Date: 19990817
Docket: IMM-3014-98
BETWEEN:
JIAN LIANG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
EVANS J.:
[1] Jian Liang is a citizen of the People"s Republic of China, where he was born in 1954. Mr. Liang applied to the Canadian Consulate General in Hong Kong for a visa to enter Canada as a permanent resident in the assisted relative category. Mr. Liang"s father has lived in Canada since 1981.
[2] In a letter dated April 3, 1998, Ms. Coulter, Vice-Consul, Immigration, advised Mr. Liang that his application had been rejected on the ground that he had been awarded insufficient units of assessment to qualify for a visa. She also stated:
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I consider the units of assessment which you have been awarded are an accurate reflection of your ability to successfully establish in Canada. |
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[3] In an accompanying letter, the Immigration Program Manager at the Consulate, Mr. Oppertshauser, informed Mr. Liang that his request for his admission to Canada to be facilitated on humanitarian or compassionate grounds had also been rejected because the applicant"s circumstances did not warrant it
[4] The applicant applied for judicial review on both procedural and substantive grounds of the refusal to issue him with a visa.
[5] Before addressing the grounds of review on which he relied, counsel submitted that I should not regard as properly before me as part of the application record the notes made by Ms. Coulter regarding Mr. Liang"s application. This was because they were not supported by an affidavit attesting to their truth on which counsel could have cross-examined her.
[6] It has been held in this Court that the Minister is under no obligation to file an affidavit from a visa officer, and that accordingly the officer"s notes, which are part of the tribunal"s record submitted to the Court under Rule 317 of the Federal Court Rules, 1998 , S.O.R.\98-106 form part of the application record on which the decision is reviewed: Awwad v. Canada (Minister of Citizenship and Immigration) (F.C.T.D; IMM-1003-98; January 19, 1999); Wang v. Canada (Minister of Citizenship and Immigration) (F.C.T.D.; IMM-2073-98; February 19, 1999).
[7] The decision on which the applicant relied, Quebec Ports Terminal Inc. v. Canada (Labour Relations Board) (1993), 17 Admin. L. R. (2d) 16 (F.C.A.) does not assist him. The documents in that case had been supplied by the Board at the applicant"s request but, since they had not existed when the Board made its decision, they were not properly part of its record.
[8] In contrast, counsel"s only objection to the inclusion in the application record of Ms. Coulter"s notes was that they were not supported by an affidavit. Accordingly, they are properly before me as part of the tribunal"s record, even though the absence of an affidavit has prevented the applicant from cross-examining her on them.
| (i) The Special Vocational Preparation Factor |
[9] Counsel for the applicant submitted that Ms. Coulter erred in law in reaching her conclusion that Mr. Liang did not satisfy the SVP for the occupation of printing machinery mechanic, one of the intended occupations in which she assessed his application. Counsel argued that she had based her decision on the fact that the applicant had completed an apprenticeship of 13 months, which falls well short of the minimum of 4 years" SVP prescribed in the Canadian Classification and Dictionary of Occupations for an SVP of 18 units, and of the 2 years" apprenticeship program, or on the job training, required for this particular occupation.
[10] Counsel submitted that the Vice-Consul had focussed exclusively on the formal training for this occupation that the applicant had received, and had ignored other relevant factors, such as his university education in medical electronics and his work experience in other jobs.
[11] However, counsel for the applicant did not satisfy me that Ms. Coulter"s conclusion that Mr. Liang had not met the SVP requirement was erroneous in law, because in my opinion it cannot be said to have been unreasonable or made without regard to the relevant considerations.
[12] It is not at all clear from Ms. Coulter"s notes that she failed to consider factors other than Mr. Liang"s apprenticeship. Her notes simply record her conclusion that the applicant had only 13 months of SVP. It is consistent with this that, having considered all the submissions put before her by Mr. Liang and his representative, the Vice-Consul decided that, on the facts, the applicant"s university education and work experience in other jobs did not constitute specific vocational preparation to be a printing machinery mechanic.
[13] Further, if she gave relatively little weight to these factors that may well have been because the applicant"s submissions had placed most emphasis on his formal apprenticeship.
| (ii) Humanitarian or Compassionate Grounds |
[14] In the submissions made to Ms. Coulter at the interview and in correspondence from Mr. Liang"s representative, it was urged that if the applicant were found not to meet the selection criteria they should be waived in the exercise of the discretion conferred by subsection 114(2) of the Immigration Act , R.S.C. 1990, c. I-2, and by section 2.1 of the Immigration Regulations, 1978, S.O.R.\78-172.
[15] Under these provisions the Minister has a discretion, which has been delegated to immigration program managers, to exempt a person from a regulation or otherwise to facilitate that person"s admission to Canada when the Minister is satisfied that this is warranted by the existence of humanitarian or compassionate considerations.
[16] The applicant based his H. & C. request on the fact that he was the only child of his father, who had lived in Canada since 1981 and was now experiencing serious health problems. Since his father was unlikely to be able to travel to China in the future, if the applicant were not granted a visa he would not see his father again and would be unable to provide him with care and emotional support during his illness.
[17] Ms. Coulter"s CAIPS notes refer to these submissions. They indicate that she focussed on the financial and emotional dependency of the applicant and his father. On the basis of the answers given by the applicant she found that there was no financial dependency at present. As regards emotional dependency, Ms. Coulter"s notes state that the applicant told her that, apart from his father"s current visit, his father had visited him in China on three occasions since 1981 and they spoke by telephone once a month. The notes contain no recommendation or decision on the H. & C. aspect of the application.
[18] The substantive portion of the letter from the immigration program manager at the Consulate, which was sent to the applicant together Ms. Coulter"s decision letter, comprised the following two sentences:
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Your request that your admission to Canada be facilitated owing to humanitarian or compassionate grounds together with the reasons you put forward, has been given careful and sympathetic consideration. I regret to inform you that I have determined that the grounds you presented do not warrant favourable consideration. |
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[19] The only other document in the record relevant to this aspect of Mr. Liang"s visa application is a memorandum from Ms. Coulter to the program manager respecting the applicant"s request for a waiver under section 2.1 of the Regulations. It simply stated that Mr. Liang had requested a waiver on humanitarian or compassionate grounds, and asked the program manager to indicate whether the request is granted or denied. Mr. Oppertshauser signed his name in the "denied" space.
[20] Counsel submitted that this decision was erroneous in law because no reasons were provided for it. He pointed to a provision in the Immigration Manual dealing with the authority of program managers in visa offices abroad to waive the normal selection criteria on H. & C. grounds. The Manual provides as follows:
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The Department also expects program managers to be fully accountable for use of this authority. They must ensure a complete record of the background and rationale for their decision forms part of case files |
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[21] In addition, counsel referred to the recent decision of the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration) (reasons for judgment rendered on July 9, 1999) where it was held that:
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... [i]t is now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision. |
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The Court held that the refusal of a request made on H. & C. grounds that a person in Canada illegally be permitted to remain had such "profound importance" to the individuals affected that fairness required the provision of reasons.
[22] Refusing an H. & C. request to a person who is applying for a visa from outside Canada may be regarded as not having the same "profound importance" to the individual as when the request refused is made by a person who is already within Canada and liable to be removed. Accordingly, it was suggested by counsel for the Minister that the duty of fairness owed by the program manager to Mr. Liang was minimal in content and did not include the giving of reasons.
[23] I do not find this argument persuasive. To assume that a discretionary decision that may lead to the removal of a person from Canada is necessarily more serious for the individual that one refusing admission is, with respect, unduly formalistic. Surely, the seriousness of the adverse effect will depend on the facts of the particular case. Hence, I am not prepared to hold that the refusal of a request for a visa on H. & C. grounds has so little adverse impact on the applicant as to exclude the giving of reasons from the duty of fairness.
[24] While provisions of the Immigration Manual do not in themselves impose legal obligation on the officials to whom they are directed, I am assisted in reaching the above conclusion by the fact that the Manual requires program managers to provide a rationale for their decisions in order to ensure accountability for the exercise of this very important discretionary power.
[25] Counsel for the Minister submitted that, even if I found that the program manager was required as a matter of fairness to provide reasons for his decision, on the facts before me he had discharged this duty. The Supreme Court of Canada in Baker held that the content of the duty of fairness, including the detail and form of the reasons for decision, varies with the decision-making context.
[26] Accordingly, counsel submitted, the adequacy of the reasons provided here must be considered in the context of a refusal to exercise a residual discretion to exempt a person outside Canada from the normal selection criteria for permanent residence. In this context, he maintained, the content of the duty is clearly at the low end of the spectrum, and the reasons requirement will be readily satisfied.
[27] Counsel relied, first, on the terms of the letter written by the program manager in which Mr. Oppertshauser said that he had considered Mr. Liang"s request, but found that the ground relied on by the applicant "did not warrant favourable consideration". In my view, this is a conclusion, not a reason for the decision: it tells the applicant nothing about why the manager refused his request.
[28] Second, counsel urged me to read the letter from the program manager in the context of the file as a whole. In particular, he submitted that I should infer from Ms. Coulter"s memorandum to the program manager about Mr. Liang"s application for an H. & C. waiver that she sent with it the relevant parts of the file, including the written submissions made on his behalf and the notes that she had made of the interview.
[29] Further, while these notes did not contain a recommended disposition of the request, as the officer"s CAIPS notes had done in Baker, they nonetheless identified the relevant issue: whether the facts relied on by the applicant established a sufficient level of emotional dependence to justify the grant of a visa on H. & C. grounds. And, in the absence of evidence to the contrary, it should be inferred that the program manager concluded that they did not.
[30] In my opinion, the applicant has not established a breach of duty of fairness in the refusal of the H. & C. request.
[31] First, the administrative exhortation in the Immigration Manual to program managers that they provide a rationale for their decisions on waiver requests appears to envisage that they should enter their reasons in the file as a matter of course. However, in my opinion the duty of fairness normally only requires reasons to be given on the request of the person to whom the duty is owed and, in the absence of such a request, there will be no breach of the duty of fairness.
[32] There is nothing in the application record before me to indicate that the applicant requested reasons for the program manager"s decision. If the applicant or his representative had regarded the decision-letter as an inadequate explanation, a request should have been made for further elucidation.
[33] In the alternative, I conclude that the record would satisfy a fair minded person, who read it in a realistic manner and as a whole, that the program manager refused the applicant"s request for H. & C. consideration because he thought that the limited contact maintained between the applicant and his father since 1981 did not establish a sufficiently strong emotional bond to justify the discretionary grant of permanent resident status to the applicant.
[34] I am prepared to make the necessary inferences to reach this conclusion on the facts of this case, especially given the residual discretionary nature of the decision and the fact that the applicant is not within Canada.
[35] However, it would avoid uncertainty in the future if program managers made more explicit the bases of their decisions on H. & C. requests.
[36] For these reasons, the application for judicial review is dismissed.
OTTAWA, ONTARIO "John M. Evans"
August 17, 1999. J.F.C.C.
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