou de subversion contre des institutions démocratiques, au sens où cette expression s'entend au Canada, le présent alinéa ne visant toutefois pas les personnes qui convainquent le ministre que leur admission ne serait nullement préjudiciable à l'intérêt national;

[10]            The respondent brought an application for judicial review before the Trial Division. Following a hearing, the application judge quashed the decision of the visa officer.

[11]            The application judge had "no hesitation" in concluding that the respondent's activities, as found by the visa officer, constitute espionage and subversion.

[12]            The application judge determined that the Immigration Act did not contain any definition of espionage or subversion. He held that espionage is simply a method of information gathering by spying, by acting in a covert way and that subversion connotes accomplishing change by illicit means or for improper purposes related to an organization.

[13]            He accepted the findings of fact or inferences made by the visa officer that the respondent had engaged in a constant pattern of reporting to the Embassy of China in Ottawa and provided intelligence on the activities of individuals in a Canadian student organization and that the respondent had also attempted to subvert this organization to meet the goals and objectives of a foreign government.

[14]            He held however that these acts of espionage and subversion were not directed against democratic government, institutions or processes, as they are understood in Canada, within the meaning of subparagraph 19(1)(f)(i) since the CSSA, a student organization at a Canadian university in respect of whom the applicant conducted his activities, does not fall within this definition.

[15]            The gist of his reasoning is set out in the following extract from his reasons:

[51] In my view, when Parliament spoke of democratic government, institutions or processes, it restricted coverage to those institutions or processes (such as the right to vote and elections) engaged in political governance or the system by which citizens organize and govern themselves in the State. In short, Parliament restricted the paragraph to public authorities which are elected by and are responsible to the constituency. These words have nothing to do with institutions or forms of institutional or social organizations in which individuals may otherwise interrelate with one another, such as church, school, work, sports, etc.

[52] I arrive at this conclusion for several reasons. First, the common understanding of these words in Canada; second, the purpose of the enactment which is exclusion from entry into Canada which is for a limited purpose; third, the scope of the paragraph which encompasses not only activities carried out on Canadian territory but abroad and necessarily limits the operation of the paragraph; fourth, the qualifier at the end of the paragraph where admission is permissible if the Minister is satisfied admission is not contrary to the national interest which conveys interests related to the State; fifth, the availability of other grounds of exclusion (such as criminality) contained in paragraph 19 and in other sections of the Act if a proper case is made out abroad, etc.

[53] Based on this interpretation, the CSSA, a student organization at Concordia, in respect of whom the applicant conducted his activities including reporting on its members to the officials of the Chinese Embassy in Ottawa, does not fall within the definition of "democratic government institutions or processes" within the meaning of those words in the relevant paragraph. The meaning of these words is confined to the application both here and extraterritorially, and what Parliament seeks to protect are institutions exercising political (governmental) authority incorporating democratic values as to how citizens operate in organized society.

[16]            Accordingly, he set aside the decision of the visa officer and ordered that the matter be returned for reconsideration by a different visa officer.

[17]            Pursuant to subsection 83(1) of the Immigration Act, the application judge also certified the following question: "Do these reasons correctly interpret paragraph 19(1)(f)(i) of the Immigration Act?".

Position of the Parties

[18]            The appellant submitted before this Court that the expression democratic government, institutions or processes, as they are understood in Canada must not be interpreted as narrowly as the application judge did. The appellant further argued that the objectives of the Immigration Act indicate that democracy is not limited to government institutions or processes but includes as well non-government institutions or processes. Finally, the appellant submitted that the evidence demonstrates that the CSSA is a democratic student association in Montreal with the objective of providing cultural and social activities to its members and promoting human rights and democracy in China. As a result, the CSSA is an association that can be included within the definition of a democratic process or institution. The appellant claims that the conduct of the respondent targeted the freedom of association and the freedom of speech of the individuals in the student group.

[19]            The respondent submitted that the application judge was right in restricting the definition of the phrase in subparagraph 19(1)(f)(i) and submitted that there was no evidence that the CSSA was a democratic association. Accordingly, the decision of the visa officer was unreasonable in the circumstances.

Canadian Immigration Policy

[20]            The purpose of subparagraph 19(1)(f)(i) of the Immigration Act, is to deny entry in Canada to persons where there are reasonable grounds to believe that they have engaged in espionage or subversion of a democratic government, institution or process. This provision must be read in the context of other provisions of the Immigration Act.

[21]            The objectives of the Canadian Immigration Policy as found in section 3 of the Immigration Act are to promote the domestic and international interest of Canada recognizing the need, among other considerations, to maintain and protect the health, safety and good order of Canadian society and to promote international order and justice by denying the use of Canadian territory to persons who are likely to engage in criminal activity.

[22]            Sections 4 and 5 of the Act set out the governing principles concerning the right to come into Canada or to remain in Canada according to whether the person is a Canadian citizen, a permanent resident, a Convention refugee or registered as an Indian pursuant to the Indian Act.

[23]            A Canadian citizen and a person registered as an Indian under the Indian Act have a right to remain in Canada whereas the right of a permanent resident or of a Convention refugee to remain in Canada is qualified by rules of inadmissibility found in section 19 of the Act. All other persons have no right to come into or remain in Canada.

[24]            The respondent is not a Canadian citizen, a permanent resident or a Convention refugee. Accordingly, the respondent does not have a right to come into or remain in Canada.

[25]            The Supreme Court of Canada in Chiarelli v. Canada (M.E.I.) [1992] 1 R.C.S. 711 at 733 stated that "The most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in the country".

Legislative History

[26]            The predecessor of subparagraph 19 (1)(f)(i) of the present Act was first introduced in the Act to amend the Immigration Act, S.C. 1919, c.25., by adding to the prohibited classes "persons who believe in or advocate the overthrow by force or violence of the Government of Canada or who disbelieve in or are opposed to organized government", or "persons members or affiliated with any organization entertaining or teaching disbelief in or opposition to organized government"; or "persons guilty of espionage against His Majesty or His Majesty's allies". In the French text, the subsections read : " personnes qui croient au renversement ou qui préconisent le renversement, par la force ou la violence, du gouvernement du Canada ou de la loi ou de l'autorité constituée, ou qui ne croient pas à un gouvernement organisé et s'y opposent" ou "personnes qui sont membres d'une ou affiliées à une organisation qui préconise ou qui enseigne la non-croyance ou l'opposition à un gouvernement organisé" ou "personnes coupables d'espionnage à l'égard de Sa Majesté ou de tout allié de Sa Majesté". This was carried forward in the 1927 Consolidation, R.S.C., 1927, c.93. The Immigration Act R.S.C.,1952, c.325 (1^st suppl.) introduced the words "democratic government, institutions or processes, as they are understood in Canada" in subsections 5 (l)(m)(n).

[27]            Therefore, while the earlier statutory language referred to "organized government" or "His Majesty", the present provision refers to "democratic government, institutions or processes as they are understood in Canada".

Standard of Proof

[28]            The standard of proof required in subparagraph 19(1)(f)(i) is one of "reasonable grounds". In Chiau v. Canada, [2001] 2 F.C. 297 (C.A.), this Court stated, at page 320, that "reasonable grounds" is a standard of proof that, while falling short of a balance of probabilities, nonetheless connotes a bona fide belief in a serious possibility based on credible evidence.

Standard of Review

[29]            The certified question involves the interpretation of a statute. The proper standard of review with respect to the interpretation of the words "democratic government, institutions or processes, as they are understood in Canada" is one of correctness.

Analysis

[30]            The principles of statutory interpretation are set out in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 where Iacobucci adopted Driedger's formulation in Construction of Statutes, (2^nd ed., 1983) and where he states at page 87: "Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament".

[31]            The Interpretation Act R.C.S. 1985 c.I-21 at section 12 provides that:

12. Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.

12. Tout texte est censé apporter une solution de droit et s'interprète de la manière la plus équitable et la plus large qui soit compatible avec la réalisation de son objet.

[32]            The English text of subparagraph 19(1)(f)(i) refers to " democratic government, institutions or processes, as they are understood in Canada"; while the French text refers to "institutions démocratiques, au sens où cette expression s'entend au Canada". The application judge found that: "These differences in the official languages are not, in my view, of any significance." Counsel for the appellant, while bringing our attention to the difference in the wording, agreed that it was not a difference that was significant for the purpose of statutory interpretation.

[33]            A reading of both versions makes it clear that the legislator intended that a broad meaning be given to the words found in this subparagraph.

[34]            In applying subparagraph 19(1)(f)(i) of the Immigration Act, the visa officer must examine firstly, the status of the organization, i.e., is it a democratic institution - institution démocratique within the meaning of the subparagraph, and secondly the conduct of the non-citizen, i.e., whether the non-citizen has engage in acts of espionage or subversion against that democratic institution. The conduct of the non-citizen for the purpose of the subparagraph is only relevant if a determination has been made that the organization has the required status.

[35]            In our view, the application judge erred when he held that the expression "democratic government, institutions or processes" (or "institutions démocratiques" as used in the French text) was restricted to institutions and processes involving "political governance". The expression also encompasses institutions and processes which although non-governmental, are part and parcel of the democratic fabric of Canada and there is no basis for limiting the purpose of paragraph 19(1)(f) in the manner suggested by the application judge.

[36]            Both the case law and the plain dictionary meaning of the relevant terms support the view that the expression in issue as it is understood in Canada is capable of a wide meaning. For instance, in Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211, the Supreme Court recognized that a union is a democratic institution different from government:

[p.326] I would also add that some of the concerns which might normally be raised by a compelled association are tempered when that association is, as in this case, established in accordance with democratic principles. Professor Norman Cantor, "Forced Payments to Service Institutions and Constitutional Interests in Ideological Non-Association" (1983), 36 Rutgers L. Rev. 3, is clear in his view that government should be able to confer on democratic institutions powers to receive payments for services and to contribute to causes serving their ends even though these may be objected to by dissenters.

[p. 330] The essential question is whether democracy in the workplace has been kept within its proper or constitutionally permissible sphere.

The experience of the United States is helpful in considering this difficult issue. The Courts in that country have attempted to make a clear distinction between an individual's relationship with government and his or her relationship with other democratic institutions, such as professional associations and unions. ...

[p. 331] With respect to democratic institutions other than the government, and to unions in particular, the United States Supreme Court has attempted to draw the line between those actions designed "to promote the cause which justified bringing the group together" [...] and those actions which fall outside that sphere ...     

[37]            We can conclude from Lavigne that there are democratic institutions in Canada other than the government, such as, but not limited to, professional associations and unions.

[38]            In Professional Institute of the Public Service of Canada v. Commissioner of the Northwest Territories, [1990] 2 S.C.R. 367 at page 381, Justice Cory (dissenting on another issue, i.e., the right to bargain collectively) stated that the right of an individual to associate with others enables the individual to better participate in the democratic process by acting through a group, therefore recognizing that democratic processes are not limited to the government.

The right of the individual employee to join the association of his or her choice seems to me to be of fundamental importance. It not only enables the individual to better participate in the democratic process by acting through a group, but it permits the individuals to act in concert to seek fairness in wage settlements and working conditions. At the very least, the forming or changing of an entity to undertake collective bargaining is entitled to the protection of the Charter right of freedom of association.

[39]            In Re Public service Employee Relations Act, [1987] 1 R.C.S. 313, at page 396 Justice McIntyre recognized the role of freedom of association in a democracy:

Our society supports a multiplicity of organized groups, clubs and associations which further many different objectives, religious, political, educational, scientific, recreational, and charitable. This exercise of freedom of association serves more than the individual interest, advances more than the individual cause; it promotes general social goals. Of particular importance is the indispensable role played by freedom of association in the functioning of democracy.

[40]            In the Dictionary of Politics, 7^th ed., Lawrence, Virginia, Brunswick Publishing Corporation, 1992, by Walter John Raymond, the words "institution" is defined as follows:

Institution. The delivery system for the implementation of an idea, a will, or a certain desired end, consisting of people who are behaving and interacting according to preset patterns (e.g., discipline and loyalty), and who perform their designated functions according to preset goals and objectives.

[41]            According to Le Grand Robert de la Langue Française, 1985, the current meaning of the word "institution" is as follows:

Institution. Cour. La chose instituée (personne morale, groupement, fondation, régime légal, social). ... institutions humaines, institution nationale, internationale, institutions politiques, religieuses. ...

L'institution peut se présenter sous la forme d'une personne morale de droit public (ex.: État, Parlement), ou de droit privé (ex.: association), ou d'un groupement non personnalisé, ou d'une fondation, ou d'un régime légal ...

Collectif. Didact. L'institution: l'ensemble des structures organisées tendant à se perpétuer, dans chaque secteur de l'activité sociale. L'institution juridique, littéraire, artistique...d'une société.                                                        

[42]            The Blackwell Encyclopaedia of Political Science, Oxford/Cambridge, Mass., Blackwell Publishers, 1991, at pages 167 and 168 also acknowledges that democratic processes and democratic institutions are not always related to government:

Modern Democratic regimes are distinguished by the existence, legality and legitimacy of a variety of autonomous organizations and associations that are relatively independent in relation to the government and to one and another. This characteristic is often referred to as PLURALISM.

[43]            In the Oxford Companion to Politics of the World, York/Oxford, Oxford University Press, 1993, at page 223, in contemporary circumstances, marked by a high degree of social, economic, and political differentiation, the author concluded that: A system of institutions to promote discussion, debate, and competition among divergent views, a system encompassing the formation of movements, pressure group, and/or political parties with leaderships to help press their cases appears both necessary and desirable.

[44]            The Supreme Court in Reference Re Secession of Quebec, [1998] 2 S.C.R. 217 at page 254 made this significant statement on the democratic process:

Democracy is not simply concerned with the process of government. On the contrary, as suggested in Switzman v. Elbling, supra, at p. 306, democracy is fundamentally connected to substantive goals, most importantly, the promotion of self-government. Democracy accommodates cultural and group identities: Reference re Provincial Electoral Boundaries, at p. 188. Put another way, a sovereign people exercises its right to self-government through the democratic process. In considering the scope and purpose of the Charter, the Court in R. v. Oakes, [1986] 1 S.C.R. 103, articulated some of the values inherent in the notion of democracy (at p. 136):

The Court must be guided by the values and principles essential to a free and democratic society which I believe to embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society.

[45]            It follows that both the words "institution" and "process" when qualified by the word "democratic" are capable of a meaning which transcends government.

[46]            In Canada, a democratic institution is not limited to a political institution, it includes organized groups who seek through democratic means to influence government policies and decisions.

[47]            Canada is a pluralistic society with a variety of autonomous organizations independent of the government and to one and other.

[48]            As a free and democratic society, Canada values and protects democratic non-governmental institutions which enhance the participation of individuals and groups in society.

[49]            As with the meaning to be given to freedom of association in s.2(d) of the Charter, the concept must be applied to a wide range of associations or organizations of a political, religious, social or economic nature, with a wide variety of objects, as well as activity by which the objects may be pursued (see Reference Re Public Service Employee Relations Act (Alberta), [1987] 1 S.C.R. 313, Le Dain J. at page 390).

[50]            Accordingly, a democratic institution for the purpose of subparagraph 19(1)(f)(i) of the Immigration Act consists of a structured group of individuals established in accordance with democratic principles with preset goals and objectives who are engaged in lawful activities in Canada of a political, religious, social or economic nature.

[51]            In the case of trade unions, professional associations and political parties, it will be easier to ascertain that their structures, their goals and their activities bring them within the definition of a democratic institution for the purpose of the subparagraph.

Answer to certified question

[52]            The answer to the certified question is as follows: the application judge erred in his interpretation of the expression democratic government, institutions or processes, as they are understood in Canada, by limiting it to institutions exercising political (governmental) authority.

Disposition

[53]            Based on his interpretation of subparagraph 19(1)(f)(i) of the Immigration Act, the application judge concluded that the CSSA was not a democratic institution for the purpose of the subparagraph and therefore did not address the issue of whether the CSSA was a democratic institution within the broader meaning we have given to this expression.

[54]            In our view the visa officer also did not address in the refusal letter the status of the CSSA. The refusal letter deals primarily with the issue of espionage and subversion and refers to the gathering of information used for intelligence purposes, that relate to the Charter Rights of individuals in Canada.

[55]            The visa officer did not in his refusal letter address the issue of the status of the CSSA.

[56]            Accordingly, in view of our answer to the certified question, the appeal will be allowed and, making the Order that the application judge should have made, the matter will be remitted to a visa officer for redetermination in accordance with these reasons.

                   "J. Richard"                      

     Chief Justice

"I agree

Robert Décary J.A."

"I agree

Marc Noël J.A."

Appendix

Immigration Act, Statutes of Canada 1919, c.25.

Immigration Act, R.S.C. 1985, c. I-2

Part I Canadian Immigration Policy / Partie I Politique Canadienne d'Immigration

Objectives / Objectifs

Immigration Objectives / Objectifs en matière d'immigration

Principles / Principes

                                                        [...]

Part III - Exclusion and Removal / Partie III - Exclusion et Renvoi

Inadmissible Classes / Catégories non admissibles

Inadmissible Persons / Personnes non admissibles