Date: 20100204
Docket: IMM-863-09
IMM-864-09
Citation: 2010 FC 115
Ottawa, Ontario, February
4, 2010
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
ZAHARAH SANIF,
MUSA AHMAD
and
KHAIRUL ANUAR MUSA
Applicants
and
THE MINISTER OF PUBLIC SAFETY
AND
EMERGENCY PREPAREDNESS
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
These
reasons for judgment and judgment refer to two applications for judicial review
pursuant to section 72 of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (IRPA) which were heard together.
[2]
The
application in Court file IMM-864-09 seeks judicial review of a decision made
by Immigration Officer Chong of the Canadian High Commission in Singapore on
December 1, 2008, refusing an application for permanent residence in Canada
under the Economic Class, Skilled Worker, on the ground that the principal
applicant, Ms. Zaharah Sanif, had not complied with subsections 16(1) and 11(1)
of IRPA.
[3]
The
second application for judicial review in Court File IMM-863-09 refers to the
February 20, 2009 decision of Minister’s Delegate Blais issuing Exclusion
Orders to the applicants pursuant to paragraphs 41(a) and 20(1)(a) of the IRPA
and section 6 of the Immigration and Refugee Protection Regulations,
SOR/2002-227 (IRPR).
[4]
For
the reasons that follow, the two applications are dismissed.
Background
[5]
The
principal applicant, Ms. Zaharah Sanif, applied for permanent residence under
the Federal Skilled Worker Class in January 2008 on the basis of an offer of
employment to Ms. Sanif from a Scarborough, Ontario firm called DPI Media Group
Ltd., and a positive arranged employment opinion (AEO) issued by Service Canada.
Ms. Sanif and her husband have three dependent children: one son and two daughters.
All were included in the application. The application was approved and the
applicants were issued permanent resident visas on November 3, 2008.
[6]
On
or about November 13, 2008, Mr. Chong, the immigration officer who was handling
the file, was told by a colleague in Kuala Lumpur that Ms. Sanif’s
prospective employer in Canada was linked to other visa applications
which were considered questionable. An applicant in one of these other cases
had stated to a visa officer in Kuala Lumpur that he had paid an
agent about twenty thousand Canadian dollars for a fraudulent job offer. Other
cases involving that agent were under investigation.
[7]
On
November 26 or 27, 2008 (the evidence on the date conflicts but it is more
likely to have been the 26th, a Wednesday), Mr. Chong instructed his
assistant to ask Ms. Sanif to attend at the High Commission for an interview.
The assistant contacted Ms. Sanif by telephone and asked her to come to the
High Commission to discuss problems with her visa.
[8]
There
is no dispute that Ms. Sanif was asked to attend at the High Commission for an
interview about the visas. The applicants have filed a transcript of the call
from a recording made for business purposes by Ms. Sanif’s Singapore employer.
From the transcript, it appears the assistant told Ms. Sanif that she needed to
come in because there was a problem with the printing of the visas. Ms. Sanif
agreed to attend for an interview to discuss the problem. She said that she was
unable to go before the end of the week as she was winding up her job and asked
that the meeting take place on the following Monday, December 1, 2008. On
Thursday, November 27, 2008, Ms. Sanif bought air tickets to Canada for herself,
her husband and their son for a December 2, 2008 departure. The daughters, who
were in school, were to follow later.
[9]
By
noon on December 1, 2008, Ms. Sanif had failed to attend at the High Commission.
Mr. Chong directed the assistant to contact Ms. Sanif to find out why she had
not appeared. The assistant’s evidence is that she made calls to the phone
numbers listed on the visa application. A call was made to Ms. Sanif’s mobile
phone and the person who answered indicated that Ms. Sanif was unavailable and ended
the call. A second call was then made to Ms. Sanif’s husband’s phone. The
person who answered did not want to pass the phone to Ms. Sanif or her husband.
Someone in the background was heard advising the person on the phone and later
the call was terminated abruptly.
[10]
Because
Ms. Sanif did not appear at the High Commission to respond to the concerns about
her visa and that unsuccessful attempts had been made to contact her, and based
on the possibility that the job offer was not genuine, Mr. Chong reached the
conclusion that Ms. Sanif was inadmissible and would not return the visas to
the office voluntarily, according to the notes he entered on December 1, 2008
on the Computer Assisted Immigration Processing System (CAIPS). Mr. Chong then
proceeded to cancel the visas and entered a lookout on the Field Operations
Support System (“FOSS”) to alert immigration officers at ports of entry in Canada. He also
sent a registered letter to the applicants’ Singapore address
advising that the visas had been cancelled. The letter was later returned
marked “unclaimed”.
[11]
On
December 2, 2008, the applicants boarded a flight for Canada. At the port
of entry, they were told that their visas had been cancelled by the High
Commission in Singapore. At that
time, the applicants chose to withdraw their applications and signed “allowed
to leave” forms. They were granted entry for further examination. The
applicants subsequently failed to appear for their scheduled departure the
following day as they decided to seek legal counsel.
[12]
The
applicants returned to the airport for an interview on December 27, 2008, at
which time the review was adjourned until January 14, 2009, to allow the
applicants’ legal counsel time to look into the matter. The review was again
adjourned until February 20, 2009, upon request from the applicants’ counsel.
In the interim, it was confirmed that the job offer from DPI Media Group Inc. remained
open and an investigation there on December 16, 2008 failed to produce evidence
that Ms. Sanif’s job offer was fraudulent. According to the report prepared by
CBSA officers, Ms. Sanif had not relied upon the agent believed to have been
involved in the fraudulent applications.
[13]
During
the interview with the Minister’s Delegate, Ms. Sanif stated that she had not
been told that the visas had been cancelled by the High Commission in Singapore on December
1st, 2008. Acknowledging that someone had called her indicating a problem with
the visas and the need for a meeting at the High Commission, Ms. Sanif said that
she had dismissed the telephone call as she had not received a letter to confirm
the meeting. On prior occasions when she had been called in for an interview,
she had received a confirming letter which she would show at the gate to gain
entrance to the High Commission.
[14]
Ms.
Sanif said that she looked at the visas, did not see any problem with them and
decided to use them to come to Canada. The Minister’s Delegate explained that
the situation before him to consider would not have arisen if Ms. Sanif had
attended the scheduled interview at the High Commission in Singapore as asked.
[15]
During
the review, the Minister’s Delegate considered the information provided by counsel.
However, he considered that since the job offer was considered suspect and
given the applicants’ actions - that is, their failure to attend the interview
at the visa office in Singapore and their decision to decline the opportunity
to withdraw their applications by failing to appear for their scheduled
departure - no other alternatives were available but to issue removal orders. Accordingly,
Exclusion Orders were issued for the applicants on February 20, 2009.
[16]
I
note that the applicants have applied for Temporary Resident Permits (TRPs)
since receiving the Exclusion Orders. Those applications were refused and are
the subject of another application for judicial review (IMM-4289-09) that remains pending before the Court.
Decisions Under Review
Refusal of application
for permanent residence (IMM-864-09)
[17]
The
immigration officer’s CAIPS notes and his letter, both dated December 1,
2008 constitute his reasons for decision:
We received info suggesting that the
employment offer may be fraudulent. This employer - DPI Media Group - is linked
to other questionable cases.
As a result we have requested PA to come
into our office to clarify questions and to demonstrate that she is not
inadmissible to Canada.
On 27 Nov 2008 we (MEL on my behalf)
contacted PA by phone. MEL spoke with PA) personally and explained that she was
required to bring her passports and visas to our office. She was asked to come
into our office on Friday (28 Nov). She stated that she was busy on Friday and
wanted to change the date to Monday (1 Dec 2008). We accommodated.
PA was required to attend an interview at
our office at 0900 hours this morning. She failed to show.
MEL called her at noon to ask for
explanation for her failure to appear.
She called her HP and someone answered
the phone. The person stated that her mother was not in and hung up. MEL then
called PA’s husband and again someone answered the call but did not want to
pass the phone to PA or her husband. MEL could hear that some instructions were
in the background and the person who answered the call was both rude and
nervous / anxious. The person again terminated the call abruptly.
We are unable to make further contacts
with PA.
Given that PA failed to appear to answer
questions and to clarify our concerns, I have come to the conclusion that, on
balance of probabilities, she is not inadmissible and would not likely return
the PR visas to our office voluntarily.
Application is therefore refused.
PR Visas are cancelled and declared void
and invalid.
Letter to advise PA not to travel to Canada with this visas.
B0531 93114 NYC 01 — DEC—2008
VISA SECTION
P O BOX 845
ROBINSON ROAD
S1NGAPORE 901645
REGISTERED
Date: 01 December 2008
File Number: B0531 9311 4
Zahara Sanif
101 Lorong Sarina
#01-01
Singapore 416729
Dear Ms Sanif
This refers to your application for
permanent residence in Canada.
Under subsection 16(1) of the Immigration
and Refugee Protection Act, 2001, you are required to provide such
documentation as may be requested by a visa officer to determine your
admissibility to Canada. You have not complied with
the requirements of this subsection which reads:
16(1) A person who makes an application
must answer truthfully all questions put to them for the purpose of the
examination and must produce a visa and all relevant evidence and documents
that the officer reasonably requires.
We have received information recently
that raised some concerns about the bona fides of your employment offer. On 27
November 2008 my assistant contacted you by telephone and informed you that you
were required to attend an interview with an officer on 01 December 2008. You
were also requested to bring with you the passports and permanent residence
visas issued by our office earlier.
Subsection 11(1) of the Immigration
and Refugee Protection Act, provides that a foreign national must, before
entering Canada, apply to an officer for a
visa or any other document requited by the Regulations. The visa or document
shall be issued if, following an examination, the officer is satisfied that the
foreign national is not inadmissible and meets the requirements of this Act.
Without a genuine and valid employment
offer you would not meet the minimum selection points. You failed to comply
with our request to attend the interview and to clarify our concerns, I am on
balance of probabilities not satisfied that you are not inadmissible and meet
the requirements of this Act. Your application is therefore refused and the
visas issued to you and your dependants on 3 November 2008 are hereby
cancelled. These visas are no longer valid for travel to Canada.
Please note that the port-of entry has
been informed of our decision and any attempt by you or your dependant to use
the visa may result in refusal of entry to Canada and possibly be subject to removal.
Yours sincerely
M. Y. Chong
Immigration Officer
Immigration Section
The Exclusion Orders of
February 20, 2009 (IMM-863-09)
[18]
Minister’s
Delegate Blais issued the Exclusion Orders pursuant to the IRPA as he was
satisfied that:
a. The principal
applicant was a person described in subsection 41(a) of the Act in that, on a
balance of probabilities, there are grounds to believe is a foreign national
who is inadmissible for failing to comply with the Act through an act or
omission which contravenes, directly or indirectly, a provision of the Act,
specifically:
b. Paragraph
20(1)(a) of the Act requires that every foreign national, other than a foreign
national referred to in section 19 who seeks to enter or remain in Canada must
establish, to become a permanent resident, that they hold the visa or other
document required under the regulations and have come to Canada in order to
establish permanent residence.
c. Rule 6 of the
Regulations (IRPR) requires that a foreign national may not enter Canada to remain on
a permanent basis without first obtaining a permanent resident visa.
[19]
The
Minister’s Delegate determined that the visas had not been presented within
their period of validity. The visas had been cancelled as of December 1st, 2008
and the applicants arrived on December 2nd.
Issues
[20]
The
issues raised by the parties can be narrowed to the following:
1.
What is the effect in law of the decision of the immigration officer to
cancel the visas held by the applicants on December 1, 2008 (IMM-864-09)?
2.
Did the Minister’s Delegate make a reviewable error when he issued the
Exclusion Orders based on the circumstances before him (IMM-863-09)?
Analysis
[21]
Several
decisions of this Court have held that Dunsmuir v. New Brunswick, 2008
SCC 9, [2008] S.C.J. No. 9, has not changed the law in respect of factual
findings subject to the limitation in paragraph 18.1(4)(d) of the Federal
Courts Act: De Medeiros v. Canada (Minister of Citizenship and
Immigration), 2008 FC 386, [2008] F.C.J. No. 509; Obeid v. Canada
(Minister of Citizenship and Immigration), 2008 FC 503, [2008] F.C.J. No.
633; Naumets v. Canada (Minister of Citizenship and Immigration), 2008
FC 522, [2008] F.C.J. No. 655. It has also been held that a tribunal’s
decision concerning questions of fact is reviewable upon the standard of
reasonableness: Sukhu v. Canada (Minister of Citizenship and Immigration),
2008 FC 427, [2008] F.C.J. No. 515, see also Navarro v. Canada (Minister of
Citizenship and Immigration), 2008 FC 358, [2008] F.C.J. No. 463, at
paras. 11-15.
[22]
The
immigration officer’s factually intensive analysis and application of
discretion are central to the officer’s role as a trier of fact. As such, these
findings are to be given significant deference by the reviewing Court. The
immigration officer’s factual findings should stand unless the reasoning
process was flawed and the resulting decision falls outside the range of
possible, acceptable outcomes which are defensible in respect of the facts and
the law: Dunsmuir, above, at para. 47.
[23]
No
deference is due if the Court determines that an administrative decision-maker
has failed to adhere to the principles of procedural fairness: Canadian
Union of Public Employees v. Ontario (Minister of Labour), [2003] 1
S.C.R. 539, [2003] S.C.J. No. 28, at paragraph 100. Such matters continue to
fall within the supervising function of the Court on judicial review: Dunsmuir
at paragraphs 129 and 151.
[24]
As
I understand the legislative scheme, a foreign national wishing to enter Canada must apply
to an officer for a visa (subsection 11 (1) of the IRPA). An officer is then
authorized to proceed with an examination (subsection 15 (1)). The visa may be
issued if, following an examination, the officer is satisfied that the foreign
national is not inadmissible and meets the requirements of the Act. There is no
dispute in this case that the visas held by the applicants were validly issued
and remained valid until December 1, 2008.
[25]
Subsection
16(1) of the IRPA provides in English: “A person who makes an application must
answer truthfully all questions put to them for the purpose of the examination
and must produce a visa and all relevant evidence and documents that the
officer reasonably requires”. The French version reads as follows : « L’auteur
d’une demande au titre de la présente loi doit répondre véridiquement aux
questions qui lui sont posées lors du contrôle, donner les renseignements et
tous éléments de preuve pertinents et présenter les visa et documents requis. »
[26]
As
I read subsection 16(1), there is no temporal limit to the requirements to
answer truthfully and to produce relevant documents, including visas, for the
purpose of examination. The inclusion of the reference to visas in the
enactment must be taken as an indication that the legislature contemplated that
the need may arise for an officer to require the production of visas previously
issued for the continuing purpose of examination. Thus the officer was acting
within the intent of the legislative scheme when he required the principal
applicant to re-attend at the High Commission and to produce the visas issued
to the family.
[27]
There
is a presumption that once a visa is issued it remains valid for the duration
of the term for which it is granted. There is an exception to this general
principle where the visa is revoked or cancelled by a visa officer: Canada (Minister of
Citizenship and Immigration) v. Hundal, [1995] 3 F.C.
32, [1995] F.C.J. No. 918, (T.D.), at para. 19. The enactment of the
IRPA has been held not to have altered that authority: Zhang v. Canada (Minister of
Citizenship and Immigration), 2007 FC 593, [2007] F.C.J. No. 795.
[28]
Zhang is a case in
which a visa was revoked for misrepresentation. The applicant was informed of
this by telephone but proceeded to purchase a ticket and came to Canada. The issue
was whether the Immigration Appeal Division had the jurisdiction to hear her
appeal under subsection 63(2) of the IRPA. Ms. Zhang argued in that case that Hundal,
above, was no longer authoritative as it had been decided under the former
legislation and not the IRPA. Mr. Justice de Montigny disagreed and held that Hundal
continued to apply. I am of the same opinion.
[29]
Relying
on the reasoning in Zhang at paragraph 11, regarding the legislative
intent, IRPA provisions are said only to apply to an applicant "who
holds" a permanent resident visa. As the applicants’ visas had been
cancelled by the immigration officer, they were invalid as of December 1, 2008.
Consequently, the applicants did not hold permanent resident visas when they
arrived in Canada on December
2, 2008.
[30]
I
also agree with the view expressed by Mr. Justice de Montigny in Zhang,
at paragraph 13, that “Parliament can hardly be said to have intended that
foreign nationals would be able to use visas revoked by Canadian officials in
an attempt to fraudulently enter the country...” Lastly, as stated at paragraph
16 of Zhang, the fact that the applicants still held the physical copies
of the visas did not change the legal consequence of their revocation. Nor was
this consequence altered by the subsequent investigation.
[31]
In
Hundal, Mr. Justice Rothstein considered that the authority to revoke
arose by necessary implication, in part because the statute in effect at the
time required that the person seeking admission be in possession of a “valid
immigrant visa”. He concluded, at paragraph 19, that when a visa officer
cancels a visa it is no longer “valid” citing Minister of Employment and
Immigration v. Rogelio Astudillo Gudino, [1982] 2 F.C. 40 (F.C.A.). While
the current legislation does not refer to validity, I think it is implicit in
the obligation in paragraph 20(1) (a) of the IRPA that any foreign national who
seeks to enter Canada to become a permanent resident must establish
that they hold the visa required under the regulations. I also think that the
reference to validity is implicit in the obligation at section 6 of the
regulations that a foreign national may not enter Canada to remain on
a permanent basis without first obtaining a permanent resident visa. Revocation or cancellation of the visa requires
some decision by the visa officer. As long as a decision to revoke or cancel
has been made, the visa is no longer valid.
[32]
In
Hundal it was found that the visa was initially valid, as in this case, and
the High Commission had only the intention to investigate (Hundal, at
paragraph 21). Wanting to investigate the suspect job offer, the High
Commission convoked Ms. Sanif to an interview. Only after the failure of Ms.
Sanif to attend the interview for that purpose did the High Commission proceed
to cancel the visas in light of the circumstances which included the difficulties
encountered in attempting to communicate with Ms. Sanif by telephone on
December 1, 2008.
[33]
In
this instance, the officer was acting reasonably on the basis of the
information that he had before him. Questions had been raised about the
validity of the job offer and the principal applicant had failed to attend an
interview scheduled to address those questions. The officer had the authority
to cancel or revoke the visas on December 1, 2008 if he was not satisfied that
the applicants were not inadmissible. Once Officer Chong had cancelled the
visas, they were no longer valid and could not be used to enter Canada.
[34]
There
was no denial of procedural fairness in the manner in which the officer
proceeded. Ms. Sanif was informed that there was a problem with the visas and
she was given an opportunity to discuss the matter in an interview with the
immigration officer. The officer, through his assistant, had accommodated her
schedule by deferring the interview until the following Monday.
[35]
Ms.
Sanif can’t now complain that she was denied an opportunity to be heard before
the decision was made: Mugu v. Canada (Minister of
Citizenship and Immigration), 2009 FC 384, [2009] F.C.J. No. 457, at
para. 64; Wayzhushk Onigum Nation v. Kakeway, 2001 FCT 819, [2001]
F.C.J. No. 1167; Begum v. Canada (Minister of
Citizenship and Immigration), 2006 FC 164, [2006] F.C.J. No. 196, at
para. 32.
[36]
There
are no unique or special circumstances justifying Ms. Sanif’s failure to attend
the scheduled interview: Ghofrani v. Canada (Minister of
Citizenship and Immigration), 2008 FC 767, [2008] F.C.J. No. 1005, at
para. 2. It was not open to her to decide she would not attend merely because she
could see nothing wrong on the face of the visas. The applicants had an ongoing
duty to demonstrate that they were eligible for visas: Ghofrani, above.
[37]
In
this instance, the applicants’ eligibility was dependent upon the employment
offer. When the officer was led to have doubts about the legitimacy of the job
offer, it was open to him to conclude that the principal applicant had not
satisfied him that she was admissible. The unfortunate use of the double
negative in his CAIPS notes does not alter the finding more clearly expressed
in the letter issued on December 1, 2008.
[38]
In
light of the missed interview and the resulting follow-up attempts by telephone
made by the program assistant, the immigration officer had valid reasons to suspect
that Ms. Sanif was evading his attempts to clarify the matter. He took steps to
notify Ms. Sanif of the visa cancellation by letter that was sent out on the
day of the missed interview. The principal applicant did not receive the letter
because she had already left for Canada. Ms. Sanif cannot claim
in those circumstances that she had not received notice that her visa had been
cancelled.
[39]
The
immigration officer, having to choose between allowing persons who may not be
eligible for permanent resident visas to enter Canada or to cancel
the visas, chose the option that preserved the integrity of the immigration
system. In the circumstances, the decision was reasonable.
[40]
I
agree with the respondent that factors beyond those considered by the
immigration officer, such as the subsequent evidence relating to the allegedly fraudulent
AEO and the results of the subsequent CBSA investigation cannot be used to
impugn a decision that was valid at the time that it was made.
[41]
Consequently,
it is not open to this Court to substitute its own view of a preferable outcome
now that additional factors have emerged which were not before the immigration
officer at the time of his decision: Canada (Citizenship and Immigration) v.
Khosa, 2009 SCC 12, [2009] S.C.J. No. 12, at para. 59. The application for
judicial review in Court File IMM-864-09 must, therefore, be dismissed.
[42]
Turning
to the decision of Minister’s Delegate Blais to issue the Exclusion Orders; as
indicated above decisions concerning questions of fact are reviewable
upon the standard of reasonableness: Sukhu, above, see also Navarro,
above, at paras. 11-15.
[43]
The
Minister’s Delegate’s factual analysis is central to his role as a trier of
fact. As such, these findings are to be given significant deference by the
reviewing Court. The Minister’s Delegate findings should stand unless his
reasoning process was flawed and the resulting decision falls outside the range
of possible, acceptable outcomes which are defensible in respect of the facts
and the law: Dunsmuir, above, at para. 47.
[44]
The
applicants submit that the Minister's Delegate was under the false impression
that a) the principal applicant had been advised of the visa cancellation over
the phone prior to her departure for Canada, and b) that her application was
linked to the suspect agent and the other fraudulent applications and that the
visas were, therefore, cancelled on the basis of a fraudulent AEO.
[45]
I
agree with the applicants that contrary to an e-mail sent by Patricia Brown of
the High Commission to Minister's Delegate Blais, the record indicates that at
no time during the telephone calls from Mr. Chong’s office was the principal
applicant advised that the visas were cancelled. However, I disagree with the
applicants that the telephone calls indicating "problems with the
visas" had nothing to do with their validity. In my view, the record
supports the inference that Ms. Sanif was put on notice that the validity of
the visas was in question.
[46]
Even
if the Minister's Delegate had been correctly apprised of the factors referenced
by the applicants, in my view, it would not have affected the outcome. On
arrival in Canada, the
applicants were persons who were not in possession of valid permanent residence
visas. The Minister's Delegate based his decision on the relevant factors that
the applicants tried to enter Canada on cancelled visas, and that when advised
of this, they declined the offer to return home.
[47]
The
Minister's Delegate's review notes dated February 19, 2009 (the day prior to
the issuance of the Exclusion Orders) indicate that the Minister's Delegate
found that the visas had been cancelled as of December 1, 2008 and that the subjects
arrived on December 2. It was found that the visas had not been presented
within their period of validity.
[48]
The
review notes also indicate that the Minister's Delegate had some concerns
regarding the decision of the immigration officer to cancel the visa as it
would seem that there was still a job offer of sorts available. The Delegate
properly recognized, however, that he did not have the authority to issue a new
permanent resident visa.
[49]
The
Delegate had evidence that the applicants' visas were revoked before they
entered Canada to take up
permanent residence. It was open to him to find that the applicants failed to
meet the visa requirement. Accordingly, I am of the view that both the finding
of inadmissibility under paragraph 41(a) of the IRPA and the decision to issue
the Exclusion Orders were reasonable.
[50]
Ms.
Sanif could not just assume that the visas would remain valid if the family
managed to reach Canada after she was made aware of problems by the
High Commission in Singapore. By stating that they had a legitimate
expectation in the continuation of the visas, the applicants are essentially
alleging a substantive right, which falls outside the scope of the principle as
defined in Baker v. Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817, [1999] S.C.J. No. 39, at para. 26.
[51]
The
record indicates that the requirements of procedural fairness were met. The
Minister’s Delegate was open-minded, he met with the applicants in order to
discuss the concerns they may have had with regard to the Exclusion Orders and
allowed adjournments to permit the applicants to obtain legal representation
and to prepare for the interview.
[52]
Based
on the circumstances known to the Delegate at the time which included a “suspect”
AEO, the principal applicant’s decision not to attend the interview at the High
Commission in Singapore, the applicants’ withdrawal of their applications at
the port of entry, and their failure to show up for their scheduled departure,
it was reasonable for the Delegate to issue the Exclusion Orders.
[53]
It
was also reasonable for the Minister’s Delegate to rely on the immigration
officer’s decision in Singapore, as the holding of a valid permanent resident
visa is the basis for one’s admissibility to Canada.
[54]
Despite
the concerns of the Delegate regarding the actual implication of Ms. Sanif in
the “suspect” employment offer, I agree with his conclusion that the situation
would not have arisen had she attended the scheduled interview at the High
Commission in Singapore and
addressed the officer’s concerns.
[55]
As
I find the issuance of the Exclusion Orders by the Minister’s Delegate to be
reasonable and within the range of possible and acceptable outcomes, it is not
open to this Court to substitute its own view of a preferable result now that
additional factors have emerged regarding the legitimacy of the arranged
employment offer: Dunsmuir, above, at para 47; Khosa, above, at
para. 59. Accordingly, the application for judicial review in Court File
IMM-863-09 must also be dismissed.
[56]
The
applicants’ propose seven questions for certification as serious questions of
general importance. The questions are the following:
1. As there is no provision under
the Immigration and Refugee Protection Act (IRPA) or the Immigration
and Refugee Protection Regulations (IRPR) that authorizes an officer to
cancel / revoke a visa after issuance, and the Immigration Manuals speak only
to cancellation / revocation where a visa is issued based on a fraud or
misrepresentation, does a visa officer have the authority to revoke a permanent
resident visa issued to a foreign national based on a finding of non-compliance
(IRPA, section 41)?
2. In the circumstances set out
in question 1, assuming the question is answered in the affirmative, is a visa
officer required to make a specific admissibility finding prior to cancelling a
permanent resident visa after it has been issued?
3. The Hundal v. Canada
(1995 CanLII 3609) line of cases pre-IRPA and Zhang v. Canada (2007 FC
593) do not speak to the specific circumstances when a visa officer may cancel
or revoke a visa beyond the four exceptions: The De Decaro: exception: a
visa becomes ipso facto invalid where there is a frustration or impossibility
of performance of a condition on which the visa was issued. (2) The Wong
exception: a visa is invalid where there is a failure to meet a condition of
the granting of the visa itself when the visa is issued. The visa is then void
ab initio. (3) A visa ceases to be valid when it reaches its expiry
date and (4) a visa is no longer valid if revoked or cancelled by a visa
officer. Where a visa officer makes a finding of non-compliance against a
foreign national who has been issued a permanent resident visa, does the visa
officer have the authority to cancel a permanent resident visa due to a change
in circumstances that is not irrevocable and that has not been proven on a
balance of probabilities pursuant to exception 4?
4. Section 16 (1) of the IRPA
states an admissibility examination must be undertaken by an officer. Does
this provision contemplate a Port of Entry examination or may it include an examination
by a visa officer post visa issuance?
5. Must a Minister’s Delegate
pursuant to sections 19(2), 20(1) (a), 21(1), and 31(2) of the IRPA and section
51 of the IRPR make an independent admissibility inquiry when a foreign
national presents a cancelled visa, which is still in its period of validity as
listed on the permanent resident visa, or rely upon the finding of a visa
officer who has cancelled the visa, in issuing an exclusion order?
6. Pursuant to question 5, must a
Minister’s Delegate assess the lawfulness of the cancellation of a permanent
resident visa when assessing the admissibility of a foreign national holding a
cancelled permanent resident visa at a port of entry or rely upon the finding
of a visa officer who has cancelled the visa, in issuing an exclusion order?
7. Where the Federal Court determines
that the cancellation of a visa was unlawful is the permanent resident visa
automatically reinstated?
[57]
The
respondents’ view, in brief, is that the proposed questions would merely re-argue
the judicial review application in the Court of Appeal. The respondents further
submit that the proposed questions do not meet the criteria for certification
as they are not of broad significance, nor would they be dispositive of this
matter: Canada (Minister of Citizenship and Immigration) v. Liyanagamage
(F.C.A.), (1994), 176 N.R. 4, [1994] F.C.J. No. 1637.
[58]
The
test for certification appears in paragraph 74(d) of the IRPA and Rule 18(1) of
the Federal Courts Immigration and Refugee Protection Rules / SOR 93-22,
as am. In Zazai v. Canada (Minister of Citizenship and Immigration), 2004 FCA 89; 318 N.R.
365 (Zazai), the threshold for certification was articulated as:
"is there a serious question of general importance which would be
dispositive of an appeal" (paragraph 11).
[59]
In Kunkel
v. Canada (Minister of Citizenship and Immigration), 2009 FCA 347, [2009]
F.C.J. No. 170, the Federal Court of Appeal determined that a certified
question must lend itself to a generic approach leading to an answer of general
application. That is, the question must transcend the particular context in
which it arose. I find it difficult to conclude that the applicants’ proposed
questions transcend the particular facts of this case.
[60]
The
applicants argue, among other things, that the question of whether a visa can
be cancelled for non-compliance with subsection 16(1) of the Act has not been
settled by Zhang, above, as that was a case of misrepresentation and not
non-compliance. I am unable to agree with that submission as the principle established
in Hundal, and applied in Zhang, that there was an exception to
the presumption of validity where a visa was revoked or cancelled did not turn
on the reason for the revocation or cancellation. That, in my view, disposes of
questions one through four.
[61]
The
applicants' fifth and sixth proposed questions for certification as to whether
the Minister's Delegate must make an independent admissibility inquiry and must
assess the lawfulness of the cancellation of a permanent resident visa would not
be determinative of any appeal in this matter. The applicants arrived in Canada with cancelled
visas and the Minister's Delegate had the jurisdiction to issue the Exclusion Orders
based on the information before him.
[62]
In
Hundal, above, at para. 13, it is said the immigration process involves
two stages, the first being an examination by a visa officer and a decision by
that officer as to whether to issue a visa and, the second being an examination
by an immigration officer at the port of entry and a decision by that officer
to grant landing. A visa only allows an individual to present him or herself
for landing at a port of entry whereupon there is a second examination to
determine if he or she still meets the requirements of the Act and Regulations
for the purposes of landing.
[63]
In
the case of Ms. Sanif, the Minister's Delegate was the officer at the second
stage of the immigration process who determined that the applicants did not
meet the requirements of the Act and Regulations for the purposes of landing as
they did not hold valid permanent resident visas on December 2, 2008. Faced
with applicants in possession of cancelled visas, the Minister's Delegate made
his own independent assessment of admissibility and had the jurisdiction to
consider the basis of the immigration officer's decision to cancel the visas.
[64]
In
Liyanagamage, above, at para. 4, the Federal Court of Appeal held that a
certified question must be one which, in the Court's opinion, contemplates
issues of broad significance and general application, transcends the interests
of the immediate parties to the litigation, and is determinative of the
appeal. Again, as I believe that this case turns on its particular facts, I do
not think that the applicants’ questions meet these criteria. I am unable,
therefore, to certify them.
[65]
As
I have stated above, there were no unique or special circumstances justifying
Ms. Sanif’s failure to attend the scheduled interview and the immigration
officer responded appropriately, by cancelling the visas, in order to preserve
the integrity of the immigration system. The situation that is before the Court
for review would not have occurred had Ms. Sanif attended the scheduled
interview at the High Commission in Singapore. While the result may
seem harsh to the family, it stems from their precipitous decision to purchase
the tickets and leave for Canada without attempting to address the
officer’s concerns. If relief is to be granted, I believe it is for the
Minister to consider employing the discretion accorded that office by the
legislation to grant an exemption from the visa requirements.
JUDGMENT
IT IS THE JUDGMENT OF
THIS COURT that the applications for judicial review in Court files
IMM-863-09 and IMM-864-09 are dismissed. A copy of this judgment shall be placed
on each file. There are no questions to certify.
“Richard
G. Mosley”
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