Date: 20001215
Docket: IMM-3804-99
BETWEEN:
KWONG KWOK KIN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
NADON J.
[1] This is an application under subsection 82.1(2) of the Immigration Act, R.S.C. 1985, c. I-2 ("the Act") for judicial review of the decision of visa officer James Schultz ("Officer Schultz"), dated July 20, 1999, refusing the applicant's application for permanent residence in Canada.
FACTS
[2] The applicant, a citizen of Hong Kong, submitted his application for permanent residence in the Immigrant Investor Category to the Canadian Consulate General in Seattle, Washington, U.S.A. on April 8, 1994. On January 26, 1995, he attended an interview at the Canadian Consulate General in Seattle, at which time it was determined that he met the eligibility selection requirements prescribed in the Immigration Regulations, 1978 for Investor Category candidates. Following the interview, routine checks were initiated with the Commission for Canada in Hong Kong, the applicant's normal place of residence.
[3] By letter dated December 17, 1996, the applicant was advised that he should attend an interview at the Commission for Canada in Hong Kong on January 31, 1997, in order to determine if he complied with Canadian immigration requirements. Following the interview, the applicant was asked to submit detailed financial information, which was received on April 17, 1997. By letter dated June 19, 1997, the applicant was advised that the financial information received was incomplete, and a further request for documents was made. The requested documents were received on August 5, 1997.
[4] On March 6, 1998, Officer Schultz advised the Canadian Consulate General in Seattle that the review of the applicant's financial documents had been completed in Hong Kong, but that reservations remained about the nature of the applicant's business activities and the source of his funds. In April 1998, the applicant's file was sent to the Canadian Commission in Hong Kong, because of a request by the applicant's representative that the file be transferred there from Seattle. The file was received by the Canadian Commission in Hong Kong on April 27, 1998.
[5] By letter dated August 6, 1998, Officer Schultz requested that the applicant attend an interview with him on September 10, 1998. The letter also advised the applicant that there were reasons to believe that the applicant was a person described in paragraph 19(1)(c.2) of the Act, and that the purpose of the interview would be to evaluate if the applicant was in fact inadmissible to Canada under these provisions and to ascertain if the applicant had maintained any links with triads or other organised crime elements. Paragraph 19(1)(c.2) reads 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.
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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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The September 10, 1998 interview was postponed to November 5, 1998, at the request of the applicant's legal advisors. The applicant was interviewed by Officer Schultz on November 5, 1998.
[6] By letter dated July 20, 1999, the applicant was informed by Officer Schultz that he was inadmissible to Canada on criminal grounds, specifically by virtue of paragraphs 19(2)(a.1)(ii) and 19(1)(c.2) of the Act. Paragraph 19(2)(a.1)(ii) states the following:
| 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
(ii) have committed outside Canada an act or omission that constitutes an offence under the laws of the place where the act or omission occurred and 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.
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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 :
(ii) soit commis un fait -- acte ou omission -- qui constitue une infraction dans le pays où il a été commis et qui, s'il était commis 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 la commission du fait;
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[7] On August 3, 1999, the applicant filed a notice of application for judicial review of Officer Schultz's decision. On October 19, 1999, the Respondent filed a notice of motion, pursuant to subsection 82.1(10) of the Act, for an order that confidential information not be disclosed to the applicant on the grounds that the disclosure would be injurious to Canada's national security and to the safety of persons. 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.
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82.1 (10) (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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On February 14, 2000, Heneghan J. granted the Respondent's motion and ordered that two confidential affidavits filed by the Respondent be sealed.
[8] According to his refusal letter to the applicant, Officer Schultz determined that the applicant was inadmissible to Canada pursuant to paragraph 19(2)(a.1)(ii) of the Act because there were reasonable grounds to believe that he had been continuously engaged in activities outside Canada which would constitute an offence equivalent to s. 210(1) of the Criminal Code of Canada, "Keeping a Bawdy House". With respect to his evaluation of the evidence, Officer Schultz stated the following:
| In weighing the evidence available to me I have noted that you have denied that the establishments which you keep, known locally as "villas", are used for prostitution. As discussed with you at your interview of November 8, 1998, I have not found these denials credible or persuasive. You advised me at your interview of November 8, 1998 that you modeled your establishments on establishments which you raided while a serving member of the police, and that you got the ideas for your establishments from that experience. You have been counseled [sic], and on the basis of your own law enforcement and other experience you have agreed, that these kinds of establishments are commonly known as "vice establishments" in the local context. As discussed with you at your interview of November 8, 1998 information available to me clearly identifies at least one of these establishments as being a common destination for prostitutes and their clients. I have reviewed the operations of your establishments with you in some detail at your interview, and determined that the operation of these establishments is clearly indicative of the kind of short term occupancy which indicates that they are being used for prostitution. |
[9] Officer Schultz added that the lack of a previous conviction of an equivalent offence in Hong Kong required him to review the evidence against the applicant with particular care, but that he determined that in view of other evidence available to him, the fact that the applicant had not been charged or prosecuted yet for an offence of that nature in Hong Kong could not be accepted as a reliable indication that the applicant was not in fact engaged in criminal activity of that nature. Officer Schultz also determined that the applicant was not eligible for rehabilitation considerations under paragraph 19(2)(a.1)(ii) of the Act since he remained continuously engaged in keeping the "common bawdy houses".
[10] With respect to paragraph 19(1)(c.2) of the Act, Officer Schultz determined that the applicant was inadmissible because there were reasonable grounds to believe that he was for all practical purposes a member of an organized crime group. He stated the following:
| In making a determination of inadmissibility I have noted that you deny any form of criminal association since leaving the police force. I have not found your denials of more recent association with members of criminal organizations credible, however, particularly in view of the nature of your vice related activities, and the established control and/or influence exerted by criminal organizations on these kinds of activities in the local context. Although your evasiveness at interview has made it difficult to fully examine the nature and extent of your criminal associations, I have noted that the nature of your business in the local context, and in several of your particular geographic areas of operation, would inevitably bring you into close association, collaboration, and cooperation with members of organized crime. In addition, you were advised at that interview that I had access to information provided in confidence by a reliable, credible and objective source about your association with a member of a criminal organization, which you failed to disclose, and to which you did not admit at interview. |
| In assessing your inadmissibility under paragraph 19(1)(c.2) of the Immigration Act I have also noted that the network of "common bawdy houses" which you keep in effect entails a high degree of organization and planning, and a pattern of criminal activity which by its nature requires a number of persons acting in concert. I have concluded that this constitutes a separate, although related, basis for determining that you are for all practical purposes a member of a criminal organization. |
ISSUES
[11] The applicant raises two issues in his application for judicial review:
| 1. Did the visa officer fail to fulfill the requirements of procedural fairness in his assessment of the applicant's admissibility? |
| 2. Did the visa officer fail to satisfy the standard of proof required for "reasonable grounds to believe" pursuant to s. 19(1)(c.2) or s. 19(2)(a.1)(ii) of the Act, thereby committing an error in law in refusing the applicant's application for permanent residence? |
ANALYSIS
[12] The applicant contends that Officer Schultz breached the duty of procedural fairness by withholding information which he could disclose, namely, the names of the triad organizations and of the triad members the applicant is alleged to have associated with, thereby denying him a reasonable opportunity to respond to Officer Schultz's specific concerns. According to the applicant, although Officer Schultz may not be able to reveal the source of the information, it is clear from the facts in Chiau v. Canada (M.C.I.), [1998] 2 F.C. 642 (T.D.) and in Chan v. Canada (M.E.I.) (1996), 34 Imm. L.R. (2d) 259 (F.C.T.D.) that he must reveal who and what the alleged associations are in order for the applicant to know the case he has to meet.
[13] The applicant further alleges that the interview notice did not inform him of Officer Schultz's concerns with respect to his potential inadmissibility pursuant to the section 19(2)(a.1)(ii) allegations. Therefore, the applicant contends that he was denied his right to know the case he had to meet. In addition, the applicant claims that by refusing to visit the hotel premises at his offer, Officer Schultz denied him an opportunity to respond to the visa officer's concerns.
[14] In addition, the applicant submits that although a visa officer is entitled to assess the credibility of an applicant, this assessment must be made on some reasonable basis. The applicant alleges that he did not provide inconsistent evidence or evasive answers to Officer Schultz and that he provided a reasonable and credible explanation in response to Officer Schultz's concerns. The applicant claims that Officer Schultz's assessment that he was not credible at the interview is completely unfounded.
[15] In Chiau, supra, the applicant's application for permanent residence had been denied on the basis that he was inadmissible to Canada pursuant to paragraph 19(1)(c.2) of the Act. Mr. Chiau claimed that the visa officer had breached the duty of procedural fairness since he had not provided him with a summary of the confidential information in his possession. With respect to procedural fairness and the disclosure of information, Dubé J. stated the following at paragraphs 15 to 18:
| In my view, the visa officer fulfilled all the requirements of procedural fairness in the circumstances. Mr. Chiau was duly informed in advance, by letter before the interview, of the case he had to meet. The information provided by visa officer Delisle was sufficient to enable him to prepare himself for the interview and disabuse visa officer Delisle of his concerns that he may be a member of an organization engaged in criminal activity. The letter refers specifically to paragraph 19(1)(c.2) and to Mr. Chiau's "links with triads". |
| In the course of the interview questions were put to Mr. Chiau with reference to his relationship with Wong Cheung Ying and Heung Wah Shing Jimmy, the gunshot incident and the press report on it. Mr. Chiau was given full opportunity to respond and to forward additional material to the visa officer after the hearing, if he was so inclined. His own specific triad membership in Sun Yee On triad and the control the triad exercised over the whole entertainment industry in Hong Kong were discussed. The visa officer was entitled to assess the credibility of the answers and explanations provided by Mr. Chiau. |
| Moreover, there was no obligation upon the visa officer to provide Mr. Chiau with a summary of the confidential information relied upon by the visa officer. That issue was addressed by my colleague Cullen J. in Chan v. Canada (Minister of Citizenship and Immigration). Procedural fairness must be viewed in the context of the principles and practices emanating from immigration law. It is a fundamental principle that aliens, such as the applicant, have no right to admission to Canada. |
| This rather recent paragraph 19(1)(c.2) was enacted by Parliament to better control the entry into Canada of members of criminal organizations. Through the confidential hearing provisions of subsection 82.1(10), the legislators sought to strike a reasonable balance between the competing interests of the individual and the protection of the state. The same confidential information which was before the visa officer was carefully examined by me in camera and I found the information to be relevant, weighty, trustworthy and of such a nature that it ought not to be revealed to the person concerned. It became obvious to me that if such confidential information were to be revealed, even without disclosing the name of foreign government or of the institution of a foreign state, the source of information would immediately dry up. In that type of balancing act, I have concluded that national security ought to supersede whatever interest an alien may have in becoming a resident of Canada. To be sure, from the applicant's point of view, it is not perfect justice, but he was treated with all the procedural fairness to which he was entitled under the law. [footnotes omitted] |
[16] As in Chiau, supra, the visa officer in the case at bar relied on confidential information he had obtained which he refused to disclose to the applicant at his interview. In my view, it is clear from Dubé J.'s comments that Officer Schultz was under no obligation to disclose to the applicant the confidential information which he relied upon to make his decision. It is true that in Chiau, supra, Mr. Chiau was informed of the names of the triad organizations and triad members he was alleged to have associated with; however, I disagree with the applicant's suggestion that this indicates that the names of the organizations and members should be disclosed in every case. In my opinion, the information that will or will not be disclosed will vary with the facts of each case, the evidence available to the visa officer and the source of the information supplied to the visa officer. It is the principle stated by Dubé J. in Chiau, supra, that must be followed, that is, whether the interest of national security supersedes the interests of the applicant.
[17] In the case at bar, in the context of the Respondent's motion pursuant to s. 82.1(10) of the Act, Heneghan J. has already examined the confidential information in camera and found that it should not be revealed to the applicant. Consequently, in my view, since the Court has already decided that the disclosure of the confidential information would be injurious to national security or to the safety of persons, it is not open to the applicant to argue before this Court that Officer Schultz had to reveal who and what the alleged associations were in order for the applicant to know the case he had to meet.
[18] With respect to the fact that the letter inviting the applicant to an interview with Officer Schultz did not refer to section 19(2)(a.1)(ii) allegations, the Respondent contends that the spirit of the Federal Court of Appeal's decision in Muliadi v. Canada (M.E.I.), [1986] 2 F.C. 205 (C.A.) was complied with given that the applicant was well aware of the visa officer's "immediate impression" and given ample opportunity, through submissions and an in-depth interview of almost three hours, to "disabuse" the officer of any of his concerns. In Muliadi, supra, the Federal Court of Appeal discussed the issues of procedural fairness and the opportunity to respond. Stone J.A., on behalf of 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. [...] |
[19] It is beyond dispute that a visa officer must inform an applicant of his immediate impression so that the applicant can disabuse him. However, I was unable to find any jurisprudence to the effect that notice of the visa officer's "immediate impression" must be communicated to the applicant in writing prior to the interview. In my view, the duty of procedural fairness cannot be extended as far as to require a specific written notice of the visa officer's impression, especially one which includes the specific section of the Act under consideration by the visa officer.
[20] In the case at bar, according to the evidence submitted, the applicant was informed on more than one occasion during a three-hour interview of Officer Schultz's impression of the hotels owned by the applicant and of the activities being conducted in those hotels. The applicant was therefore aware of the case he had to meet, and had many opportunities to disabuse Officer Schultz and to respond to his concerns with respect to the hotels. In addition, the notice of interview sent to the applicant did not indicate that the interview would be restricted to section 19(1)(c.2), and also stated that "[t]he aim of the interview will be to ascertain if you have maintained any links with triads or other organised criminal elements, and to review any other issues relating to your admissibility to Canada" (emphasis mine). With regard to a possible visit of the applicant's hotels by Officer Schultz, I agree with the Respondent that the onus is on the applicant to persuade the visa officer of his admissibility to Canada, and that Officer Schultz was not required to leave his place of employment to visit the applicant's hotels. The applicant had the opportunity to disabuse the visa officer orally during the interview; in my view, Officer Schultz was not obligated to visit the hotels to comply with the duty of procedural fairness.
[21] Consequently, given that the applicant was informed prior to the interview that other issues could be discussed, that the visa officer clearly indicated to the applicant his concerns regarding his hotels in the course of the interview, and that the applicant had ample opportunity to disabuse the visa officer during the interview, I am of the view that the visa officer did not breach the duty of procedural fairness. As to the applicant's argument that Officer Schultz's assessment that he was not credible at the interview is completely unfounded, this Court has, on numerous occasions, held that a visa officer is entitled to assess the credibility of an applicant during the interview. I am of the view that on the record before him, it was open to Officer Schultz to assess, as he did, the applicant's credibility or evasiveness. In the circumstances, I have not been persuaded that there is any basis to intervene with regard to the visa officer's conclusion regarding credibility.
[22] The applicant submits that Officer Schultz failed to satisfy the standard of proof required for "reasonable grounds to believe" pursuant to sections 19(1)(c.2) and 19(2)(a.1)(ii) of the Act. The applicant contends that Officer Schultz's conclusion that the applicant is involved in criminal activities or a criminal organization is based on a flimsy suspicion. The applicant further submits that since an investigation of his activities by the Hong Kong authorities did not result in a conviction or even charges, and since he does not have a criminal record, there are no reasonable grounds upon which to believe that the applicant is inadmissible pursuant to sections 19(1)(c.2) and 19(2)(a.1)(ii) of the Act.
[23] The applicant also contends that even if Officer Schultz had reasonable grounds to believe that the hotel premises owned by the applicant were used for the purpose of prostitution, Officer Schultz did not reasonably satisfy himself of whether the applicant was a "keeper" versus a "landlord/owner" pursuant to the subsection 197(1) of the Criminal Code of Canada. The applicant submits that on the evidence before him, Officer Schultz did not have reasonable grounds to believe that the applicant is a "keeper" of a common bawdy-house. According to the applicant, the evidence merely suggests that the applicant was an "owner", in which case this finding is not sufficient to find the applicant inadmissible pursuant to section 19(2)(a.1)(ii) of the Act since the offence of being a landlord or owner is punishable on summary conviction according to subsection 210(2) of the Criminal Code. The applicant finally submits that Officer Schultz erred in his interpretation of the term "keeper", thereby committing an error in law.
[24] In Chan, supra, the applicant had been deemed inadmissible to Canada pursuant to s. 19(1)(c.2) of the Act. Among other arguments, she 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. |
[25] In Chiau, supra, Dubé J. mentioned the following with respect to reasonable grounds, at paragraph 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] |
[26] Regarding the deference which must be accorded to visa officers in cases similar to the case at bar, Dubé J. added, at paragraph 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] |
[27] In view of the evidence before him, it is my opinion that Officer Schultz 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, for the Court, 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) and 19(2)(a.1)(ii). 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.
[28] With respect to the applicant's argument regarding the interpretation of "keeper" of a common bawdy-house, I agree with the Respondent's submission that this argument is without merit since the visa officer is only required to have "reasonable grounds to believe" rather than evidence "beyond a reasonable doubt". The relevant provisions of the Criminal Code are the following:
| 197. (1) Definitions -- In this Part
"keeper" includes a person who
(a) is an owner or occupier of a place,
(b) assists or acts on behalf of an owner or occupier of a place,
(c) appears to be, or to assist or act on behalf of an owner or occupier of a place,
(d) has the care or management of a place, or
(e) uses a place permanently or temporarily, with or without the consent of the owner or occupier.
210. (1) use -- Every one who keeps a common bawdy-house is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.
(2) Every one who
(a) is an inmate of a common bawdy-house,
(b) is found, without lawful excuse, in a common bawdy-house, or
(c) as owner, landlord, lessor, tenant, occupier, agent or otherwise having charge or control of any place, knowingly permits the place or any part thereof to be used for the purposes of a common bawdy-house,
is guilty of an offence punishable on summary conviction.
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197. (1) Les définitions qui suivent s'appliquent à la présente partie.
« tenancier » S'entend notamment d'une personne qui, selon le cas :
a) est un propriétaire ou occupant d'un local;
b) aide un propriétaire ou occupant d'un local ou agit pour son compte;
c) paraît être propriétaire ou occupant d'un local ou paraît lui aider ou agir pour son compte;
d) a le soin ou l'administration d'un local;
e) emploie un local, de façon permanente ou temporaire, avec ou sans le consentement du propriétaire ou de l'occupant.
210. (1) Est coupable d'un acte criminel et passible d'un emprisonnement maximal de deux ans quiconque tient une maison de débauche.
(2) Est coupable d'une infraction punissable sur déclaration de culpabilité par procédure sommaire quiconque, selon le cas :
a) habite une maison de débauche;
b) est trouvé, sans excuse légitime, dans une maison de débauche;
c) en qualité de propriétaire, locateur, occupant, locataire, agent ou ayant autrement la charge ou le contrôle d'un local, permet sciemment que ce local ou une partie du local soit loué ou employé aux fins de maison de débauche.
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[29] It is not the duty of the visa officer to conduct a criminal investigation into the applicant's activities. As held in Chiau, supra, the proof necessary to establish "reasonable grounds" is less than the proof required to meet the civil test of balance of probabilities. Although it is possible that the applicant, at a criminal trial, could be convicted of the lesser offence of being an owner of a common bawdy-house rather than the offence of keeping a common bawdy-house, I am satisfied that there were reasonable grounds in this case for Officer Schultz to believe that the applicant committed an act which would constitute an offence comprised under section 19(2)(a.1)(ii) of the Act.
CONCLUSION
[30] As the applicant has not persuaded me that the visa officer committed a reviewable error, this application for judicial review will be dismissed.
[31] The applicant has asked that I certify the following questions:
| 1. What is the proper interpretation of the terms "reasonable grounds" within the context of paragraph 19(1)(c.2) of the Immigration Act? |
| 2. What is the standard of proof required to established that someone is a "member" within the context of paragraph 19(1)(c.2) of the Immigration Act? |
| 3. Is the applicant entitled as a matter of procedural fairness to a summary of the information determined by the Court not to be disclosed under subsection 82.1(10) of the Act, without the identity of the informer being revealed? |
| 4. Is counsel for the applicant entitled, as a matter of procedural fairness, to a summary of the information determined by the Court not to be disclosed under subsection 82.1(10) of the Act, without the identity of the informer being revealed, upon an undertaking by counsel not to reveal any information to the applicant? |
[32] These questions are, for all intents and purposes, identical to the questions certified by Dubé J. in Chiau, supra. On December 12, 2000, the Federal Court of Appeal released its decision in the Chiau matter (A-75-98) and answered the certified questions as follows:
| 1. Is a person entitled as a matter of procedural fairness to a summary of the information that, under subsection 82.1(10) of the Act, the Court has determined should not be disclosed to the person, even if that summary does not contain the identity of the informer? Answer: No. |
| 2. Is counsel representing the person entitled as a matter of procedural fairness to a summary of the information determined by the Court not to be disclosed to the person under subsection 82.1(10) of the Act, without the identity of the informer being revealed to counsel, upon counsel's undertaking not to reveal the summary to the person? Answer: No. |
| 3. What is the proper interpretation of the terms "reasonable grounds" and "members" within the context of paragraph 19(1)(c.2) of the Act? Answer: On the facts it is not necessary to answer this question; however, in light of the record as a whole, including the confidential material, the Judge made no reviewable error in his treatment of these issues. |
[33] In view of the answers given by the Federal Court of Appeal, the questions submitted by the applicant for certification will not be certified.
Marc Nadon
JUDGE
OTTAWA, Ontario
December 15, 2000.
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