Rusli v. Canada (Citizenship and Immigration), docket IMM-533-96

     IMM-533-96

Between:

     FRANCISCA RUSLI,

     Applicant,

     - and -

     MINISTER OF CITIZENSHIP

     AND IMMIGRATION,

     Respondent.

     REASONS FOR DECISION

TEITELBAUM, J.

     The Applicant seeks judicial review of the decision of a visa officer. On February 1, 1996, James Gill, a visa officer with the Canadian High Commission in Hong Kong, rejected the Applicant's application for a temporary employment authorization visa giving her entry into Canada. In a letter dated February 1, 1996, received the same date by the Applicant, the officer gave the following reasons for rejecting the Applicant's employment authorization application:

(1)      already overstayed in Canada having ceased to be a visitor contrary to Section 94(1)(k) of the Immigration Act;

(2)      insufficient ties to her country of citizenship or residence to ensure her return to that country; and

(3)      likely to remain in Canada permanently rather than leaving at the end of the authorized stay.

     In her Originating Notice of Motion, the Applicant sought the following relief:

(1)      an Order setting aside the decision of February 1, 1996; and

(2)      a new interview with a different visa officer

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FACTS

     The Applicant is a native of Indonesia. She first came to Canada in May 1992 on a visitor's visa. During this initial visit, she gave birth in December 1992 to an infant son currently residing in Canada. Her husband lives with her child in Canada. She first left Canada in April 1993 and returned in September 1993. In April 1994, the Applicant briefly visited Mexico to unsuccessfully apply for permanent residence in Canada. She received subsequent visitors' visas, but stayed in Canada beyond the expiry date of her last visa. On June 23, 1995, the Applicant was therefore subject to a departure order. She did not leave Canada pending her application for leave to appeal the June 23, 1995, decision. The Applicant was also issued a validated job offer from the Canada Employment Centre in July 1995 to act as an agent for a scholarship trust fund. The Applicant left Canada for Hong Kong on January 30, 1996, for her interview with the visa officer regarding her application for employment authorization. On February 1, 1996, the Applicant received the decision under review in the current proceedings. The Applicant asked for reconsideration of her interview, but this was denied by a letter dated February 5, 1996, on the grounds that the first interview had been fair and the officer's decision reasonable. On February 23, 1996, in Federal Court File no. IMM-1750-95, Justice Denault dismissed the Applicant's application for leave to review the departure order of June 23, 1995.

GROUNDS OF REVIEW

A)      The Visa Officer Violated the Rules of Procedural Fairness and Natural Justice

     Applicant's Submissions

     The Applicant argues that the visa officer did not respect the rules of procedural fairness and natural justice because he did not perform an objective review of her case. First, the Applicant cites the fact that her interview with the visa officer lasted all of 10 minutes at the office counter. The brevity of the interview indicates that the officer had his mind made up even before the interview was conducted. In fact, the Applicant states that the officer prepared the letter rejecting her visa request in the midst of her actual interview and handed it to her at the conclusion of the interview. Second, the Applicant alleges that she was not given an opportunity to refute the negative conclusions cited in the letter of February 1, 1996. On the issue of her alleged overstay in Canada, she attempted to present the officer with the Record Book of her Federal Court judicial review application, but was rebuffed.

     Respondent's Submissions

     The Respondent has attached an affidavit from James Gill, the visa officer in question. He asserts that his mind was not made up before conducting the interview in the usual manner and place. He did fill in some of the letter dated February 1, 1996, in the Applicant's presence, but this was done at the conclusion of the interview. Mr. Gill also states that he put his doubts about the Applicant's long-term ambitions about remaining in Canada beyond the terms of her one year term of employment to the Applicant herself. Her answers were not satisfactory. The officer also states in his affidavit that he was aware of the Applicant's then pending application for leave to appeal her departure order, but had no need to review her Record Book before the Federal Court.

B)      The Visa Officer Made a Reviewable Error of Law

     Applicant's Submissions

     The Applicant also argues that the visa officer made an error of law when he acted beyond the powers of a visa officer. The visa officer cited the fact that the Applicant had overstayed her previous visitor's visa as a reason for rejecting the employment authorization. In the letter dated February 1, 1996, the visa officer had explicitly mentioned Section 94(1)(k) of the Immigration Act, a section of the law dealing with enforcement offences and punishment. The Applicant alleges that a visa officer is not permitted to charge, convict and find a person guilty under this section. In making a finding under Section 94 (1)(k), the officer acted outside his jurisdiction.

     Respondent's Submissions

     The Respondent counters the jurisdictional argument of the Applicant by stating that the visa officer did not make any conclusive determinations. The officer had to pay heed to the Applicant's previous visits to Canada since this was a relevant issue in considering whether to grant an employment authorization visa. The Respondent states that when the visa officer referred to Section 94(1)(k) he erred, but that this error is a trivial one and had no effect on the decision not to issue a visitor's visa.

ANALYSIS

A)      Did The Visa Officer Violate the Rules of Procedural Fairness and Natural Justice?

     I am satisfied that the visa officer did not violate the rules of procedural fairness and natural justice. Is the duration of the interview a crucial factor to demonstrate that the officer's mind was made up even before the interview commenced? Mr. Gill, the visa officer, does not dispute the Applicant's claim that the interview lasted 10 minutes. However, there are no time trials for the rule of audi alteram partem or the right to be heard. The fact that the interview was relatively short might indicate at the very least a cursory overview of the Applicant's case. Fairness is very much a question of perception. Since the visa officer allegedly began to fill in the form before the interview was even over, there is less likelihood of great deliberation on the merits of the Applicant's case. However, the refusal letter itself is a pre-printed form. The visa officer states in his own affidavit: "My recollection of the events is that I filled in the blank spaces on the refusal letter in front of the Applicant prior to the end of our interview." (Respondent's Record, p.6, para.17).

     It is the content of the interview, rather than its length that is a better indicator of whether the rules of fairness and natural justice were respected: (Respondent's Record p.30, para.12). Attached to Mr. Gill's affidavit in pages 19-23 of the Respondent's Record are Mr. Gill's handwritten notes from the interview. Mr. Gill has jotted down the questions he asked during the interview and the Applicant's responses. The interview apparently covered a relatively wide range of topics since the notes reveal questions about the nature of the Applicant's prospective employment in Canada and her previous visits, departures and sources of income in Canada. Indeed, the Applicant's earlier unsuccessful application for permanent residence, an important point that was not disclosed in her actual application for employment authorization, was discussed during the course of the interview. This fact lends another element of thoroughness to the interview and refutes the Applicant's claim that its brevity violated natural justice.

     The same handwritten notes also undermine the Applicant's claim that she was not given an opportunity to meet the visa officer's objections. In the case of Basco v. Canada (M.E.I.), 43 F.T.R. 233, the Court stated that wherever possible and practical, the applicant should be provided with an opportunity to confront the concerns of the visa officer and to answer them. According to Mr. Gill, he did bring to the Applicant's attention his qualms about the Applicant's previous visits to Canada in which she had overstayed her visa (Respondent's Record, pp. 3-5, para.8, 10, 12). In particular, the visa officer states, "I put it to the Applicant that she was not a bona fide visitor to Canada. The Applicant responded to this comment by presenting me with a copy of the documents filed in Federal Court..." (Respondent's Record, paragraph 13). The fact that the officer did not specifically review the Federal Court Record does not negate the overall impression of fairness. The officer gave the Applicant an opportunity to respond to his concerns.

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B)      Did The Visa Officer Make a Reviewable Error of Law?

     The issue of error of law is not so straightforward, although I am satisfied that there is no cause to quash the decision on this ground. However, I believe there is no doubt that the officer made an error. The lingering question is whether this error is sufficient to warrant judicial review of the decision. What is the nature of the error? In considering the Applicant's earlier stays in Canada, the visa officer was incorrect to cite a particular section of the Immigration Act. In his February 1, 1996, letter, the officer wrote, "You have previously stayed in Canada having ceased to be a visitor contrary to paragraph 94(1)(k) of the Immigration Act" [emphasis added].

Section 94(1)(k) reads:

Every person is guilty of an offence who remains in Canada without the written authority of an immigration officer after having ceased to be a visitor.

     There was no evidence before the visa officer that the Applicant had been charged with a criminal offence under Section 94(1)(k). Now eventually the Applicant could be subject to charges pursuant to Section 94(1)(k), but the Applicant's criminal liability was not up to the visa officer during the course of an interview for employment authorization. It remains open, however, whether the visa officer actually acted outside his jurisdiction merely because he cited that Section of the Act. The visa officer was not charging the Applicant but presuming that because of her overstays, she had acted contrary to Section 94(1)(k). Is this presumption a jurisdictional error and thus a reviewable error of law? The mistake in and of itself is not grave and determinative of the officer's decision. He would have come to the same conclusion even if he had not cited that specific section of the Immigration Act. He could have confined his note to "You have previously stayed in Canada having ceased to be a visitor". It is important to remember too that the officer's error was not in considering the Applicant's previous overstays in Canada, having ceased to be a visitor, but in specifically pinpointing Section 94(1)(k) as the relevant section of the Immigration Act. I note that in Mr. Gill's affidavit dated April 4, 1996, there is not one reference to Section 94(1)(k). The same is true of the letter dated February 5, 1996, from the Second Secretary (Immigration) of the Canadian Commission in Hong Kong in response to the Applicant's request for reconsideration. This avoidance of Section 94(1)(k) leads me to believe that the Respondent is anxious to avoid any continued association with that part of the Act! Instead, the officer confines his remarks in the affidavit to subsection 9(1.2) (Respondent's Record p. 5, para. 14) and his conclusion that she failed to discharge "the burden imposed upon her" by that part of the Act.

     Under Section 9 (1.2)¹ of the Immigration Act, in obtaining a visa, the onus is on the applicant to demonstrate that she is not an immigrant. The first step in issuing an employment authorization is determining if the applicant qualifies for a visitor's visa. Only non-immigrants can receive employment authorization visas under that section of the Immigration Act. According to the case of De La Cruz v. Canada (M.E.I.) (1988), 26 F.T.R. 285 (F.C.T.D), the officer had to consider whether the applicant fulfilled all of the legislative requirements for obtaining a visa. In doing so, the officer was permitted to look to the Applicant's previous stays in Canada, having ceased to be a visitor, and judge that she had failed such a legislative requirement. Now in considering how the Applicant had failed this legislative requirement, was the officer also entitled to cite Section 94(1)(k), a section dealing with the enforcement of offences and punishment? There is no doubt that it was certainly open to the officer to conclude that the Applicant was ineligible for a visa and therefore employment authorization because of her history.

     The question then is whether the error in citing Section 94(1)(k) is a reviewable error. Besides this error in citing a particular Section of the Act, the officer's decision was eminently reasonable. He looked to such highly relevant facts as the nature of the Applicant's previous visits to Canada to decide whether the Applicant was likely to remain in Canada beyond the limits of her employment authorization visa. He was not satisfied by the Applicant's responses concerning her previous sources of income in Canada and her intentions regarding permanent residence. In fact, as was stated above, her previous application for permanent residence made in Mexico was not disclosed in the Applicant's actual application for employment authorization. It only came to light during the course of the interview. The officer took note in his handwritten record of the interview of this earlier unsuccessful application for permanent residence. For this and other reasons, including the insufficiency of the Applicant's ties to her country of origin and her previous overstay in Canada, he was entitled to conclude from the evidence presented that the Applicant was not a bona fide visitor.

CONCLUSION

     The application for judicial review is denied.

                             (Sgd.) "Max M. Teitelbaum"

                                     Judge

February 27, 1997

Vancouver, British Columbia

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¹. A person who makes an application for a visitor's visa shall satisfy a visa officer that the person is not an immigrant.