Ma v. Canada (Minister of citizenship and immigration), 2002 FCT 1303

Date: 20021217

Docket: IMM-2355-01

Neutral citation: 2002 FCT 1303

Ottawa, Ontario, Tuesday the 17^th day of December 2002

PRESENT:      The Honourable Madam Justice Dawson

BETWEEN:

                                                                      MAI HA

THA MAI HA

THIEN MAI HA

ARCHIEPISCOPAL CORPORATION OF WINNIPEG

                                                                                                                                          Applicants

                                                                        - and -

                      THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                       REASONS FOR ORDER AND ORDER

DAWSON J.

[1]                 The individual applicants ("applicants") are citizens of Cambodia who bring this application for judicial review of the decision of a visa officer at the Canadian High Commission in Singapore which denied their application for permanent residence in Canada as Convention refugees seeking resettlement in Canada.

FACTUAL BACKGROUND

[2]                 The applicants are sisters and range in age from 29 to 41 years of age. In 1975 they, together with their parents and three other siblings, were forced to flee to Vietnam to escape the Khmer Rouge in Cambodia. The applicants have lived in Vietnam ever since. Their parents and three siblings immigrated to Canada in 1986 and in 1994.

[3]                 On September 8, 1998, the applicants applied at the Canadian High Commission in Singapore for permanent residence in Canada as Convention refugees seeking resettlement. Their application was sponsored by the St. Ignatius Refugee Committee, which is associated with the Archiepiscopal Corporation of Winnipeg, the corporate applicant.

[4]                 Initially a letter dated August 24, 1999 was sent to the applicants refusing their application. The applicants then applied for judicial review of that decision, and on the consent of the Minister the application for judicial review was allowed. The applicants' file was then reassigned to the current visa officer. An interview was scheduled for February 28, 2001. In response to two letters from the applicants' counsel requesting that he be allowed to attend the interview, the visa officer replied in writing on February 8, 2001 to the effect that:

Please note that we do not allow lawyers or representatives to attend the interview. You may wait in the waiting room but you will not be allowed to attend the interview.

[5]                 The interview took place on February 28, 2001 in the absence of the applicants' lawyer. On March 9, 2001, the visa officer decided to refuse the application for permanent residence. In so concluding, the visa officer found that the applicants did not meet the definition of Convention refugees seeking resettlement because they had not demonstrated a well-founded fear of persecution. The visa officer further concluded, as written in the refusal letter, that "there is another "durable solution" as you have become permanently resettled in Vietnam".

[6]                 The decision of the visa officer is recorded in more detail in the Computer Assisted Immigration Processing System ("CAIPS") notes where the officer wrote with respect to Mai Ha:

APPLICANT DOES NOT MEET THE DEFINITION OF A CONVENTION REFUGEE AND ALTHOUGH SHE IS SPONSORED BY A GROUP THERE ARE NO GROUNDS TO APPROVE HER APPLICATION. I AM NOT SATISFIED THERE ARE HUMANITARIAN OR COMPASSIONATE FACTORS THAT WOULD WARRANT APPROVAL OF HER APPLICATION ON THOSE GROUNDS.

[7]                 The visa officer then referred the file to a program manager in order for the application to be reviewed for humanitarian and compassionate ("H & C") considerations. On March 28, 2001, the program manager confirmed the decision of the visa officer and determined that there were no humanitarian and compassionate factors warranting approval of the application. Refusal letters dated April 11, 2001 were sent to the applicants.

THE ISSUES

[8]                 In challenging the decision of the visa officer the applicants raise five issues:

1.          Did the visa officer err by not considering the compelling reasons exception?

2.          Was the visa officer's finding of a "durable solution" in Vietnam perverse and capricious?

3.          Did the visa officer breach the duty of fairness by improperly delegating the H & C decision to his program manager?

4.          Was the duty of fairness breached when counsel was not allowed to attend the interview? and

5.          Did the visa officer fetter his discretion by creating a rule that counsel cannot attend interviews?

ANALYSIS

(i) Did the visa officer err by not considering the compelling reasons exception?

[9]                 The Immigration Act, R.S.C. 1985, c. I-2 ("Act") in subsection 2(1) defined Convention refugee as:

[10]            Subsection 2(2) defined how cessation of refugee status occurred and was as follows:

[11]            There was an exception to the basis for cessation contained in paragraph 2(2)(e) of the Act, and that exception was found in subsection 2(3) of the Act which provided:

[12]            On the basis of this legislative scheme, once a decision-maker was satisfied that refugee status could not be claimed because of a change in country conditions within paragraph 2(2)(e) of the Act, the decision-maker was obliged to further consider the applicability of subsection 2(3) of the Act. (See: Yamba v. Canada (Minister of Citizenship and Immigration), (2000) 254 N.R. 388 (FCA)).

[13]            In the present case, the applicants provided evidence of compelling reasons on which they relied in order to invoke subsection 2(3) of the Act. However, the visa officer admitted on cross-examination and that he was "not really" familiar with the exception to the cessation clause and did not really consider it.

[14]            The Minister concedes that the visa officer erred by not considering the cessation clause and also by not further considering whether the compelling reasons exception applies. However, the Minister also says that the error is not material because the visa officer properly found that the applicants had the possibility of a "durable solution" so they did not fall within the definition of Convention refugee seeking resettlement.

[15]            This leads to consideration of the next asserted ground of error.

(ii) Was the visa officer's finding of a "durable solution" in Vietnam perverse and capricious?

[16]            In considering whether the applicants met the definition of Convention refugee seeking resettlement, the visa officer relied in large part upon the fact that the applicants could apply for citizenship in Vietnam. The officer therefore concluded that the applicants had the possibility of a "durable solution" available to them such that they were not within the definition of Convention refugee seeking resettlement.

[17]            The term "Convention refugee seeking resettlement" was defined in subsection 2(1) of the Immigration Regulations, 1978, SOR/78-172 ("Regulations"). The definition was:

[18]            The term "durable solution" contained in the definition was in turn defined in subsection 2(1) of the Regulations:

[19]            In order to interpret these provisions the applicants say regard should be made to Section E of Article 1 of the United Nations' Convention Relating to the Status of Refugees ("Convention"), referred to in the definition of Convention refuge. Section E of Article 1 provides:

[20]            The applicants say that in order for the Regulations to be consistent with the Convention and with the Act, "resettlement" as used in the Regulations in the definition of Convention refugee seeking resettlement must mean that the resettled person is recognized by the competent authorities of the country in which he or she has taken residence as having the rights and obligations which are attached to the possession of nationality of that country. If a person does not have those rights and obligations then he or she cannot, it is submitted, be considered to be resettled. The applicants therefore submit that the possibility of applying for Vietnamese citizenship would be legally relevant to the visa officer's refusal only if an application to the authorities of Vietnam for citizenship would result in the confirmation of a pre-existing status.

[21]            In the present case the applicants say that any application on their behalf for citizenship would not result in the confirmation of pre-existing status. In order to obtain Vietnamese citizenship more is required than simply filling out a form. The applicants say that five criteria must be fulfilled, three of which are discretionary in the eyes of the authorities. This is distinguishable from the situation considered by Mr. Justice Rothstein in Bouianova v. Canada (Minister of Employment and Immigration) (1993), 67 F.T.R. 74 (T.D.), where applying for Russian citizenship was a mere formality. In that case it therefore followed that the applicant could not deny having a country of nationality just because the applicant chose not to make an application for citizenship.

[22]            The Minister argues in response to this submission that resettlement for the purpose of "durable solution" does not require possession of the same degree of rights and obligations that a person must possess in order to be excluded pursuant to Article 1E of the Convention. The Minister says that provided there is some level of integration into the country of first asylum, and the person is not at risk, that person should be considered resettled for the purpose of having a "durable solution".

[23]            Neither counsel provided any case law in support of their respective submissions on this issue.

[24]            In my view, the plain meaning of the words used in the definition of a Convention refugee seeking resettlement does not support the applicants' interpretation. I so conclude because the definition of Convention refugee seeking resettlement, read with the definition of "durable solution", speaks of a person in respect of whom there is no possibility, within a reasonable period of time, of resettlement in the person's country of origin, or in a neighbouring country, or in the country of asylum. The phrase no possibility of resettlement connotes a much lower standard than words found in Article 1E of the Convention which contemplate the same rights as are attached to the possession of nationality. In that circumstance, I conclude that the regulatory definition cannot be read as requiring the same level of connection with the country of residence as does Article 1E.

[25]            While it is true that the "durable solution" exclusion in the Regulations does work to exclude refugee claimants from Canada on the basis that they have protection elsewhere, I accept the submission of the Minister that a crucial difference exists between the two exclusionary provisions.

[26]            That difference flows from the fact that Article 1E of the Convention is applied to those who are in Canada. Canada, as a signatory to the Convention, has an obligation to provide the protection of the Convention to persons within its territory. The high standard for exclusion found in Article 1E of the Convention reflects the fact that where a person is excluded from the application of the Convention, the person becomes subject to deportation to the country in which he or she possesses the rights of nationality.

[27]            In contrast, the definition of Convention refugee seeking resettlement applies to a person seeking admission from outside of Canada who is in a country of refuge. Canada has no obligation at law to resettle refugees from abroad. This is reflected in the Resettlement Handbook, published by the United Nations High Commissioner for Refugees where on page 3 of chapter 1 it is observed that:

No country is legally obliged to resettle refugees. Only a small number of States do so on a regular basis; allocating budgets, devising programmes and providing annual resettlement targets. Some countries regularly accept refugees for resettlement, sometimes in relatively large numbers, but do not set annual targets. Accepting refugees for resettlement is a mark of true generosity on the part of Governments and UNHCR welcomes the opportunities that continue to be offered by States for the resettlement of refugees.

[28]            In this context, I conclude that resettlement for the purpose of a "durable solution" does not require the person seeking resettlement to possess the same level of rights and obligations that a person must possess in order to be excluded pursuant to Article 1E of the Convention.

[29]            It follows from this conclusion that the visa officer did not err in law by considering the fact that the applicants are entitled to apply for citizenship in Vietnam. Nor, as a matter of law, is it necessary that the application for Vietnamese citizenship would result in the confirmation of a pre-existing status in order for an applicant to have a possibility, within a reasonable period of time, of a "durable solution".

[30]            The applicants also argue that the decision that there was a "durable solution" was, on the evidence, perverse and capricious.

[31]            In their application for permanent resident status, the applicants stated that they lived in a refugee camp which included only two families. The security was said to be poor so the applicants were afraid to live alone. The applicants stated:

Since 1994 we do not have any support from UNHCR (United Nations High Commission for Refugees). Our present living is very difficult. In Vietnam, we can't work or resident [sic] at any place of [sic] Vietnam except the Camp 979A Song Be, Vietnam. We only have casual work in the camp, which is not enough to support our living. Also, we don't have any right in this country such as: no right to vote, no right to travel anywhere and no right to open business as Vietnamese. If we want to travel anywhere in Vietnam, there will be a lot of complicated paper work to do to apply for it. The reason is we are just refugees in Vietnam.

[32]            In rejecting their application, the visa officer concluded that the applicants were locally integrated and so had become permanently resettled in Vietnam. To so conclude the visa officer relied particularly upon the facts that the applicants were no longer living in a refugee camp, but had rented a house in Ho Chi Minh City where they worked as tailors. The officer therefore noted in the CAIPS notes that the applicants were free to live and work in Vietnam.

[33]            With respect to the visa officer's conclusion that the applicants were free to live and work in Vietnam, on cross-examination the officer responded as follows:

48.            Q              Did you have any knowledge whether they were in Ho Chi Minh City legally or                                  illegally?

A              What you mean by "legally or illegally"?

49.            Q              Well, legally means in conformity with Vietnamese law.

A              I did not raise that question, that issue. But what I know is that they rent an apartment in Ho Chi Minh.

50.            Q              Are you familiar with the system of residence control in Vietnam?

A              Not very much.

51.            Q              Have you heard of it?

A              Is it the household registry system? Yes.

[34]            The visa officer also relied upon the fact that the applicants were eligible to apply for citizenship in Vietnam. With respect to that right, the visa officer stated in his affidavit in opposition to this application that during each interview he put the citizenship legislation to each applicant who, the officer concluded, did not raise any doubts as to their eligibility under the law. However, the CAIPS notes prepared by the officer record that Mai Ha told the officer that other people had tried but could not obtain citizenship in Vietnam. Thien Mai Ha also told the officer that other people had tried to obtain citizenship but that the "government does not allow".

[35]            In order to assess the reasonableness of the visa officer's decision that the applicants were locally integrated it is relevant to consider the purpose of resettlement in the context of refugee protection.

[36]            Chapter OP 4 of the Overseas Selection and Processing of Convention Refugees Seeking Resettlement and Members of the Humanitarian Designated Classes ("OP 4") in effect at the material time, outlined Canada's refugee policy and provided guidelines for processing applications from Convention refugees seeking resettlement. The chapter instructed that:

Resettlement is both an instrument of protection and one of the three durable solutions to refugee situations. The other durable solutions are repatriation and local integration in a country of first asylum.

[...]

Resettlement forms a durable solution for persons who may have extreme difficulty in integrating locally in the country of first asylum, and who cannot return to their country of citizenship or habitual residence.

[...]

To be eligible for resettlement in Canada a person who meets the Convention refugee definition:

·                 must be outside Canada,

·                 is not likely to repatriate voluntarily in the near future,

·                 is not locally integrated in the country of asylum, and

·                 does not have another offer of resettlement.

[37]            In the present case, there was no suggestion of either voluntary repatriation or another offer of resettlement, so the issue was whether the applicants were locally integrated into the country of asylum.

[38]            As to what constitutes local integration, OP 4 instructed visa officers that:

The factors to consider when deciding if an applicant is not locally integrated include whether:

·                 formal asylum has been granted;

·                 there is a risk of refoulement;

·                 the applicant can seek and accept employment;

·                 the applicant's children can attend school;

·                 the applicant can return to the country or territory of asylum; or

·                 the applicant can acquire permanent residence or citizenship in the future.

[39]            Given the importance placed on compliance by Minister's delegates with ministerial guidelines, as explained by the Supreme Court of Canada in 2002 SCC 1">Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1 at paragraph 36, those are factors which were relevant for the visa officer to consider in the specific context of answering the question whether there was no possibility, within a reasonable period of time, that the applicants would become locally integrated.

[40]            The evidence before the visa officer was as follows. The applicants had been in Vietnam since 1975. They had, at least, a right to apply for Vietnamese citizenship, but the visa officer had no idea what the outcome of what such application might be and the applicants expressed the view that any application would not be successful. They had not applied. The applicants had rented a house in Ho Chi Minh City, where they were living and they were working in Ho Chi Minh City as tailors. The officer was aware that there was a system of residence control in Vietnam, but made no inquiry as to whether the living arrangements were in accord with the system of residence control. There was no suggestion of a risk of refoulement.

[41]            Reviewing the decision of the visa officer against the factors he was obliged to consider and the evidence before the officer, I am satisfied that the officer considered relevant criteria and did not consider irrelevant matters. On the unqualified statements made by the applicants to the officer that they were now living and working in Ho Chi Minh City, I am unable to conclude that the officer's decision that the applicants were locally integrated was either patently unreasonable or clearly wrong. Because the decision, in my view, withstands scrutiny against both the standard of patent unreasonableness and reasonableness simpliciter, it is not necessary for me to determine with more precision which standard of review is applicable.

[42]            On the applicants' behalf it is argued that in considering whether there is "no possibility, within a reasonable period of time, of a durable solution" one must consider the length of time the applicants had been in Vietnam. In the present case, it is said that even if the applicants were resettled tomorrow it would not be within a reasonable period of time.

[43]            In response, the Minister argues that a visa officer is to apply an applicant's situation to the legislation at the time the decision is made. In the present case, at the time the decision was made the officer found the applicants to be locally integrated and this was sufficient. I agree.

[44]            The definition of Convention refugee seeking resettlement speaks to a case where there is "no possibility" of resettlement within a reasonable period of time. This, in my view, indicates the forward-looking nature of the test. If one is resettled, no matter how long one took to achieve that status, it cannot be said that there is no possibility of resettlement.

[45]            It is also argued on the applicants' behalf that it is perverse and capricious to conclude that the applicants could move and work within Vietnam when the visa officer knew that there were relevant laws, but made no inquiries about the application of those laws to the applicants.

[46]            However, again I accept the submission of the Minister that the onus was on the applicants to present all of the relevant facts to the visa officer. Given that the applicants were no longer living in a refugee camp, it is reasonable that they bore the onus of explaining to the officer anything which rendered precarious their then current status of living and working in Ho Chi Minh City.

(iii) Did the visa officer breach the duty of fairness by improperly delegating the        H & C decision to his program manager?

[47]            The nub of the applicants' argument is that it is the visa officer who should have considered their application on H & C grounds, and that as the Minister's delegate the visa officer could not sub-delegate that power to the Program Manager. This argument is based upon the following analysis of the Act.

[48]            Subsection 114(2) of the Act was as follows:

[49]            Section 37 of the Act provided:

[50]            Consolidated Instrument of Delegation One, Immigration Manual IL3 delegated to the officer level in Canada and the managerial level abroad the authority vested in the Minister pursuant to section 2.1 of the Regulations.

[51]            It is argued that both paragraph 37(1)(a) and subsection 114(2) of the Act were part of the Act when the original legislation came into force in 1978. Section 2.1 of the Regulations was then enacted in 1993 and it is said to have blurred the distinction between subsection 114(2) and section 37 of the Act. Section 2.1 of the Regulations expanded the powers of the Minister, allowing him or her to decide to admit an inadmissible person into Canada on a temporary (subsection 37(1)) or permanent (subsection 114(2)) basis.

[52]            The relevance of this is said to be that a person who applied at a visa post abroad, but who was inadmissible due to a failure to meet the requirements of the Act or Regulations required of all immigrants, might have been allowed into the country under subsection 37(1) or subsection 114(2) of the Act by a senior immigration officer. A visa officer did not have power to admit such an immigrant. However, if an immigrant met all of the general requirements of the Act, but fitted within none of the programs which allowed for admission into Canada, the visa officer was said to retain a residual discretion to admit the immigrant on H & C grounds. There must, it is argued, have been a failure to meet a general requirement of the Act before a senior immigration officer had jurisdiction to make a decision on H & C grounds.

[53]            Therefore, on the applicants' behalf it is said that it is the visa officer who had the residual discretion to admit persons, including the applicants, on humanitarian grounds, not the Minister or his delegate.

[54]            In order to argue that the applicants did not fail to meet a general requirement of the Act and Regulations, they say that the requirements of programs in the Regulations were not requirements imposed on every immigrant. Thus, while section 14 of the Regulations imposed a requirement on every immigrant in respect of passports and travel documents, section 7 of the Regulations relating to Convention refugees seeking resettlement did not apply to every immigrant.

[55]            The residual nature of the visa officer's discretion is said to have been reflected in subsection 9(4) of the Act which contained the only authority in the Act for the issuance of a visa. Subsection 9(4) stated:

[56]            Thus, it is argued that a visa officer had two decisions to make when considering an application. The first was whether the applicant met the requirements under the Act and the Regulations. The second was whether the visa officer would exercise his or her discretion to issue a visa. Meeting the requirements of the Act and Regulations is said not to have entitled a person to entry. Rather, meeting those requirements met a threshold, making the person eligible to enter. Whether or not an immigrant was allowed entry depended on how the discretion of the visa officer was exercised.

[57]            While the discretion of the visa officer was guided by the Regulations, the criteria in the Regulations are said not to have exhausted the discretion of a visa officer. Otherwise, the applicants argue, if the discretion of the visa officer was limited to granting visas to those persons who fit within the regulatory programs, then the officer's discretion would be improperly fettered. Therefore, even if a person fit within none of the programs set out in the Regulations, an applicant might still have been admitted to Canada depending upon the discretion of a visa officer. One basis for the exercise of this residual discretion, in line with the purposes and principles of the Act, is said to have been entry on H & C grounds.

[58]            In order to consider the applicants' argument it is necessary to consider the whole of the relevant legislative scheme contained in the Act and Regulations. Subsections 9(1), 9(2) and 9(4) of the Act together provided:

[59]            The effect of those provisions was that a person outside Canada who wished to become a permanent resident of Canada must have applied for an immigrant visa before arriving at port of entry. Each application was then reviewed by a visa officer for the purpose of determining if the person was entitled to an immigrant visa. Where a visa officer was satisfied that it would not be contrary to the Act or Regulations to grant landing, the visa officer might issue a visa to identify the holder of the visa as a person who appeared to meet the requirements of the Act and the Regulations.

[60]            Turning to the exercise of the discretion conferred by subsection 9(4) of the Act, the nature of that exercise was considered by the Federal Court of Appeal in Rajadurai v. Canada (Minister of Citizenship and Immigration) (2000), 266 N.R. 119 (F.C.A.). Madam Justice Sharlow wrote as follows at paragraphs 18 to 25:

18             A visa officer performing the task required by subsection 9(4) must first assess the applicant's qualifications. In most instances, the applicant must meet the selection criteria for immigrants as set out in the Immigration Regulations, 1978. The selection criteria are intended to determine whether or not and the degree to which the immigrant will be able to become successfully established in Canada. Selection is made by awarding points for a number of factors. A person who meets the definition of "assisted relative", as these two appellants did, would meet the selection criteria if they achieved 65 points. That is 5 points less than the number of points required by a person who is not an assisted relative.

19             In a separate but related enquiry, the visa officer must determine whether the applicant falls into one of the classes of persons who must be denied admission. There are two categories of inadmissible persons, those listed in subsection 19(1) of the Immigration Act, who are simply inadmissible to Canada, and those listed in subsection 19(2) who are generally inadmissible but may in certain circumstances be permitted to come to Canada for a period not exceeding 30 days.

20             The list of inadmissible classes in subsection 19(1) includes persons who suffer from certain impairments to their physical or mental health, who are unable or unwilling to support themselves, who have committed certain kinds of criminal offences, who are members of certain criminal organizations, or who pose certain security risks. There is no suggestion that either appellant is inadmissible under subsection 19(1).

21             The list of inadmissible classes in subsection 19(2) includes persons with less serious criminal records. It also includes a catch-all category in paragraph 19(2)(d):

(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:

...

(d)            persons who cannot or do not fulfil or comply with any of the conditions or requirements of this Act or the regulations or any orders or directions lawfully made or given under this Act or the regulations.

* * *

(2)            Appartiennent à une catégorie non admissible les immigrants et, sous réserve du paragraphe (3), les visiteurs qui :

...

(d)            soit ne se conforment pas aux conditions prévues à la présente loi et à ses règlements ou aux mesures ou instructions qui en procèdent, soit ne peuvent le faire.

22             Thus, for example, a person who fails to meet the selection criteria could, for that reason, be a member of an inadmissible class pursuant to paragraph 19(2)(d). However, that is not an inevitable conclusion. A person who does not meet the selection criteria may request relief under subsection 114(2), which reads as follows:

114(2)      The Governor in Council may, by regulation, authorize the Minister to exempt any person from any regulation made under subsection (1) or otherwise facilitate the admission of any person where the Minister is satisfied that the person should be exempted from that regulation or that the person's admission should be facilitated owing to the existence of compassionate or humanitarian considerations.

* * *

114(2)      Le gouverneur en conseil peut, par règlement, autoriser le ministre à accorder, pour des raisons d'ordre humanitaire, une dispense d'application d'un règlement pris aux termes du paragraphe (1) ou à faciliter l'admission de toute autre manière.

23             This provision is given effect in Regulation 2.1, which reads as follows:

2.1 The Minister is hereby authorized to exempt any person from any regulation made under subsection 114(1) of the Act or otherwise facilitate the admission to Canada of any person where the Minister is satisfied that the person should be exempted from that regulation or that the person's admission should be facilitated owing to the existence of compassionate or humanitarian considerations.

* * *

2.1 Le ministre est autorisé à accorder, pour des raisons d'ordre humanitaire, une dispense d'application d'un règlement pris aux termes du paragraphe 114(1) de la Loi ou à faciliter l'admission au Canada de toute autre manière.

24             In this case, a positive decision under subsection 114(2) would have relieved the appellants of the requirement to meet the selection criteria. In effect, the selection criteria would have been waived for the appellants. That would remove them from the class of inadmissible persons under subsection 19(2)(b).

25             The Minister's authority under subsection 114(2) may be delegated to others. In this case, the program manager in the office of the Canadian High Commission in Colombo, Sri Lanka was an authorized delegate of the Minister for purposes of subsection 114(2). [underlining added]

[61]            While Madam Justice Sharlow was in dissent in Rajadurai, I do not read the reasons of the majority to differ with respect to this portion of Justice Sharlow's analysis.

[62]            The submission advanced on the applicants' behalf depends upon the conclusion that the requirements set out in section 7 of the Regulations relating to Convention refugees seeking resettlement were not admission requirements within the contemplation of paragraph 19(2)(d) of the Act. However, in my view, the scheme of the Act and the Regulations set out above does not support that characterization for the following reasons.

[63]            First, in my view, the plain meaning of the words used in the Regulations did not and does not support the distinction which the applicants seek to be drawn. The selection criterion to be applied by the visa officer when exercising discretion under subsection 9(4) of the Act was whether it would be contrary to the Act or Regulations to grant landing entry. Subsection 7(1) of the Regulations stated:

Those requirements on their wording must be viewed to be admission requirements of the Regulations.

[64]            Second, in Rajadurai, supra, the Court of Appeal had before it the factual situation where an applicant had failed to receive sufficient units of assessment to qualify for landing in the assisted relative category and had sought H & C consideration. In considering the consequence of the failure to obtain sufficient units, Mr. Justice Stone, for the majority, wrote at paragraph 7:

The visa officer had to determine whether each of the appellants should be awarded a sufficient number of units of assessment as to bring themselves within the Assisted Relative category. That is all the visa officer was authorized to determine. Because the visa officer decided to award each of the appellants an insufficient number of units of assessment they became ineligible for admission within that category, and paragraph 19(2)(d) of the Act then rendered them inadmissible to Canada. [underlining added]

[65]            Mr. Justice Stone went on to state in the next paragraph:

8              [...] the visa officer's decision had to be made some time before the Program Manager was called upon to make his decision of whether humanitarian and compassionate grounds existed. If the visa officer had awarded a sufficient number of units of assessment the appellants would have been issued a visa for landing in Canada. It was only because the visa officer awarded too few units of assessment that the appellants became inadmissible. Before that decision was made the Program Manager had no role to play under the Act and the Regulations. The question that came before him was whether to except both of the appellants from the Regulations notwithstanding their inadmissibility as found by the visa officer and as provided in paragraph 19(2)(d) of the Act. [underlining added]

[66]            Thus, the majority of the Court of Appeal held that the failure to obtain the required number of units was a failure to comply with a condition or requirement of the Regulations resulting in inadmissibility. In my view, on similar reasoning the failure to meet the requirements of subsection 7(1) of the Regulations carries a similar consequence of inadmissibility.

[67]            The applicants seek to distinguish Rajadurai on the basis that in that case the applicant had specifically applied for consideration under subsection 114(1) of the Act, and had not applied to the residual discretion of the visa officer. However, even if a distinction exists on that basis, in my view it does not impact on the Court of Appeal's conclusion as to the legal consequence of the failure to obtain sufficient units of assessment.

[68]            Third, the consequence of the applicants' submission is that a visa officer would have discretion under subsection 9(4) of the Act to issue a visa to anyone, provided that the person was not inadmissible under those portions of section 19 of the Act and Regulations which apply to every immigrant (for example, the requirements with respect to criminality and medical condition). It is the submission of the Minister that this would render the process completely subjective, non-transparent and entirely at the whim of the visa officer. I agree. Such result does not, in my view, accord with a purposive interpretation of the Act and Regulations.

[69]            From the conclusion that it is a requirement of paragraph 19(2)(d) of the Act that the applicants meet the requirements of subsection 7(1) of the Regulations, it follows that the applicants were inadmissible and may only have been granted entry following the positive exercise of discretion under subsection 114(2) of the Act and section 2.1 of the Regulations. The applicants' application was properly referred to the Program Manager for consideration on this basis.

[70]            In the written submissions filed on the applicants' behalf it was also argued that the program manager breached the duty of fairness by failing to give reasons for his decision. However, this application for judicial review only put in issue the decision of the visa officer. In an interlocutory order the Associate Senior Prothonotary ruled that the applicants were prohibited from challenging the program manager's decision. I have therefore not considered the issue of the adequacy of the program manager's reasons.

(iv) Was the duty of fairness breached when counsel was not allowed to attend the interview with the visa officer?

[71]            The applicants submit that while an applicant has no right to be interviewed by a visa officer, once an interview is convoked and counsel is not allowed to attend, a strong impression of unfairness is left. Moreover, the legal right at issue (the right of a Convention refugee to obtain permanent residence in Canada if the requirements of the Act and Regulations are met) and the severe hardship imposed if an application for landing based on hardship and family reunification is refused, are said to result in the duty of fairness requiring the right of counsel to attend at the interview and to make submissions. Allowing counsel to attend would, it is said, ensure that relevant information is elicited. This is said to be particularly important because an officer is not expected at an interview to delve into areas not presented by an applicant. It is also argued that in this case the presence of counsel may well have assisted the officer to understand properly the cessation clause and its application.

[72]            To consider these submissions it is important to recall that the content of the duty of fairness is not absolute, but is variable. The content of the duty of fairness in any particular case is to be determined by considering all of the circumstances, including the following factors:

1.          The nature of the decision being made and the process followed in making it;

2.          The nature of the statutory scheme and the terms of the statute pursuant to which the decision-maker operates;

3.          The importance of the decision to the individual or individuals affected;

4.          The legitimate expectations of the person challenging the decision; and

5.          The choices of procedure made by the agency itself.

[73]            Underlying all of those factors is the concept that the purpose of the participatory rights contained within the duty of fairness is to ensure that administrative decisions are made pursuant to a fair and open procedure, appropriate to the decision being made and its context. An opportunity must be provided to those affected by a decision to put forward their evidence and submissions fully, and to have them considered by the decision-maker.

[74]            Turning to the first factor listed above, the nature of the decision being made is administrative, involving the exercise of considerable discretion. As for the process to be followed, an applicant bears the onus of establishing his or her eligibility under the Act and the Regulations. Applications are to be made in writing and may be granted or refused without an interview. If an interview is granted, it is for the purpose of obtaining further information from an applicant. I conclude that neither the nature of the decision being made, nor the process followed, resemble judicial decision making which would require procedural protections closer to those of the judicial model.

[75]            Dealing with the nature of the statutory scheme and the terms of the legislation, there is no right under the Act to obtain permanent residence in Canada. See: Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711 at page 733. Under the Act, as it then was, the decision of a visa officer was reviewable on judicial review without leave. Those considerations in my view do not support an enhanced content of the duty of fairness.

[76]            The third factor is the importance of the decision. While, on a subjective basis, the decision is of great significance to an applicant, on an objective basis a negative decision does not deprive an applicant of any right or benefit. This factor, therefore, does not support enlargement of the content of the duty of fairness.

[77]            Turning to the fourth factor, the applicants do not allege that they had a legitimate expectation that counsel would be permitted to attend their interview.

[78]            Finally, as to the choice of procedure made by the Minister, the Minister in Operations Memoranda entitled "Interaction with Practitioners (Lawyers and Consultants)" expressed the policy that:

·                 The general approach is to limit attendance at interviews to the individual applicants and visa officers should follow this approach which appears to be supported by case law in the Federal Court. The doctrine of fairness does not require that counsel be present at interviews nor does the Immigration Act provide for the right to counsel in this context.

[79]            The Deputy Director and Senior Policy Advisor in the Resettlement Division, Refugee Branch, Citizenship and Immigration Canada swore in an affidavit filed in opposition to this proceeding that:

33.            CIC's view is that permitting counsel to attend interviews would have detrimental effects on CIC's ability to manage the Refugee and Humanitarian Resettlement Program, including the introduction of an inappropriate adversarial and formal quality to the process, delays and increased costs. Each of these effects is incompatible with the overall purpose and objective of the program.

[80]            In Baker, supra, at paragraph 27, the Supreme Court of Canada observed that the choices of procedure made by an agency are entitled to some respect, particularly where a statute allows a decision-maker to choose its own procedure.

[81]            After assessing these five factors, I conclude that together they do not support the applicants' assertion that the duty of fairness requires a visa officer to allow counsel to attend at the interview of an applicant who is seeking admission to Canada as a Convention refugee seeking resettlement.

[82]            This conclusion is also supported by the fact that viewing the circumstances as a whole, counsel is allowed to make submissions in writing to the visa officer. The matters a visa officer will inquire into at an interview will be matters about an applicant that will be within the applicant's knowledge and ability to answer. That process, in my view, provides the necessary, meaningful opportunity for an applicant to put forward his or her views and evidence for consideration by the visa officer. That ability to meaningfully participate in the decision-making process is what is required by the duty of fairness.

[83]            I am also mindful of the admonition of the Court of Appeal in Khan v. Canada (Minister of Citizenship and Immigration), 2001 FCA 345 that the Court must guard against imposing a level of procedural formality that would unduly encumber the efficient administration of the volume of applications which visa officers must process. As stated by the Court of Appeal, at paragraph 32, "[t]he public interest in containing administrative costs and in not hindering expeditious decision making must be weighed against the benefits of participation in the process by the person directly affected".

(v) Did the visa officer fetter his discretion by creating a rule that counsel cannot attend interviews?

[84]            Finally, the applicants argue that the Minister created a rule that counsel cannot attend interviews at visa posts abroad, which rule amounts to an unlawful fettering of the visa officer's discretion. The applicants point to the language used by the officer in his communication of February 8, 2001 that "we do not allow lawyers or representatives to attend the interview".

[85]            In considering this argument, I begin from the premise that as a general rule a decision-maker is free to control its own procedures, so long as it complies with the duty of fairness and any applicable statutory or regulatory provisions. See: Prassad v. Canada (Minister of Employment and Immigration), [1989] 1 S.C.R. 560 at pages 568- 569.

[86]            Further, I agree with the observation of Mr. Justice Nadon, then of this division of the Federal Court, in Voskanova v. Canada (Minister of Citizenship and Immigration) (1999), 167 F.T.R. 258 where at paragraph 12 of his decision he stated that:

There cannot be any doubt that administrative decision makers may, as a matter of sound administrative practice, and without any specific statutory authority for doing so, issue guidelines and other non-binding instruments.

[87]            It follows that there was nothing per se improper with the general approach or guideline contained in the Operations Memoranda quoted above to not permit counsel to attend at interviews conducted by visa officers.

[88]            Notwithstanding this guideline, it remains that the visa officer was obliged to properly consider counsel's request to attend the interview. The Minister concedes that as a matter of law the visa officer would improperly fetter his discretion if he blindly applied the guideline without considering the specific facts of this case, and in effect treated it as a rule prohibiting the attendance of counsel.

[89]            Turning to the evidence on this point, on February 8, 2001 the terse entry made in the CAIPS notes by the visa officer with respect to the application of Thien Mai Ha concerning this decision was "handwritten reply prepared - representatives/lawyers are not allowed to attend the I/V". In the visa officer's affidavit sworn in opposition to this proceeding he swore that:

6.              On November 19, 2000 and February 7, 2001, we received letters from the Applicant's counsel indicating his intention to attend the Applicant's interviews. I considered that these are the Applicants' interviews and I will be listening to their story, and not their lawyer's story. I further considered that the Applicants do not need a lawyer in order to tell me their story. In light of these considerations, coupled with the fact that the office has a written policy as to the presence of counsel at interviews, I replied back to the Applicants' counsel that we do not allow lawyers or representatives to attend the interview.

[90]            While the language of the CAIPS notes and the February 8 response are consistent with an unthinking, fettered adherence to a general policy, the visa officer was not cross-examined upon his evidence that he did consider the circumstances of this case before deciding not to allow counsel to attend the interview. On the basis that the visa officer's sworn evidence directly on the point was not challenged, I am not persuaded that the officer fettered his discretion as alleged.

[91]            I have also considered the submission of the applicants that the visa officer's evidence as to the factors he considered was generic. However, counsel's correspondence with respect to his proposed attendance at the interview was similarly generic. Counsel simply wrote "[t]he sisters, through their family in Canada, have instructed me to attend with them at their reinterview to assist them in the presentation of their refugee claims to the visa office[r]. Could you please inform me of the time and place of the reinterview so that I [can] attend." Counsel made none of the points to the visa officer which were argued to the Court as to why counsel's presence was warranted on the specific facts of this case.

CONCLUSION

[92]            While the Minister conceded that the visa officer erred in his consideration of the cessation clause and the compelling reasons exception, in view of the visa officer's finding of a "durable solution" and my conclusion that no reviewable error was made by the officer in coming to that finding, I find that the error was not material to the officer's decision.

[93]            It follows from my disposition of the other grounds of error asserted by the applicants that the application for judicial review will be dismissed.

[94]            Counsel for the applicants posed four questions for certification, and counsel for the Minister consented to certification of two of the four questions. The two questions which the Minister agreed should be certified are as follows:

1.              Is the duty of fairness breached when a visa officer refuses to allow counsel to attend at the interview of an applicant seeking admission to Canada as a Convention refugee seeking resettlement?

2.              Does the phrase "no possibility, within a reasonable period of time, of a durable solution" in the Immigration Regulation 2(1) definition for "Convention refugee seeking resettlement" mean a reasonable possibility or a possibility that is lower than reasonable?

[95]            I am satisfied that the issue raised by the first question warrants certification, and an order will issue certifying that question. This is sufficient to enable the Court of Appeal to consider all of the issues raised by the appeal. See: Baker, supra, at paragraph 12.

[96]            I find the wording of the second question problematic. In view of the continued use of the terms "durable solution" and "resettlement" in paragraph 139(1)(d) of the Immigration and Refugee Protection Regulations, SOR/2002-227, I certify the following question:

What legal rights or obligations must a Convention refugee possess outside of Canada in order to be considered re-settled so as to have a "durable solution"?

ORDER

[97]            IT IS HEREBY ORDERED THAT:

1.          The application for judicial review is dismissed.

2.          The following questions are certified:

1.          Is the duty of fairness breached when a visa officer refuses to allow counsel to attend at the interview of an applicant seeking admission to Canada as a Convention refugee seeking resettlement?

2.          What legal rights or obligations must a Convention refugee possess outside of Canada in order to be considered re-settled so as to have a "durable solution"?

"Eleanor R. Dawson"

_________________________________

Judge                        

                                                FEDERAL COURT OF CANADA

                                                             TRIAL DIVISION

                   NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD

COURT FILE NO.:                   IMM-2355-01

STYLE OF CAUSE:                  Mai Ha, Tha Mai Ha, Thien Mai Ha, Archiepiscopal              Corporation of Winnipeg v. M.C.I.

PLACE OF HEARING:            Winnipeg, Manitoba

DATE OF HEARING: June 27, 2002

REASONS FOR ORDER AND ORDER

OF THE HONOURABLE MADAM JUSTICE DAWSON

DATED:                                      December 17, 2002

APPEARANCES:

Mr. David Matas                                                  FOR THE APPLICANTS

Ms. Sharlene Telles-Langdon                  FOR THE RESPONDENT

SOLICITORS ON THE RECORD:

Mr. David Matas                                                  FOR THE APPLICANTS

Winnipeg, Manitoba

Mr. Morris Rosenberg                           FOR THE RESPONDENT

Deputy Attorney General of Canada