Date: 19990818
Docket: IMM-516-98
BETWEEN:
HAT HO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
SHARLOW J.
[1] The applicant Hat Ho is an elderly woman from Hong Kong. In 1997 she was living with her son in Hong Kong. At that time she was eighty-one years old. The rest of their family had previously moved, some to France and others to Canada. When her son applied for permanent residence in Canada, they wished to come together.
[2] It was recognized that Ms. Ho could not qualify for permanent residence on her own or on the basis of her son's sponsorship. She submitted an independent application for permanent residence but included a request (referred to as an "H & C application") that she be relieved of the obligation to comply with the normal selection criteria, based on humanitarian and compassionate grounds. The statutory authority for such an exception is found in subsection 114(2) of the Immigration Act.
[3] Ms. Ho was interviewed on January 6, 1998 by a visa officer in Hong Kong. He considered her application for permanent residence. He confirmed that Ms. Ho did not qualify for permanent residence, and so could not be granted a visa unless her H & C application was granted. It is undisputed that the visa officer did not have the authority to grant her H & C application, and that the program manager in Hong Kong did.
[4] By letter dated January 12, 1998 and signed by the visa officer, Ms. Ho was told that her application for a visa was denied, and that her H & C application had been considered by the program manager and denied.
[5] This application was framed as a challenge to a decision of the visa officer, and thus was commenced without leave being sought or granted. The decision was challenged on several grounds. One is that the visa officer exceeded his authority in purporting to make a decision on Ms. Ho's H & C application.
[6] It is the Respondent's position that the H & C decision was made by the program manager in Hong Kong. He is empowered to make such decisions as a delegate of the Minister. There is authority for the proposition that an application for judicial review of a decision of the Minister's delegate under subsection 114(2) requires leave, even if the relief relates to selection criteria that are within the jurisdiction of a visa officer: Rajadurai v. Canada (Minister of Citizenship & Immigration) (March 30, 1999), IMM-4014-98, IMM-4402-98.1 That issue is now before the Federal Court of Appeal on the basis of a certified question in that case.
[7] Given the factual dispute as to who made the H & C decision in this case, counsel for the Respondent suggested that rather than dismiss the application for want of leave, and invite a new application for an extension of time and for leave to commence an application for judicial review, it would be open to me to grant an extension of time and grant leave, so that the matter could be heard on the merits. He indicated that the Respondent would consent to that.
[8] Counsel for the applicant agreed that such an order would not prejudice the applicant because it would not preclude argument on any of the issues raised in the application. I indicated that I would grant such an order if I determined on the facts that the decision in question was made by the Minister's delegate.
Who made the decision?
[9] The first issue to be determined is whether the decision to deny Ms. Ho's H & C application was made by the visa officer or the program manager. If it was made by the visa officer, the decision is unauthorized and this application should be allowed.
[10] The H & C decision was based on documents submitted on behalf of Ms. Ho with her application, and an interview with the visa officer on January 6, 1998. While there is some dispute as to the object of the interview, I find that it was intended to elicit information about the selection criteria applicable to Ms. Ho, as well as her H & C application.
[11] The evidence in this application relating to the making of the H & C decision consists of notes made by the visa officer at the time of the interview, the refusal letter dated January 12, 1998, an affidavit of the visa officer dated April 20, 1998, an affidavit of the program manager dated April 23, 1998, and transcripts of the cross examinations on both affidavits, completed July 2, 1998.
[12] The visa officer's notes of the January 6, 1998 interview conclude with these words:
| PI COUNSELLED THAT HER REQUEST FOR H AND C WOULD NOT BE SUPPORTED. COUNSELLED FURTHER THAT SHE MAY BE SPONSORED IN FUTURE BY HER SON ONCE HE HAD LANDED AND ESTABLISHED WELL ENOUGH TO MEET LICO FOR SPONSORSHIP. MOA2 - GRATEFUL YOUR REVIEW OF ABOVE DECISION NOT/NOT TO SUPPORT REQUEST FOR H AND C. YOUR COMMENTS OR CONCURRENCE. |
[13] Counsel for the applicant argued that these words indicate that on January 6, 1998 the visa officer was making the H & C decision and inviting the program manager to rubber stamp it.
[14] The affidavit of the visa officer indicates that the file containing the visa officer's notes, as well as Ms. Ho's application and supporting documents, was transferred to the program manager on January 6, 1998 and it was the program manager who decided, on the same date, that the H & C application would not be granted. The affidavit of the program manager says that it was he who made the decision, on January 6, 1998, on the basis of his review of the file, although he says that the visa officer made a negative recommendation. The decision letter dated January 12, 1998 also indicates that the H & C decision was made by the program manager, not the visa officer.
[15] It is argued for Ms. Ho that the visa officer's notes are not consistent with his affidavit, and that I should prefer the notes as being more likely to be accurate because they were prepared at or around the same time as the interview. The affidavits were prepared some three months later, after this application was filed, so there might have been some temptation to use the affidavits to provide ex post facto justifications that otherwise do not appear on the record. (I note, however, that no questions about any alleged inconsistencies were put to the visa officer or the program manager in cross-examinations.)
[16] The fundamental question is whether or not the visa officer's notes are capable of proving whether he decided the H & C issue. The notes indicate in one place that he would not "support" Ms. Ho's H & C application. That suggests a recommendation, not a decision. The notes also refer to his "decision," but the decision is described, strangely, as "decision not/not to support request for H and C." While the notes are ambiguous, I conclude that on balance they indicate a decision to recommend denial, not a decision to deny.
[17] It follows that I have no reason to doubt the truthfulness or accuracy of the statements in the affidavits of the visa officer and the program manager that the H & C decision was made by the program manager. I conclude that the decision was in fact made by the program manager.
Was the program manager's discretion improperly exercised?
[18] It is argued for Ms. Ho that if the program manager was the decision maker, he erred in relying on the interview conducted by the visa officer. She argues that it is a fundamental principle of procedural fairness that the person who hears must decide: Braganza v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 467 (F.C.T.D.)(QL).
[19] In Braganza, a visa officer issued a decision letter based on an interview and notes prepared by another visa officer who had been transferred. That is not what happened here. The procedure followed in this case was substantially the same as that followed and approved in Burgin v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 34 (F.C.T.D.), in which Noël J. said:
| The Applicant raises as her principal ground for review, the fact that the decision rejecting her application was not made by the officer who conducted the interview, but by her superior. She argues that it is a fundamental principle of the Common Law that he who hears must decide, and that this principle was breached in this instance. |
| It is well established that while a claimant has a right to make an application under s. 114(2) of the Act, and to have that application considered and determined on its merits, there is no duty on the part of the Minister to hold a hearing. In the case at bar, the officer charged with the task of making the decision had before her all the facts and circumstances relevant to the Applicant's claim and she specifically noted that she conducted a detailed review of these circumstances. It follows that it cannot be said that the claim was not assessed on its merits or that the Applicant was not given the right to make her case. |
[20] It is also argued for Ms. Ho that the program manager should not have relied on the visa officer's notes because it is obvious on their face that they are fundamentally flawed. Counsel for Ms. Ho says that the visa officer did not have any particular guidelines in mind when he conducted the interview, and as a result failed to elicit appropriate information about her capacity to be independent. The result is that the record is devoid of any mention of Ms. Ho's low income, the difficulty she will have in living alone in Hong Kong after her son leaves for Canada, and her degree of dependence on her son. She also says that the visa officer should have permitted Ms. Ho's son to be present at the interview to assist.
[21] The onus was on Ms. Ho in the first instance to put all relevant information before the program manager. Evidence as to her income and family circumstances was in the documents she submitted. It is not alleged that Ms. Ho was prevented from submitting any documentary evidence she might have wished to submit.
[22] It is, however, suggested that she was prevented from providing certain information in the interview. I do not accept that. While the visa officer's interview might have covered more ground, he had no obligation to be more thorough than he was in drawing out information to supplement the record.
[23] The evidence is that Ms. Ho's son brought her to the interview and asked the receptionist if he could attend, but she said no. The visa officer's evidence is that as a matter of practice, applicants are interviewed alone unless there is some reason to believe that they are incapable of answering questions. It is not suggested that the visa officer had any reason to believe that Ms. Ho was incapable of dealing with the interview herself, except that she was eighty-one years old. I do not accept that a visa officer must presume that a person of advanced age is, for that reason alone, incapable of answering questions.
[24] Having reviewed the entire record, I conclude that the decision of the program manager was reasonably open to him. While I might have reached a different conclusion, the discretion was his to exercise and I can find no reviewable error.
Conclusion
[25] The application for judicial review will be dismissed.
"Karen R. Sharlow"
Judge
Toronto, Ontario
August 18, 1999
__________________
1See also Sajjan v. Canada (Minister of Citizenship and Immigration) (1997), 216 N.R. 150 (F.C.A.), Chen v. Canada (Minister of Citizenship and Immigration) (October 25, 1998), IMM-4313-98.
2These are the initials of the program manager.
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