Zhao v. Canada (Minister of Citizenship and Immigration), docket IMM-777-99

Date: 19990709

Docket: IMM-777-99

BETWEEN:

     LIXIN ZHAO

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

LEMIEUX J.:

INTRODUCTION

[1]      In this section 18.1 Federal Court Act judicial review proceeding, Lixin Zhao (the "applicant"), a citizen and resident of the People's Republic of China, seeks to quash an oral decision of visa officer Martin Levine ("visa officer") at the Canadian Consulate in Detroit, Michigan, who, on February 16, 1999, refused to process the applicant's application for an EX-1 Canadian visitor's visa ("CVV") for multiple entries for a two-year period (the "visa application").

[2]      The applicant also seeks from the Court an order in the nature of mandamus compelling the respondent to extend the applicant's Ex-1 multiple entry visitor's visa for no less than two years or, in the alternative, an order compelling the respondent to reassess the applicant in accordance with the reasons this Court may articulate and, if he is convened to another interview, to reimburse the applicant all reasonable expenses incurred in attending that interview. He, in addition, seeks full recovery of legal costs.

THE FACTS

[3]      The applicant is an immigration consultant. He works in Beijing, P.R.C. He is employed with the Canadian immigration consulting firm, Immigration North America Inc., which submits the majority of its immigration visa applications to the Canadian Consulate in Detroit, Michigan.

[4]      On June 10, 1997, the Canadian Consulate in Beijing issued the applicant an EX-1 visitor's visa for one entry into Canada. The expiry date of that visa was September 8, 1997. On December 2, 1997, the Canadian Embassy in Beijing refused to issue the applicant a CVV. This fact is disclosed in the applicant's visa application of February 16, 1999.

[5]      On June 25, 1997, the Canadian Consulate in Detroit issued the applicant an EX-1 multiple entry CVV valid for two years.

[6]      The applicant was in Canada during the period February 8, 1999 to February 18, 1999. He deposed in his affidavit in support of this judicial review proceeding that, on February 15, 1999, he went with the principal officer of his employer to the United States to observe the preparation for an immigrant-visa interview of a client whose intended occupation was the same as the client whom the applicant was to prepare the next month for an interview at the Canadian Embassy in Beijing.

[7]      On February 16, 1999, the applicant submitted his visa application and the $150 cost recovery fee to the Consulate in Detroit. The applicant wanted the Canadian Consulate to issue the CVV that day. After some discussion with the cashier, the cashier told the applicant to go to the interview room. He was interviewed by the visa officer.

[8]      The material part of the applicant's affidavit in terms of what transpired at the interview is as follows:

9.      Mr. Lavigne[sic] asked me why I wanted a visitor-visa, and I truthfully explained that it was in order to be able to attend seminars on Immigration changes -- the reason for my initial visit in 1997 -- and to meet with our clients.

10.      Mr. Lavigne[sic] also asked me how long I had worked with Mr. Leahy, and I truthfully told him since May 1995.

11.      Mr. Lavigne[sic] told me that I should apply in Beijing and asked me why I had not. I explained that, because Detroit handled most of Mr. Leahy's cases, it was in a better position to adjudicate my application than would be Beijing, which had issued my original EX-1 visitor-visa. Besides, Mr. Leahy was there if he had any questions of him.

12.      Mr. Leahy has told me, and I do verily believe, that, although I had accompanied Mr. Leahy to a meeting in the Embassy in Beijing, where he introduced me as his representative in Beijing, the Embassy had required, as a condition to issuing me my first EX-1 visitor-visa, that he provide copies of the following: (a) my employment contract, (b) his Chinese business licence (which he does not have), (c) all his contracts with P.R.C. nationals and (d) my T-4 slips (which Mr. Leahy explained was not applicable).

. . .

14.      Mr. Lavigne[sic] left the interviewing booth in the midst of the interview, explaining that he wished to look up what the hand-written annotation on my Beijing-issued EX-1 visitor visa meant. I was not, however, able to observe him during his absence.

15.      Mr. Lavigne[sic] said that he was refusing to renew my EX-1 visitor-visa because I had applied too early, telling me to re-apply one month before my subsisting visa expires.

16.      Mr. Lavigne[sic] wrote on my application form but did not give me anything.

[9]      The respondent did not file a responding affidavit. The respondent relied upon the Tribunal record.

THE VISA OFFICER'S DECISION

[10]      The visa officer's decision consists of his hand-written note on the applicant's visa application which was produced as part of the respondent's record. An examination of that visa application shows the visa officer checked the box "Refused".

[11]      This is what the visa officer wrote on the visa application:

Applying to Detroit rather than Beijing but not that hard here. Does not think Beijing will give him 2-year mult. Also, most of his clients go to Detroit.

I advised Mr. Zhao that, given that he already has a valid visa from this office, it is too early to consider an extension. I advised him he may apply again one or two months before expiry and that, for a 2-year visa, we would require extensive documentation or referral to Beijing.

[12]      The material part of a visa officer's CAIPS notes say this:

--Mr. Zhao already holds a valid CVV, multiple-entry, to 25/06/99. He is requesting a two-year CVV mult.

--Mr. Zhao lives in Beijing. He did not apply there because he was too busy and felt it was unlikely that Beijing would give him a two-year CVV.

--Employed by Immigration North America, Inc., .... Represents them in Beijing. Would like to attend periodic seminars offered by them.

--I advised Mr. Zhao that as he already had a valid CVV we would not approve another application at this time. I advised him that he may if he wished apply one to two months before the expiry of his current CVV. I also advised him that he would have to submit sufficient documentation to support a two-year CVV, if that is what he wished, and that referral to our office at Beijing would be required as we did not have sufficient experience to assess the documents here.

---

STATUTORY AND REGULATORY PROVISIONS

[13]      The Immigration Act (the "Act") and the Immigration Regulations (the "Regulations") provide the statutory scheme governing the determination of CVV applications.

     (a)      The Immigration Act

[14]      "Visitor" is defined in section 2 of the Act as follows:

"visitor" means a person who is lawfully in Canada, or seeks to come into Canada, for a temporary purpose, other than ...

"visiteur" Personne qui, à titre temporaire, se trouve légalement au Canada ou cherche à y entrer, à l'exclusion_...

[15]      Section 9 of the Act deals with visas and special authorization in the following terms:

(i)      subsection 9(1) requires generally that every visitor shall make an application for and obtain a visa before that person appears at a port of entry;

(ii)      subsection 9(1.2) requires that a person who makes an application for a visitor's visa shall satisfy a visa officer that the person is not an immigrant;

(iii)      subsection 9(2.1) provides that an application for a visitor's visa shall be assessed by a visa officer for the purpose of determining whether the person making the application and every accompanying dependant of that person appear to be persons who may be granted entry;

(iv)      section 9(3) stipulates every person shall answer truthfully all questions put to that person by a visa officer and shall produce such documentation as may be required by a visa officer for purposes of establishing that his admission would not be contrary to this Act or regulations;

(v)      section 9(4) deals with issuances of visas and reads as follows:

(4) Subject to subsection (5), where a visa officer is satisfied that it would not be contrary to this Act or the regulations to grant landing or entry, as the case may be, to a person who has made an application pursuant to subsection (1) and to the person's dependants, the visa officer may issue a visa to that person and to each of that person's accompanying dependants for the purpose of identifying the holder thereof as an immigrant or a visitor, as the case may be, who, in the opinion of the visa officer, meets the requirements of this Act and the regulations.

(4) Sous réserve du paragraphe (5), l'agent des visas qui est convaincu que l'établissement ou le séjour au Canada du demandeur et des personnes à sa charge ne contreviendrait pas à la présente loi ni à ses règlements peut délivrer à ce dernier et aux personnes à charge qui l'accompagnent un visa précisant leur qualité d'immigrant ou de visiteur et attestant qu'à son avis, ils satisfont aux exigences de la présente loi et de ses règlements.

     (b)      The Regulations

[16]      Section 13 of the Regulations deals with visitor's visas. Subsection 13(2) reads:

(2) A visa officer may issue a visitor's visa to any person who meets the requirements of the Act and these Regulations if that person establishes to the satisfaction of the visa officer that he will be able      (a) to return to the country from which he seeks to come to Canada; or      (b) to go from Canada to some other country.

(2) L'agent des visas peut délivrer un visa de visiteur à toute personne qui satisfait aux exigences de la Loi et du présent règlement, si cette personne prouve, d'une façon jugée satisfaisante par l'agent des visas, qu'elle pourra      a) retourner dans le pays d'où elle sollicite l'admission au Canada; ou      b) se rendre dans un autre pays.

THE APPLICANT'S CHALLENGE

[17]      The applicant invokes two reasons for quashing the visa officer's refusal to grant him the requested CVV. First, he argues the decision was based on an irrelevant consideration, namely, Mr. Zhao's application was premature because his existing CVV was valid until June 25, 1999 and because of this he should re-apply in one month's time. Applicant argues the scheme of the Act and the Regulations contemplate that a non-exempt visitor renewing a visa will do so before the expiry date of that visa. Applicant argues the visa officer's duty was to determine whether entry as a visitor would be contrary to the Act and Regulations. Failure to perform that duty for reason of the existence of a valid CVV is a failure to discharge the statutory duty. Second, applicant argues the visa officer based his refusal on another ground, that is, his inability to deal with the applicant's CVV renewal. Applicant says the respondent has a duty to place competent visa officers in its U.S. visa posts to handle non U.S. applicants. In this particular case, applicant argues referral to the home post (Beijing) might be reasonable where a visa had previously been rejected or the applicant had never been issued a visa. That is not the situation here where the Canadian Consulate in Detroit had previously issued the applicant a multi-entry CVV valid for two years.

[18]      Applicant seeks mandamus in aid of certiorari. In the alternative, he seeks a direction from this Court which would command the result (analogous to a directed verdict). In the alternative, applicant argues that if Beijing was to remain involved, I should direct how Beijing would remain involved, that is, how the CVV renewal application should proceed.

ANALYSIS

[19]      In considering this matter, what Jerome A.C.J. had to say in De La Cruz v. Minister of Employment and Immigration (1989), 26 F.T.R. 285, is on point. The case before Jerome A.C.J. was one of judicial review of the denial of visitors' visas. The description of the circumstances of refusal in the De La Cruz case is instructive. De La Cruz dealt with a situation where two citizens of the Phillipines were denied visitors' visas by the Canadian Embassy in Manila in order to permit their entry into Canada to facilitate their obtaining a U.S. visa which would permit them to go to San Francisco to attend an interview at the Canadian Consulate General in the context of the applicants' application for permanent residence in Canada. The applicants had elected to apply for Canadian permanent residence at the Canadian Consulate General in San Francisco because of delays in the processing of permanent residence applications at the Canadian Embassy in Manila. The circuitous routing to Canada was compelled by the fact that U.S. authorities in Manila had refused the applicants a tourist visa to come to San Francisco. In addition, the applicants, while in Canada, would look for opportunities to purchase a house in that city.

[20]      In De La Cruz, the refusal was based on the fact that they may not have been bona fide visitors because they had outstanding permanent residence applications. The other ground for refusal was that "we would not normally issue visas to facilitate obtaining a visa for the United States". In De La Cruz, as here, the applicant argued the visa officer exceeded his jurisdiction and took into account extraneous matters when arriving at his decision. The argument was that there was no existing policy stating an intention to seek a visa to the United States is not a proper reason for issuing visitors' visas to Canada. It was also argued the Canadian visa officer in Manila based his decision solely on the refusal by the United States for visas to that country. The respondent in De La Cruz, as here, submitted the decision of a visa officer to issue or refuse a visitor's visa is discretionary in nature and judicial review of the exercise of this type of discretion is limited to determining whether it was exercised in good faith, within jurisdiction and in a fair manner.

[21]      Jerome A.C.J. in De La Cruz, after analyzing the scheme of the Act and Regulations concerning applications for visitor's visas said this at page 287:

Thus, the issuance of a visitor's visa is a discretionary decision. The duty of the visa officer is to accord proper consideration to any application, but he is not required to issue a visitor's visa unless he is convinced the applicant fulfils the legislative requirements.

[22]      Jerome A.C.J. approached the question whether there were grounds for quashing the decision of the visa officer in the following manner at page 287:

An application for certiorari is not an appellate review. To succeed, the applicants must do more than establish the possibility that I might have reached a different conclusion than the visa officer. There must be either an error of law apparent on the face of the record, or a breach of the duty of fairness appropriate to this essentially administrative decision.

[23]      In De La Cruz, Jerome A.C.J. indicated the onus is on the visitor to show that his entry to Canada would not be contrary to the Act or Regulations, a fact reinforced because under the Act, an applicant is presumed to be an immigrant seeking permanent residence status and this intent must be countered by evidence of a temporary purpose. Jerome A.C.J. said, in such a situation, the intent of the applicant is properly subject to examination by visa officers and factors which may show non-temporary purpose will be taken into consideration.

[24]      Jerome A.C.J. then addressed the question of the denial of Canadian visitor's visas on the grounds the applicants intended to apply for American visas in Toronto. Jerome A.C.J. held that "[T]hough no policy dictates refusal simply because the applicants intend to apply for American visas, it is within the discretion of the visa officer to cite this as a reason". He held that the permanent residence application and Policy Guideline IS 1.56(3) permits persons to initiate permanent residence applications in a country other than that of their citizenship but states that as "a general rule" the individual should have sufficient long-term temporary status in, or regular entry to, that country to have access to the visa office during all phases of processing. He held that this guideline clearly discourages any expectation that Canada will aid applicants who do not have such access.

[25]      Examining the decision of the visa officer, he declined to make a finding the visa officer based his decision solely on the refusal of American officials to grant the requested U.S. visas and found the visa officer's notation at the time of the interview seemed to Jerome A.C.J. a simple jotting down of the history of the applicants' case.

[26]      Jerome A.C.J. concluded as follows at page 288:

In summary, it is my opinion that the written reasons for refusal were sufficient, proper and within the jurisdiction of the visa officer. As I have been unable to find an error of law or breach of natural justice, the decision of the visa officer cannot be disturbed.

[27]      In terms of mandamus, Jerome A.C.J. refused mandamus on the following basis at page 287:

Since the evidence clearly indicates that the visa officer turned his mind to the issue, mandamus cannot issue here. As was held by the Court of Appeal in M.E.I. v. Kahlon, [1986] 3 F.C. 386, once the visa officer had disposed of the application for the visitors' visas, there remained no duty to be performed enforceable by mandamus.

[28]      Chen v. M.E.I., IMM-2225-98, April 16, 1999, Evans J., is a case where the applicant had designated Detroit as his preferred processing post for the consideration of his application for permanent residence. His application was not dealt with at Detroit but paper screened by the Regional Program Centre ("RPC") in Buffalo, N.Y. The applicant argued the creation of the RPC was not supported by any legal authority and the applicant was entitled to have his application determined at the post that he designated when he filed his visa application. Evans J. held this argument to be without merit in the following terms:

I find this argument equally without merit because it assumes that every administrative action requires discreet legal authorization. This is not true of administrative action that has no legal consequences for individuals, nor adversely affects their legal rights or interests. The internal arrangements made for the processing of visa applications are within the discretion of the Minister. Moreover, as Mr. Leahy observed, subsection 115(b) of the Immigration Act empowers the Minister by order to designate immigration stations for the purpose of the Act.

Visa applicants have no statutory right to have their application processed at any particular post. Naturally, efforts will be made to ensure that applicants are interviewed at the post most convenient for them, so they do not have to travel further than is necessary. The fact that applicants are asked on the application form to designate the post at which they would prefer their application to be processed, and that a fee is charged for processing visa applications, do not create any contractual right in an applicant to have the application processed at the designated post.

[29]      Evans J. in Chen, (supra), examined another issue. After the applicant had filed his application, he received a letter of acknowledgement from the RPC indicating the "paper screening" stage of the process would be completed in twelve weeks' time, that is, a determination would be made within that period to grant or refuse a visa, or to refer the file to a visa officer to allow the applicant to be interviewed. The visa officer took more than twelve weeks to render a decision, contrary to the advice given to the applicant in the standard form acknowledgment of receipt of his application. Evans J. rejected the argument the visa officer was without jurisdiction. He said this:

In my view, even if soundly based on the facts, which I do not need to decide, this argument has no merit in law. In the absence of prejudice to the person concerned, failure to observe a statutory time limit within which a decision must be made does not usually invalidate a decision made outside that period.... In view of this, it would be highly anomalous if a visa officer's failure to comply with a non-statutory time period were to invalidate the refusal to issue a visa.

CONCLUSIONS

[30]      Applicant says the visa officer had no right to refuse his visa application on the grounds it was too early for reason of an existing and valid CVV until June 25, 1999. As an abstract and isolated proposition, this argument has certain attractions because the Act and Regulations contemplate a CVV applicant making a visa application before the expiry of a current CVV and it is normal for a visitor's visa (unlike perhaps an application for a visa for permanent residence) to be processed rapidly because entry into Canada is for a temporary and limited purpose.

[31]      However, in my view, this argument would have the Court NOT read the visa officer's decision, in this case, as a whole; moreover, this argument would have the Court ignore the decision's context and circumstances which is the very reason why visa officers, in the discharge of their statutory duty, are given a discretion to be properly exercised depending upon the circumstances of each case.

[32]      Read as a whole, I find that the visa officer properly exercised his discretion in this particular case and that it was not improper for him to conclude the applicant's visa application was premature. To find otherwise, in my view, would mean an applicant in the situation of the applicant who worked and resided in Beijing, the place where his first CVV had been issued, could attend any Canadian visa post, file a visa application for a renewal of a multi-entry CVV valid for two years, demand an interview by a visa officer, demand a decision that day because the applicant was leaving the country of filing the next day. One could characterize such a case as one of visa post shopping.

[33]      In my opinion, the visa officer properly concluded, with reference to the application before him, that he would not be pressured into issuing a visa immediately to meet the applicant's convenience because the applicant's request was not a simple one, required verification and more documentation and required input from the Canadian Consulate in Beijing where the applicant worked and resided and where the CCG in Beijing had a CVV file history on the applicant. Issuing a visitor's visa, particularly a multiple entry visa valid for two years (albeit subject to cancellation) is not a rubber stamping process. The visa officer had a statutory duty to perform. He had to be satisfied he was not. In the circumstances, there is no basis for quashing the visa officer's decision. Mandamus will not lie for reasons expressed by the Federal Court of Appeal in Kahlon, (supra), and I do not need to deal with the extensive submissions by counsel for the applicant on the issue of when or, if at all, it would be appropriate for this Court to issue a command directive or directed verdict in this type of case. In addition, given the result, I need not consider the extensive arguments put forward by counsel for legal costs.

[34]      For all of these reasons, this application for judicial review is dismissed.

     "François Lemieux"

    

     J U D G E

OTTAWA, ONTARIO

JULY 9, 1999