Date : 19980831
Dossier : IMM-121-98
BETWEEN:
ZHIWEN FENG, YINGRONG SU
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MacKAY, J.
[1] The applicants seek an order quashing the decision of the visa officer in Hong Kong, made on November 4, 1997, rejecting the applicants" applications for permanent residence in Canada. The applicants also seek an order that their application be reconsidered by a different visa office or officer and requiring the visa officer to apprise the applicants of any concerns he or she may have, so that the applicants may deal with those concerns before the officer"s decision is made.
Background
[2] In April 1997, the applicants" immigration consultant couriered to the respondent in Hong Kong the applicants" application forms, complete with supporting documents and a bank draft to cover the processing fee. Applications were included for each of the adult applicants, a husband and his wife, each to be assessed independently, and for their dependant child. The correct filing fee had been received by the consultant on April 15 and deposited in the consultant"s business account, but the bank draft forwarded by the consultant with the applications did not include the $100 application fee for the applicants' child. The courier package, sent by courier, was received by the respondent in Hong Kong on April 27, 1997.
[3] On May 1, 1997, the respondent"s occupation list changed, as did the demand for the occupations under which the applicants had applied. In mid-May, the applications were returned to the consultant from the Hong Kong visa office owing to the applicants' failure to include payment of the application fee for the child. The omission of this money is acknowledged by the consultant as his fault as he had inadvertently erred in forwarding the filing fees in his rush to have many files of clients submitted before changes to the occupation listings and needs were to be effective.
[4] The application was re-submitted and received by the Hong Kong officer on September 22, 1997. The consultant also sent a letter, dated August 29, 1997, explaining the error in the processing fee and requesting the exercise of positive discretion by the visa office. The initial screening of the application was done by a case analyst, on October 21, 1997, and then the application was reviewed by a visa officer on October 23. The application was then forwarded to the visa officer whose decision is here challenged. This officer assessed the applications on October 30, 1997, pursuant to s-s.8(1) of the Immigration Regulations, entering her impressions into the computerized record of the applicants" file, the CAIPS notes.
[5] In the application, the applicants sought to be considered under the CCDO system, not under new NOC system, then in force for some five months, since May 1, 1997. The Canadian Consulate General in Hong Kong only considers that an application for permanent residence has been received for consideration when it is physically in hand and is fully completed, with the correct fee enclosed. At this point, the application is considered locked-in. The visa officer determined that September 22, 1997 was the correct lock-in date for this matter and, on that basis, conducted an independent assessment that the application should be considered under the NOC system. Assessed under this system, the applicants did not receive sufficient points either to be interviewed or to be accepted for permanent residence. By letter dated November 4, 1997, the application was refused.
Arguments of the applicants
[6] The applicants submit that the respondent failed to lock in the date for the assessment of the applicants" applications as of the first time their application forms and filing fees were postmarked, or were received by the respondent, with the correct fees for the principal applicants. In this regard, it is urged that the applicants" child was not seeking assessment as an independent immigrant, as both parents were. As a consequence, the applicants submit that the visa office had the application forms and the correct filing fees for the two principal applicants for permanent residence before the change of the occupation list which occurred on May 1, 1997.
[7] The applicants' written submissions question the jurisdiction of any person other than the visa officer responsible to make even an initial assessment, but that was withdrawn at the hearing of this application.
[8] The applicants urge that the officer unfairly penalized the applicant for the actions of his representative. It is submitted that individuals should not suffer the consequences of actions taken by their representatives, without their authorisation. The correct filing fee had been given to the consultant, who failed to process it properly. The applicants, it is said, have been penalized unfairly for this unauthorized omission.
[9] Next, the applicants submit that the officer erred by relying on a third party assessment of their application without allowing the applicants an opportunity to disabuse the officer of any negative concerns. It is urged that the officer accepted the assessment of the first officer who had screened the file, and did not inform the applicants of the opinion rendered by this first officer. Therefore, the officer relied on extrinsic evidence not brought forward by the applicants.
[10] Finally, it is urged the visa officer failed to properly consider the exercise of positive discretion as requested by the consultant, pursuant to s-s.11(3) of the Immigration Regulations. It is urged that the first visa officer to review the file concluded that no grounds for consideration existed and there is no evidence that positive discretion was properly considered by the visa officer who ultimately made the decision in question. Her notes indicate that she considered humanitarian and compassionate factors, including gainful employment of the applicants in their country of origin and the fact that there were no immediate family ties in Canada. It is urged that s-s.11(3) of the Immigration Regulations should only be concerned with the economic abilities of applicants. To the extent that the reasons cited by the visa officer did not speak to the issue of the applicants" prospects in Canada, it is submitted that the visa officer failed to properly consider positive discretion.
[11] In my view the rejection of the applicants" original, April 1997, application, is a separate decision not here at issue. If this decision was, as the applicants urge, incorrect, it could have been questioned for judicial review brought in a timely fashion. At issue in this case is the officer"s exercise of discretion in assessing the application received in September 1997, which is only reviewable where made without regard to procedural fairness or in bad faith or on the basis of irrelevant considerations.
[12] The applicant relies in part upon the decision of my colleague Mr. Justice Heald in Xiao v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No.731, Court file IMM-5165-97, May 29, 1998 (F.C.T.D.), a case not unlike this where an application for permanent residence was returned because it was not accompanied by the proper processing fee. There, Heald D.J. allowed the application for judicial review of the subsequent decision of a visa officer who, as in this case, did not consider the date of receipt of the application for the first time as the lock-in date. I note, however, that no reference appears in that case to the Immigration Act Fees Regulations provision, relied upon by the Minister in this case, that specifies an application is not completed until the prescribed fees are paid (s. 2), a regulatory requirement applicable since January 1997. In my opinion, that requirement means that the applications received in April 1997 in this case were incomplete, the visa office was correct that they could not be assessed as received in April, and it was not precluded from returning the applications as it did. I am not persuaded, despite the decision in Xiao, that the later date of receipt of the applications, with full fees required, in September 1997, was not the lock in date for consideration of the applications in this case.
[13] In any event, with respect, I am not persuaded by the applicant"s arguments that the rejection of the original application was made erroneously. The required fees were not paid as required by the Immigration Act Fees Regulations . Where the fee for the principal applicants is submitted but fees for their dependent child are not, the applications for the family may well be considered incomplete. In Maharaj v. Canada (1995), 103 F.T.R. 205 at 211, Mr. Justice Teitelbaum wrote:
| It is clear from the Court of Appeal"s comments that the assessment date or "lock-in date" is the date of the application. The question becomes, what makes up an application, is it the application alone or is it the application together with payment or the requisite fee. In Yeung v. Canada (1992), 17 Imm.L.R. (2d) 191 (FCTD), it was held that the assessment date or lock-in date for determining the number of points to be awarded is the date of the original application and payment of the processing fee as opposed to the date the application was actually reviewed. |
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| In the case before me, the applicant attempted to make his payment together with his application, however his cheque was not accepted because it was not made out in the proper funds to the proper party. The cheque was returned to the applicant. He did nothing to pay the required processing fee until November 1993. The Immigration Act Fees Regulations state in Section 3(2): |
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| 3.(2) The fee prescribed in paragraph 1(b) of the schedule is payable, at the time an application for landing or an application for landing in Canada requiring a visa exemption is made, by an applicant who is not described in subsection (1). |
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| The applicant is not a person described in s. 3(1). Therefore, it would appear that the fee is required at the time an application for landing is filed for it to be "properly" filed. |
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| I must conclude that the applicant"s application could not be processed until it is perfected, that is to say, until such time as the required fee was paid. The required fee was paid in November 1993 and I am satisfied that November 1993 is the "lock-in" date. |
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[14] In Mou v. Canada (Minister of Citizenship and Immigration) (1997), 125 F.T.R. 203 at 208, Mr. Justice Lutfy considered the case of an applicant, a citizen of China, who applied for permanent residence for himself as principal applicant, and for his spouse and son as dependents, but not all the fees required for all the applicants were received. His Lordship said, in part:
| The Fees Regulations require that the processing fee and, more recently, the right of landing fee are payable at the time the application is made. Administrative efficiency may well dictate that all the fees for the principal applicant and the dependants be paid before the rights of them are locked-in. However, I have found no statutory or regulatory provision which clearly allows for this practice. It has not been necessary to address this issue definitively in this case. |
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That issue has been dealt with under the Fees Regulations which require that all fees for dependant applicants are to be paid with those of their principal applicants before the applications are considered complete. This case is covered under those regulations, but even if it were not, the same result, as a matter of administrative discretion, in my opinion, is open to the Minister and his officers.
[15] Turning to the consultant"s role in filing the fee, and noting that the rejection of the application in April/May 1997 is not here at issue, I agree with the respondent that the consultant"s error is not a ground to interfere with a visa officer"s decision. In Huynh v. Canada (Minister of Citizenship and Immigration) (1993), 65 F.T.R. 11, Mr. Justice Rothstein dismissed the implications of poor representation by counsel in immigration proceedings as a basis for judicial review. In my view, mistake by the applicants" consultant may give rise to a complaint by the applicant against that consultant, but it cannot be a ground for overturning a decision by the visa officer.
[16] With respect to the alleged fettering of discretion, with respect, the evidence simply does not support the applicants" contention that the officer in this instance did not independently review the application. The CAIPS notes indicate that the officer did not rely on the first visa officer"s determination. In this regard, the notes read:
| Discussed case with GJC. His notes above are clear than appln should be assessed under NOC. Re-checked with registry that applns with incorrect fees will be returned without date stamp and no lock-in date for such kind of applns. This appln submitted with correct fees on 22Sep97 after NOC implemented 5 mths. It should be assessed under NOC. |
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[17] Second, the mere involvement of the first visa officer in the process hardly amounts to a fettering of discretion. In Parmar v. Canada (Minister of Citizenship and Immigration) (1997), 139 F.T.R. 203, in somewhat different circumstances, I commented: "It cannot be assumed that administrative decision makers act inappropriately where they seek harmony in the exercise of discretion when discharging common administrative responsibilities". I do not consider the officer"s regard of the previous officer"s assessment as reliance upon extrinsic evidence. The officer, in making her decision, did not rely upon the assessment of her colleague. Moreover, it is not "extrinsic evidence" unknown to the applicants that fees were not received until September. The applications originally received were considered incomplete. They were not "locked-in" or ripe for consideration until September 1997, when the NOC classification system was in place.
[18] With regard to the exercise of positive discretion, I agree with the respondent that no reasons for the failure to exercise discretion were given in the CAIPS notes, and no reasons are required. In Channa v. Canada (Minister of Citizenship and Immigration) (1996), 124 F.T.R. 290 at 293, Madam Justice Simpson had this to say:
| Paragraph 13 of the Officer"s affidavit for this judicial review application indicates that she considered the exercise of positive discretion under s. 11(3)(a). Her affidavit simply states that the exercise of positive discretion was unwarranted. No reasons were given at any time. |
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| In circumstances where the statute only requires reasons when discretion is used, I am not prepared to conclude that reasons are also required when that discretion is not exercised. If that result had been intended, it would have been expressed in the statute. |
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Conclusion
[19] For the Reasons set out I conclude that this application for judicial review shall be dismissed. I am not persuaded that in the exercise of her discretion in the decision of November 4, 1997, the visa officer acted unfairly or unreasonably on the basis of the evidence before her.
[20] The respondent submits questions for certification under s-s. 83(1) of the Act but I am not persuaded that the questions are of general importance, except as confirming the exercise of discretion here at issue which is essentially an issue determinable on the facts of this case. No questions are certified under s-s. 83(1).
W. Andrew MacKay
Judge
Ottawa, Ontario
August 31, 1998
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