Date: 20061115
Docket: IMM-1556-06
Citation: 2006 FC 1381
Ottawa, Ontario, November 15th,
2006
PRESENT: The
Honourable Mr. Justice de Montigny
BETWEEN:
RUOFAN ZHANG
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGEMENT
AND JUDGMENT
[1]
Mr.
Ruofan Zhang is a 25-year-old Chinese citizen who came to Canada in 2002 as a
student. While his study permit was originally issued for a period of two
years, he was able to extend it for a year. Unfortunately for him, his second
application to extend his visa was refused, as well as his subsequent
application to restore his student permit so he could continue his studies. This
application for judicial review relates to the decision by an immigration
officer, Anthony Maekawa, to refuse his restoration application.
[2]
Mr.
Zhang has raised a number of arguments to support his challenge of the
immigration officer’s decision. Although some of these arguments are without
merit, I have concluded that the impugned decision must be quashed because it
is not substantiated by any reasons whatsoever.
BACKGROUND
[3]
Mr.
Zhang moved to British Columbia in 2002 on a temporary student permit that
was valid until August 2004. He subsequently applied for and was granted an
extension of his temporary resident status to August 30, 2005. Mr. Zhang first
studied English as a second language until December 2004 (first at Sprott Shaw Community
College,
and then at Victor
College),
before enrolling in a Carpentry and Construction Industry Training Program at
Canadian Community College (CCC) in January 2005.
[4]
Since
he wanted to continue these studies, Mr. Zhang applied to have his study permit
extended in August 2005. After having interviewed him by telephone (and with no
interpreter) on December 14, 2005, immigration officer Dorothy Ng decided the
same day to refuse his application. In the operative portion of her letter
informing Mr. Zhang of her decision, Officer Ng wrote:
Dear Mr. Zhang,
Any person wishing to extend
their temporary resident status in Canada
must satisfy an officer that they meet the criteria. This includes satisfying
the officer that they will leave Canada
by the end of the period authorized for their stay, that they will not
contravene the conditions of entry and that they do not belong in a category of
persons inadmissible to Canada under the Immigration and
Refugee Protection Act.
In reaching a decision, an
officer considers several factors, which include but are not limited to:
·
the
applicant’s travel and identity documents;
·
the reason
for travel to Canada and the reason for applying
for the extension;
·
the
applicant’s financial means for the extended stay and return home;
·
The
applicant’s ties to his/her country of residence, including immigration status,
employment and family ties;
·
whether the
applicant would be likely to leave Canada
at the end of their authorized stay.
After considering all the
circumstances of your case, I am not satisfied that you meet the requirements
of the Act and Regulations. Your application for an extension of your study
permit has been refused. Since I have refused your application for a
renewal, you are now without status in Canada. You may be reported under subsection A
44(1) of the Immigration and Refugee Protection Act for remaining in Canada without authorization.
[5]
It
appears from the notes she entered in the Field Operations Support System
(FOSS), the computerized note-taking system maintained by Citizenship and
Immigration Canada (CIC), that Officer Ng believed Mr. Zhang had decided to
study carpentry instead of commerce so he could stay in Canada and work. She
also wrote that Mr. Zhang could not confirm he had completed any of the courses
listed on his CCC transcript. She determined he had only finished one course
there, and was only enrolled in one course at the time of the interview. On
that basis, she concluded he was not a bona fide student, and did not
intend to leave Canada at the end of his stay.
[6]
Mr.
Zhang did not leave Canada, nor did he seek leave of this Court to
challenge Officer Ng’s decision to refuse his extension application. Instead,
Mr. Zhang submitted a restoration application on December 28, 2005, seeking to
re-acquire the temporary resident status he had lost just two weeks earlier. In
his application, he submitted further evidence of his attendance at CCC, and of
his acceptance at Northwest Community College in Terrace, British
Columbia.
It is worth quoting in full from the letter of December 21, 2005 addressed to
CIC by Ms. Nuala Power, president of the CCC:
This letter is to address the
rejection of the extension of the study permit for Mr. Ruo Fan Zhang. I do not
believe the following facts were made clear when the student talked to the
immigration officer.
Mr. Zhang has completed the
introduction to Construction Framing Program at Canadian Community College in Vancouver, B.C. He was enrolled full time and
completed the course with satisfactory grades including in Safety Certificates.
He has now been accepted to do
the next part of his training which he will do at Northwest Community College, a public community college
in Terrace, northern British
Columbia. Canadian
Community College has an articulation agreement
with Northwest
Community College
for this program. I am enclosing a copy of the acceptance letter from Northwest Community College.
Mr. Zhang has been an
excellent and engaged student in our program. He was tested, selected and
admitted by Northwest
Community College
because of the construction and language skills he has gained. After graduating
from Northwest Community College, he will be eligible for a
one-year work permit, as allowed for graduates of public Colleges and
Universities. There is currently a desperate need for trained
carpenters/framers in all of British Columbia and therefore he will easily be
able to find gainful employment for that year that will be a benefit to British Columbia and Canada as a whole. In fact the city government
of Terrace, B.C. has welcomed this articulation with the Canadian Community College and Northwest Community College. If you have any questions
please feel free to contact me at …
[7]
Mr.
Zhang’s restoration application was assigned to Officer Maekawa, who refused it
on March 2, 2006. The officer’s letter essentially quoted paragraph 47(a) of
the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA),
and section 182 of its accompanying Regulations, and simply stated that the
application was refused as he was not satisfied Mr. Zhang met those criteria.
[8]
On
May 1, 2006, a Minister’s Delegate held a hearing and determined Mr. Zhang was
inadmissible to Canada because he had not left Canada at the end
of the period authorized for his stay. As a consequence, an exclusion order was
issued against Mr. Zhang.
APPLICANT’S SUBMISSIONS
[9]
Mr.
Zhang submitted a number of arguments in furtherance of his application for
judicial review, but most of them relate to alleged breaches of procedural
fairness. First and foremost, he claims the restoration decision contains no
reasons, aside from concluding he did not meet the criteria in paragraph 47(a)
of the IRPA and section 182 of the Regulations.
[10]
He
also argues that Officer Maekawa had a duty to consider the extensive
documentary evidence Mr. Zhang submitted in support of his application and to
provide reasons why he did not consider it sufficient to restore Mr. Zhang’s
status.
[11]
Along
the same lines, Mr. Zhang contends that Officer Maekawa fettered his discretion
by relying exclusively on Officer Ng’s conclusions as the basis of his own
refusal, without analyzing Mr. Zhang’s new study plan and corroborating
documents. Thus, he claims, Officer Maekawa violated the principle of “he who
hears must decide” by relying on Officer Ng’s conclusions from the phone
interview.
[12]
Mr.
Zhang’s other set of arguments has to do with alleged factual errors. He claims,
for example, that it was patently unreasonable for Officer Maekawa to conclude
he was in the same course and facility for both his extension and restoration
applications, as appears from his entry in the FOSS system on January 23, 2006.
In his extension application, he asked to study at the CCC from August 2005
until November 24, 2006, while in his restoration application, he showed he had
been accepted at Northwest in January 2006 for one year in its English as a
Second Language Carpentry Program in Terrace, B.C.
[13]
He
also submits that Officer Maekawa erred in relying on the previous refusal
because Officer Ng made errors in arriving at her decision. For example, he
argued that Officer Ng had no basis to conclude his program was only one year
long (instead of two) and that he had only completed one course rather than a
full year of the program, as outlined in Ms. Power’s letter.
[14]
Finally,
Mr. Zhang argues that he did not tell Officer Ng he decided to study
construction so he could stay and work in Canada. Rather, he
would have told her that he planned to look at both the Chinese and Canadian
markets after graduating. He claims that he was entitled to state he may apply
to work in Canada after his graduation, because he has every right to take
advantage of the respondent’s Post-Graduation Work Program, just as it is
acceptable for temporary resident visa applicants to state that they plan to
apply for permanent residence in Canada. The appropriate test
in that respect, he submits, is whether he would remain illegally, and there
was no evidence before Officer Ng to support such a conclusion.
RESPONDENT’S SUBMISSIONS
[15]
The
Minister has responded to each of Mr. Zhang’s allegations, and also raised a
few additional issues. Overall, the Minister argues that Officer Maekawa was
entitled to rely on Officer Ng’s decision to conclude Mr. Zhang would not leave
Canada at the end of his stay, because he had said so when interviewed for his
extension application. Since that decision was not challenged, and since Mr.
Zhang was relying on the same program to seek the same status, Officer Maekawa
was entitled to rely on his colleague’s finding in the extension application.
[16]
With
respect to the sufficiency of the reasons, the Minister argues this kind of
decision is entitled to a minimal degree of procedural fairness. Not only was
Mr. Zhang seeking only temporary resident status, but he had the means to
understand the restoration decision, because it referred to the statutory
requirements in the IRPA and its Regulations, and concluded Mr. Zhang had not
met them. Furthermore, he was seeking the same status that he had just been
refused. If he was unsure of the basis for that decision, he could have
requested an explanation from CIC. Finally, Mr. Zhang must have been aware that
he had lost his temporary resident status because he had not established that
he would leave Canada at the end of his authorized period, since he received
all of the FOSS notes relating to his restoration application within a couple
of weeks of receiving the refusal letter from Officer Maekawa.
[17]
The
Minister also claims that Mr. Zhang has mistakenly attributed comments in the
FOSS notes to Officer Maekawa. The only FOSS notes that would have been written
by Officer Maekawa were written February 25, 2006, and state: “Restoration
application refused because he does not meet requirements under R182.”
[18]
The
Minister goes on to argue that a tribunal is presumed to have considered all of
the evidence before it, and that there was nothing wrong with Officer Maekawa consulting
Officer Ng’s earlier decision and notes.
[19]
Finally,
the Minister argues that an applicant cannot ignore an order where there is a
procedure for its review, and then later seek to challenge it indirectly in
different proceedings. In addition, it is submitted that Mr. Zhang has sought
to introduce new evidence about what he said during his interview with Officer
Ng that was not before Office Maekawa when he made his decision, and this new evidence
should therefore be disregarded.
ISSUES
[20]
There
are essentially two issues to be resolved in this application for judicial
review:
1. Did Officer Maekawa fail to
observe any rule of procedural fairness owed to Mr. Zhang?
2. Did Officer Maekawa commit
factual errors or fail to consider the information before him in denying the
restoration application?
ANALYSIS
[21]
This
Court has consistently held that immigration officers’ decisions are subject to
the reasonableness standard on judicial review: see, for example, Castro v.
Canada (Minister of
Citizenship and Immigration), 2005 FC 659, and Patel v. Canada (Minister of
Citizenship and Immigration), 2006 FC 224. This is indeed consistent
with the approach taken by the Supreme Court of Canada in Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817 [Baker]. To
the extent that alleged errors are of a factual nature, this is therefore the
standard against which they must be assessed.
[22]
However,
this case does not solely involve substantive review questions. Mr. Zhang, in
fact, argues Officer Maekawa breached his procedural fairness obligations. In Sketchley
v. Canada (Attorney
General),
2005 FCA 404, the Federal Court of Appeal reaffirmed that procedural fairness
is not subject to any deference by this Court. The Court cited C.U.P.E. v.
Ontario (Minister of
Labour),
2003 SCC 29, [2003] 1 S.C.R. 539, and concluded:
[53] CUPE directs a
court, when reviewing a decision challenged on the grounds of procedural
fairness, to isolate any act or omission relevant to procedural fairness (at
para. 100). This procedural fairness element is reviewed as a question of law. No
deference is due. The decision-maker has either complied with the content of
the duty of fairness appropriate for the particular circumstances, or has
breached this duty.
[23]
Section
182 of the Regulations provides that a foreign national who has lost his or her
temporary resident status as a result of failing to comply with certain
conditions may apply to restore that status. On an application by a foreign
national to restore his or her temporary resident status, an officer shall
restore that status if it is established that the foreign national meets the
initial requirements for their stay. Pursuant to section 179 of the Regulations,
the initial requirements for a foreign national’s stay in Canada as a temporary
resident include establishing that the foreign national will leave Canada at the end
of the period authorized for his or her stay. These provisions of the Regulations
can be found in Schedule “A” to these Reasons.
[24]
I
must say from the outset that I agree with many of the submissions made by
counsel for the Minister. First of all, it is fair to say that a tribunal or a
decision-maker is presumed to have considered all of the evidence submitted
without having to refer specifically to each and every piece of documentary
evidence filed by the parties.
[25]
I
also agree that the FOSS notes of January 23, 2006 were made by another
immigration officer in another CIC office. These are the notes to which Mr.
Zhang has referred to support his allegations that Officer Maekawa made an
erroneous finding of fact with respect to his course of studies.
[26]
I
would also reject Mr. Zhang’s submissions regarding the principle that “he who
hears must decide.” As I said in Kniazeva v. Canada (Minister of
Citizenship and Immigration), 2006 FC 268, the case law is clear that
this principle does not apply to administrative decisions, especially visa
officers’ decisions. The same is true for immigration officers. Having said
this, it is far from clear what weight Officer Maekawa gave to his fellow
officer’s notes, or to Officer Ng’s decision in Mr. Zhang’s extension
application.
[27]
Finally,
I do not think there is any dispute with the principle that Mr. Zhang could not
challenge Officer Ng’s decision as part of the present application for judicial
review of Officer Maekawa’s decision. As the Federal Court of Appeal has held
in Canada v. Grenier, 2005 FCA 348, an applicant cannot ignore an order
where there is a procedure for its review, and then later seek to challenge it
indirectly in different proceedings. To that extent, Mr. Zhang should not be
able to rely on evidence of what he may have said during his interview with
Officer Ng that was not before Officer Maekawa.
[28]
That
being said, I am not convinced that this case can be assimilated to the facts
that gave rise to the Grenier decision. In the latter case, the
appellant had initiated an action for damages when judicial review was
available. The Court was justifiably concerned with the possibility that
claimants might try to circumvent the deference that occurs during judicial
review by attacking administrative decisions in an action for damages.
[29]
Here,
however, Mr. Zhang is not trying to avoid judicial review. Rather, it appears he
was merely following the procedure set out in section 182 of the Regulations. Having
lost his temporary status when his extension application was denied, he decided
to apply for a restoration of his status instead of challenging the decision in
his extension application in court. It was perfectly legitimate to follow this
administrative route instead of the judicial one to correct the mistakes
allegedly made by Officer Ng.
[30]
While
Officer Ng’s decision is not the subject of this application, it nevertheless
ought to be considered to the extent that Officer Maekawa relied on it in
refusing the restoration application. The Minister cannot have it both ways. If
Officer Maekawa was entitled to rely on Officer Ng’s decision because the two
applications are essentially based on the same facts, as counsel for the
Minister argued, then surely Mr. Zhang should be allowed to dispute the
findings made by Officer Ng on the basis of the new documentary evidence
submitted to Officer Maekawa.
[31]
However,
the question of whether Officer Ng’s decision was reasonable given the
information she had at the time is not the issue here. Officer Maekawa was
presented with evidence countering a number of Officer Ng’s findings, in
particular her conclusion that Mr. Zhang would not leave the country at the end
of his authorized period. While he could take the extension decision into
consideration, he also had to assess Mr. Zhang’s new evidence in support of his
claim that Officer Ng’s decision was mistaken or did not reflect his true
intentions.
[32]
This
brings me to the real defect of Officer Maekawa’s decision: the insufficiency
of his reasons. It is true that there is nothing in the IRPA requiring an
immigration officer to provide reasons to an applicant. But it is well
established that the duty of procedural fairness sometimes requires that
explanations be given for a particular decision. As the Supreme Court found in Cardinal
v. Director of Kent Institution, [1985] 2 S.C.R. 643, an
administrative decision that affects the rights, privileges or interests of an
individual is sufficient to trigger the application of the duty of fairness. As
to the particular procedures entailed by this duty of fairness in a given set
of circumstances, one must turn to the criteria elaborated by Justice Claire
L’Heureux-Dubé in Baker, above. These criteria include the nature of the
decision being made and the process followed in making it, the nature of the
statutory scheme and the terms of the statute pursuant to which the
decision-making body operates, the importance of the decision to the individual
in question, the legitimate expectations of the person challenging the decision,
and the choice of procedures made by the decision-making body.
[33]
In
the case at bar, the decision was certainly more administrative than judicial,
which normally points to a lower level of procedural fairness. Indeed, the
Minister has cited Canada (Minister of
Citizenship and Immigration) v. Cha, 2006 FCA 126 [Cha]
for the principle that temporary residents – particularly students – are
generally entitled to a minimal degree of procedural fairness. I hasten to say,
however, that the officer in this case was not called to ascertain purely
objective facts, as was the case in Cha. In that case, an immigration
officer had to determine whether the applicant had been convicted of an offence
listed in section 36 of the IRPA. This is a straightforward and fact-driven
inquiry, of a purely objective nature. It is somewhat different from assessing
whether a foreign national applying to have his temporary resident status
restored will leave the country by the end of his authorized period.
[34]
With
respect to the statutory scheme, the IRPA provides for judicial review of a
rejected restoration application. There is neither a privative clause nor a
statutory right of appeal. However, judicial review is available with leave
from this Court.
[35]
Turning
to the third factor, this decision is unquestionably important to Mr. Zhang. As
a result of the negative restoration decision, Mr. Zhang was found to be
inadmissible to Canada in May 2006 and is currently the subject of an
exclusion order. While Mr. Zhang has no right to remain in Canada, the
decision that he is challenging in this Court no doubt will have profound
implications for him. As Justice L’Heureux-Dubé wrote in Baker, above,
at paragraph 25: “The more important the decision is to the lives of those
affected and the greater its impact on that person or those persons, the more
stringent the procedural protections that will be mandated.”
[36]
As
to the fourth criterion, I do not think Mr. Zhang can claim any legitimate
expectation in terms of process based on the promises or regular practices of
immigration officers. Finally, I am of the view that the IRPA accords the
Minister considerable flexibility to decide on the proper procedure, and
immigration officers, as a matter of practice, do not conduct interviews in all
cases.
[37]
The
review of these factors leads me to the conclusion that a relatively low degree
of procedural fairness is warranted in an immigration officer’s decision to
grant or deny an application to restore temporary resident status. As the
Federal Court of Appeal stated in Cha, above, at paragraph 23:
Immigration is a privilege,
not a right. Non-citizens do not have an unqualified right to enter or remain
in the country. Parliament has the right to enact legislation prescribing the
conditions under which non-citizens will be permitted to enter and remain in Canada. As a result, the Act and the
Regulations treat citizens differently than permanent residents, who in turn
are treated differently than Convention refugees, who are in turn treated
differently than other foreign nationals. (Chieu v. Canada (M.C.I.),
[2002] 1 S.C.R. 84, at paragraph 57; Chiarelli v. Canada (M.E.I.),
[1992] 1 R.C.S. 711 at pages 733, 734; Medovarski v. Canada (Minister of
Citizenship and Immigration), [2005] 2 S.C.R. 539 at paragraph 46). It is
fair to say that compared to other types of non-citizens, foreign nationals who
are temporary residents receive little substantive and procedural protection
throughout the Act.
[38]
That
being said, this Court has also held repeatedly that a low level of procedural
fairness still imposes some obligations on visa officers to provide reasons for
negative decisions. For example, Justice Carolyn Layden-Stevenson wrote the
following in Babalola v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 1062 at paragraph 5:
I am mindful that the duty of
fairness owed by visa officers to applicants for student authorizations is
minimal. Here, the reasons contained in the visa officer’s notes are less than
skeletal and do not accord with the reasons provided in the refusal letter. The
minimal duty of fairness was not respected.
[39]
We
find similar pronouncements in Santos v. Canada
(Minister of Citizenship and Immigration), 2002 FCT 494; Xu v.
Canada (Minister of
Citizenship and Immigration), [1999] F.C.J. No. 1184 (F.C.T.D.) (QL); Saha
v. Canada (Minister of Citizenship and Immigration), 2003 FC
1325; and Novak v. Canada (Minister of
Citizenship and Immigration), 2004 FC 243.
[40]
The
rationale for this obligation to write reasons is manifold. As canvassed in Baker,
above, these reasons include allowing the parties to see that their
arguments have been carefully considered, enabling the reviewing court to
determine the reasonableness of the decision, fostering better decisions from
officials and administrative tribunals, and assuring the litigants that they
were treated fairly and appropriately. Of course, one also has to be mindful of
the excessive burden that would be added on administrative decision-makers if
extensive reasons were required. But it is certainly not too much to ask for a
minimal explanation of the decision reached.
[41]
In
the present case, the mere recital of the relevant sections of the IRPA and the
Regulations is clearly not sufficient. If overseas visa claimants like the one
in Babalola, above, have been entitled to minimal reasons explaining why
their applications were rejected, surely the same principle ought to apply to
applications within Canada for restoring temporary status. After all, Mr.
Zhang had more to lose than an overseas applicant, having already completed
part of the program in which he had registered.
[42]
The
Minister claims that Mr. Zhang had the means to understand why his restoration
application was refused, and thus Officer Maekawa satisfied any obligations of
procedural fairness by referring to the statutory provisions relevant to the
decision. Counsel for the Minister relied on Gardner v. Canada
(Attorney General), 2005 FCA 284 for that
proposition.
[43]
In
that case, Ms. Gardner complained to the Canadian Human Rights Commission about
the Treasury Board and the Department of Foreign Affairs and International
Trade. The Commission investigated her complaint, then decided to dismiss it.
Ms. Gardner applied for judicial review of the Commission’s decision to reject
her complaint. In finding that she had the means of understanding the basis of
the Commission’s decision, the Federal Court of Appeal traced her
correspondence with both the Commission and the Treasury Board. Ms. Gardner was
kept informed of the Treasury Board’s response to both her complaint and the
Commission’s investigation of her complaint. Furthermore, she had been given
the opportunity to respond in each instance. It is quite a stretch to suggest
that the facts in this case are sufficiently similar that the Court should
conclude Mr. Zhang had the means to understand the basis of Officer Maekawa’s
decision.
[44]
While
it may have been perfectly acceptable for Officer Maekawa to refuse the
restoration application, that could not excuse him from providing Mr. Zhang
with some sort of an explanation. I simply do not agree that Mr. Zhang had the
“means” to understand the basis for the decision, simply by being informed of
the applicable statutory provisions. Contrary to Ms. Gardner, Mr. Zhang
was not “intimately involved” in the decision-making process. Even more
importantly, he submitted further evidence that he was a bona fide
student, including a letter from Ms. Power, providing details of his program of
study at that institution, his successful completion of that program, and his
acceptance to Northwest Community
College. On that basis, he was certainly entitled to some explanation as to why
these documents were inadequate to show that he was a bona fide
student.
[45]
As
for Officer Ng’s conclusion that Mr. Zhang would not leave Canada at the end
of his stay, this was explicitly addressed in Ms. Power’s letter when she
wrote: “After graduating from Northwest Community College [Mr.
Zhang] will be eligible for a one-year work permit, as allowed for graduates of
public Colleges and Universities.” This clearly reflects Mr. Zhang’s attempt
to respond to Officer’s Ng’s conclusion. Indeed, it was perfectly legitimate
for Mr. Zhang to take advantage of this Post-Graduation Work Program, just as
it would be acceptable for temporary resident visa applicants to state that
they plan to apply for permanent residence in Canada. This does
not mean Mr. Zhang will not leave Canada if he is not authorized
to remain here at the end of that program. Since Officer Maekawa did not even
call Mr. Zhang for an interview so he could clarify his intentions, the least
the officer could do was provide him with the reasons why he was not convinced
by Mr. Zhang’s stated purpose.
[46]
For
all of the above reasons, I am of the view that this application for judicial
review should succeed. In the end, counsel for the Minister tried to argue that
the case was moot, since Mr. Zhang could not obtain the restoration of his
temporary resident status as he has been declared inadmissible to Canada. If
that was to be the case, the Minister would in effect be able to insulate the immigration
officer’s decision. I believe, on the contrary, that this decision may provide Mr.
Zhang with ammunition to challenge the exclusion order after having applied for
an extension of time.
[47]
This
application for judicial review is therefore granted. No questions for
certification have been proposed by the parties, and none will be certified.
JUDGMENT
THIS COURT
ORDERS THAT: This application for judicial review be granted. No
questions for certification have been proposed by the parties, and none will be
certified.
"Yves
de Montigny"
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