Date: 20110927
Docket: IMM-1667-11
Citation: 2011 FC 1108
Ottawa, Ontario, September 27, 2011
PRESENT: The Honourable Mr. Justice Crampton
BETWEEN:
YANJUN DONG
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of a decision by a Visa Officer to refuse
to reopen and reprocess Ms. Dong’s application for permanent residence in Canada. That
application was initially granted. However, the permanent resident visa that
was issued to her was cancelled on the basis that she had failed to disclose
her recent marriage.
[2]
Ms.
Dong submits that the Visa Officer’s decision was unreasonable and that she was
denied procedural fairness because (i) she was not provided “an opportunity to
present her side of the story,” (ii) the Visa Officer failed to consider some
of her evidence in reaching her decision, and (iii) the interpreter who
assisted with her point-of-entry interview was not fully competent in Mandarin.
[3]
For
the reasons that follow, the application is dismissed.
I. Background
[4]
On
October 16, 2008, Ms. Dong applied for permanent residence for herself and her
daughter under the Prince Edward Island Provincial Nominee Program (“PEI PNP”). In her
application documents, she indicated that she was divorced. On April 16, 2010,
the consulate in Hong Kong (the “Consulate”) processed her application and
informed her in writing that she and her daughter would be issued permanent
resident visas.
[5]
On
May 19, 2010, Ms. Dong married Mr. Long Yang. One week later, on May 26, 2010,
she received visas for herself and her daughter. At no time prior to her
arrival in Canada on October
26, 2010 did she inform the Consulate of her marriage to Mr. Long.
[6]
On
September 24, 2010, Mr. Long applied for a temporary resident visa (“TRV”) at
the Canadian Embassy in Beijing, in order to help with
his wife’s landing. In his application, he declared that he had married Ms.
Dong on May 19, 2010. His application was denied on the basis that he was
considered unlikely to leave Canada after his authorized stay.
[7]
Upon
her arrival with her daughter at Pearson International Airport in Toronto, Ms. Dong
was questioned by a Canada Border Services Officer (“CBS Officer”). As a result
of that questioning, concerns arose regarding (i) the fact that she had not
previously disclosed her marriage to Mr. Long, and (ii) whether she intended to
settle in Prince
Edward Island
(“PEI”), as opposed to Vancouver. Due to those concerns,
Ms. Dong was requested to report for further examination, to be held the
following day.
[8]
However,
rather than have a hearing before the Immigration Division, Ms. Dong
voluntarily withdrew her application to enter Canada and agreed
to leave Canada without
delay. She departed for Hong Kong later that day.
[9]
On
November 2, 2010, Ms. Dong’s former immigration agent sent an e-mail to the
Visa Officer requesting her to reconsider her decision. On that same date, the
Consulate received a letter, dated October 29, 2010, in which Ms. Dong
apologized for her “negligence” and requested an opportunity to “submit
materials of her spouse.” According to Ms. Dong, she did not sign that letter and
she was not aware of it before it was sent by her former immigration agent.
[10]
On
November 3, 2010 the Visa Officer wrote a letter (the “November Letter”) to Ms.
Dong advising her that her application would not be reopened and reprocessed,
because she had failed to report her marriage to Mr. Long, notwithstanding that
she had previously been clearly instructed to report any changes in her marital
status before collecting her visa. The Visa Officer proceeded to note that had
the Consulate been informed, prior to the issuance of her visa, that she had
married Mr. Long, she would have been informed of additional requirements that
she had to meet as a result of that marriage. The Visa Officer added that, as
matters stood, she did not meet the requirements of the Immigration and
Refugee Protection Regulations, SOR/2002-227 (the “Regulations”) and the Immigration
and Refugee Protection Act, SC 2001, c 27 ( the “IRPA”), because she has a
family member who had not been examined and found to be not inadmissible to
Canada. Accordingly, she was informed that the permanent residence visa that
had been issued to her had been cancelled.
[11]
On
January 31, 2011, Ms. Dong’s new representative, Mr. Jean-François Harvey,
wrote to the Immigration Program Manager at the Consulate to submit that Ms.
Dong’s “rights to land in Canada should be reinstated” (the “Harvey Letter”).
II. The “Decision” under Review
[12]
In
a letter dated January 31, 2011 (the “January Letter”), the Visa Officer informed
Mr. Harvey and Ms. Dong that Ms. Dong’s
application would not be reopened and reprocessed. After proceeding to provide a
brief summary of the history of that application, the Visa Officer reiterated
that the Consulate would not reopen and reprocess the application.
III. Issues
1. Was Ms. Dong late in filing
her application for judicial review?
2.
Was the Visa Officer’s “decision” unreasonable?
3.
Were Ms. Dong’s procedural fairness rights breached?
IV. Standard of
Review
[13]
The issue of whether Ms. Dong was late in
filing her application for judicial review turns on whether the January Letter
constituted a “decision”. In my view, that is a question of law that is
reviewable on a standard of correctness (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para 55; Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para 44).
[14]
The
second issue is a question of mixed fact and law that is reviewable on a
standard of reasonableness. In short, the Board’s determination will stand so
long as it falls “within the range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir, at para 47), provided
that “the process and the outcome fit comfortably with the principles of
justification, transparency and intelligibility” (Khosa, above, at para 59).
[15]
The third issue, concerning Ms. Dong’s
procedural fairness rights, is reviewable on a standard of correctness (Dunsmuir,
above, at paras 79, 87; Khosa, above, at para 43).
V. Analysis
A.
Was Ms.
Dong late in filing her application for judicial review?
[16]
The Respondent
submits that the January Letter did not constitute a “decision,” and therefore
is not subject to review by this Court. In short, the Respondent maintains that
the January Letter was simply a “courtesy letter” which responded to the Harvey
Letter. The Respondent asserts that the January Letter simply (i) explained
that Ms. Dong’s request to reopen and reprocess her application had already
been denied on November 3, 2010, and (ii) restated what Ms. Dong had previously
been told in the November Letter.
[17]
Ms. Dong
submits that the January Letter “effectively refuse[d] the request to reopen
the file” and “clearly discuss[ed] new points” that were raised in the Harvey
Letter. In this regard, Ms. Dong refers to the representations made by Mr.
Harvey that
(i) Ms. Dong had “duly declared her new husband” in the application that was
made for Mr. Long’s TRV, and (ii) the Visa Officer had “seemed to be duly aware
of this fact.”
Ms. Dong
also notes that, in her Statutory Declaration dated, November 3, 2010, she
provided a full history of her husband’s TRV application and asserts that she
and her husband “never tried to hide any facts from the immigration
authorities.” In addition, Ms. Dong notes that, in the Visa Officer’s cover
letter to the Registry of this Court attaching a copy of the January Letter,
she described the January Letter as a “decision.”
[18]
I
disagree with Ms. Dong’s submission on this issue.
[19]
The
fact that the Visa Officer may have characterized the January Letter as a
decision is not determinative of whether it was in fact a decision that is
subject to review by this Court. What is determinative is whether there was a
“fresh exercise of discretion” by the Visa Officer (Choudhary v Canada
(Minister of Citizenship and Immigration), [2000] FCJ 843, at paras 15-16; Brar
v Canada (Minister of Citizenship and Immigration), [1997] FCJ
1527, at
para 8). Moreover, if Mr. Harvey’s letter is properly characterized as
requesting a reinstatement of Ms. Dong’s “rights to land in
Canada,” it is necessary to consider whether the Visa Officer had the
jurisdiction to make a decision concerning the reinstatement of those rights (Choudhary,
above).
[20]
I am
satisfied that it is clear from the face of the January Letter that it did not
address any new arguments or evidence that had not previously been considered
by the Visa Officer. Stated alternatively, there was nothing in the January
Letter which might in any way reflect that the Visa Officer had exercised new
discretion in response to any new submissions made by Ms. Dong.
[21]
In
her initial written submissions, Ms. Dong stated that “the only justification
provided [for refusing to reopen her file] was that the file had already been
closed.” However, at the hearing on this application, Ms. Dong’s counsel
submitted that the January Letter addressed “new” submissions that were made in
the Harvey Letter. Specifically, it was submitted that the following passage,
which appeared at the very end of the January Letter, addressed arguments or
evidence that had not previously been considered by the Visa Officer:
[…] Your evidence is that you married on 19 May 2010. You failed
to inform this office of change [sic] to your family composition as you
were repeatedly instructed to do in our correspondence (visa pickup letter, and
letter accompanying your permanent resident visas). Your statement that you
informed this office of change [sic] in your marital status is untrue.
Moreover, your new husband indicating on his TRV application submitted to Beijing that he married you is not
you informing this office of change to your material [sic] status.
[22]
The
notes entered by the Visa Officer into the Computer-Assisted Immigration
Processing System (“CAIPS”) used by Citizenship and Immigration Canada for
processing applications made outside Canada stated that Ms. Dong had been
refused landing on two grounds: (i) the fact that she is married and did not
inform the Consulate of her changing marriage status, and (ii) the fact that it
had been determined that she was not intending to reside in Prince Edward
Island (“PEI”). The CAIPS notes then stated “SEE FULL EMAIL FOR ENTIRE STORY OF
APP’S ENCOUNTER WITH [CBS] OFFICER POWELL.”
[23]
Among
other things, the CBS Officer’s e-mail to the Visa Officer stated the following
with respect to the issue of Ms. Dong’s marriage to Mr. Long:
Mrs. Dong confirms that, contrary to written instructions which
she was provided with, she failed to notify your office of her change in
marital status. She initially stated that she was not aware of this
requirement; however, she has in her possession the written instructions
provided by your office, clearly outlining that any change in marital status
MUST be disclosed. She then stated that her immigration consultant had not told
her of this requirement. She responds that yes, she is an adult who knows how
to read and write. She confirms that she is educated, stating that she has a
university degree.
….
It should also be noted that when first questioned about her
failure to disclose her changed marital status, Mrs. Dong responded that it was
because she was not going to sponsor her new husband. She was then asked if it
was her intention to live in a new country without her husband. She later
responded that she was advised by the immigration consultant that she should
wait until she was landed and then sponsor her husband at a later date.
[24]
In
addition to the foregoing, Ms. Dong’s letter to the Consulate dated November 2,
2010 states that she was surprised when the CBS Officer indicated that she (the
CBS Officer) had not been notified of her change in marital status. The
implication is that she was surprised because her marriage to Mr. Long had been
disclosed in his TRV application.
[25]
Based
on the foregoing, I am satisfied that the passage from the January Letter which
Ms. Dong attempts to construe as addressing new arguments did not in fact
address any “new” arguments. My conclusion on this point is reinforced by the
fact that the passage from the January Letter, referenced above at paragraph
21, appeared at the very end of that letter, after the Visa Officer stated that
Ms. Dong’s application would not be reopened or reprocessed.
[26]
In
summary, the January Letter did not contain any “decision” that could be the
subject of review by this Court.
[27]
In
addition to the foregoing, I am satisfied that the Harvey Letter clearly
requested a reinstatement of Ms. Dong’s rights to land, rather than a
reconsideration and reopening of her visa application. As such, the Visa Officer,
who exercises authority delegated from the Minister of Citizenship and
Immigration, had no jurisdiction to make any determination in respect of that
request. As noted above, the decision to deny landing rights to Ms. Dong was
made by the CBS Officer, who exercises authority delegated from the Minister of
Public Safety and Emergency Preparedness (Choudhary, above).
[28]
Moreover,
the appropriate time to challenge the CBS Officer’s decision to deny landing
rights to Ms. Dong and her daughter was prior to their departure from Canada. However, rather than
undertake such a challenge, and after being
advised of her right to attend a further examination before the Immigration
Board on October 27, 2010, Ms. Dong explicitly declined to exercise such right
and voluntarily decided to return to Hong Kong later that same day.
[29]
Accordingly,
the only “decisions” that were left for Ms. Dong to challenge were the
decisions in the Visa Officer’s November Letter to (i) refuse to reopen and
reprocess her application for permanent residence, and (ii) revoke her
permanent resident visa. Unfortunately, Ms. Dong did not challenge that
decision nor request an extension of time in which to do so.
[30]
The
decision in Marr v Canada (Minister of Citizenship and Immigration), 2011 FC 367, at para
56, is distinguishable. In Marr, the applicant sought to review the Visa
Officer’s original decision to deny him a skilled worker visa on the basis that
he had not provided a letter to support his educational background. The
applicant immediately sent the missing documentation and asked to have his
application reconsidered. After the Visa Officer refused, the applicant sought review
of the Visa Officer’s decision before the filing deadline. By contrast in the
present case, the Applicant was refused for failing to report at any time prior
to her entry into Canada, information that had
previously been requested. While she claims to have submitted materially new
information after the Visa Officer refused to reopen her application, I am
satisfied that she did not do so.
[31]
It
follows from all the foregoing that this application for judicial review must
be dismissed.
[32]
Given
my finding on this point, it is not strictly necessary to review Ms. Dong’s
remaining submissions. However, given the nature of those submissions I feel
that it would be appropriate to do so.
B.
Was the Visa Officer’s “decision” unreasonable?
[33]
In
the Harvey letter and in her initial
submissions, Ms. Dong stated that she had provided proper notification of her
change in marital status through her husband’s TRV application. However, in her
subsequent submissions she acknowledged that it was her husband who completed
and submitted that application. That said, she then asserted that her failure
to properly report the change in her marital status was attributable to a
misunderstanding and that she never had any intention to deceive the Visa
Officer or anyone else at the Consulate. She further claimed that the CBS
Officer already knew of the change in her marital status at the time of her
point-of-entry interview upon landing in Toronto on October 26, 2010. Now, she also relies on
the principle of the indivisibility of the Crown to state that the Consulate
was effectively notified of the change in her marital status when her husband
submitted his TRV application. In this context, she maintains that the Visa
Officer’s decision to refuse to reopen and reconsider her application was not
reasonable.
[34]
I
disagree.
[35]
As
reflected in the quote reproduced at paragraph 23 above, Ms. Dong gave at least
three different explanations for her failure to disclose the change in her
marital status, in accordance with the instructions that previously had been
given to her. She subsequently provided a fourth explanation, namely, that she
thought the required notice had been provided when her husband submitted his
TRV application.
[36]
In
her e-mail to the Visa Officer, the CBS Officer characterized Ms. Dong as having
had a “propensity to respond that she didn’t know” and as being “evasive” and
generally “lacking in credibility” during her point-of-entry interview.
[37]
In
this context, I am satisfied that the Visa Officer’s decision not to reopen and
reconsider Ms. Dong’s application for permanent resident status was well within
the “range of possible, acceptable outcomes which are defensible in respect of
the facts and law” (Dunsmuir, above). As discussed in the next section
below, Ms. Dong was repeatedly informed of her obligation to report any change
in her marital status. She was also specifically informed that she had an
obligation to report such change to the Consulate in Hong Kong. She must now bear the
consequences of having failed to do so.
C. Were Ms. Dong’s procedural
fairness rights breached?
[38]
Ms.
Dong submits that the Visa Officer should have sent her a “fairness letter” to
provide her with an opportunity to specifically address the issue of the change
in her marital status. In this regard, she asserts that “there are ‘reasonable’
or ‘legitimate expectations’ that an application should be treated fairly,
especially when the consequences is [sic] of such importance for the
applicant.” She further claims that “it appears likely that the submissions of
Mr. Harvey and the detailed solemn declaration of the applicant enclosed with
it were not even considered at all since the reply thereto was simply that a
decision had already been made.”
[39]
I am
satisfied that Ms. Dong’s procedural fairness rights were not breached by the
manner in which she was treated by the Visa Officer and by the CBS Officer.
[40]
The
content of the duty of fairness owed to visa applicants is at the low end of
the spectrum (Chiau v Canada (Minister of Citizenship and Immigration),
[2001] 2 FC 297, at para 41 (CA); Khan v Canada (Minister of Citizenship and
Immigration), 2001 FCA 345, at paras 30-32; Patel v Canada (Minister of
Citizenship and Immigration), 2002 FCA 55, at para 10).
[41]
On
August 27, 2008, a letter was sent to Ms. Dong advising her that she had been
selected as a PEI Provincial Nominee. Among other things, that letter stated:
It is important that you keep us informed … If there is any change
to your family status, ie death, birth or marriage, it is very important that
you advise us and Citizenship and Immigration Canada immediately. Failure to do
so could result in your permanent residency being refused or revoked. Upon
issuance of the visa, please let us know when you intend to relocate to Prince Edward Island.
[42]
The
visa “pick up” letter that was sent to Ms. Dong on April 16, 2010 stated:
You must report to this office in writing any changes in
your travel documents, family configuration and marital status before
collecting your visa(s) or submitting your passport(s). This includes all births,
deaths, marriages, divorces, new custody arrangements and adoptions involving
you and/or your dependents. Changes could result in the necessity of filing a
new application and fee, and sponsorship if applicable. (Emphasis added.)
[43]
It
is very clear from this second letter that any change in Ms. Dong’s marital
status had to be reported to the Consulate in Hong Kong, as opposed to any
other office of the Crown.
[44]
On
May 26, 2010, the visas for Ms. Dong and her daughter were issued with
instructions. The instructions letter of the same date issued by the Consulate
provided the following warning:
Your visa is valid only if all family members (spouse, common-law
partner, dependent son or daughter) has been declared and examined. You are
required to inform us of any change to your family composition prior to
picking up the visas. Failure to have declared any family member may prevent
you from becoming a permanent resident in Canada. You must inform us of any change in your marital status
or in your family composition (marriage, common-law relationship, separation,
divorce, birth of a child, adoption, death, etc.) BEFORE you leave for Canada. We will let you know if
there are further procedures required. (Emphasis added.)
[45]
I am
satisfied that, in this case, the duty of fairness owed to Ms. Dong was more
than met when (i) she was provided with a full opportunity to present evidence
relevant to her case to the Visa Officer, (ii) she was warned several times, in
very clear terms, of the consequences that would flow from failing to notify
the Consulate of any changes in her marital status, (iii) she was provided with
an opportunity, in her port-of-entry interview, to address the issue of whether
she had provided proper notice of the change in that status, and (iv) her
evidence was fully and fairly considered by the Visa Officer. Ms. Dong was also
provided with appropriately justified, transparent and intelligible reasons explaining
why her application would not be reopened and reconsidered.
[46]
In
my view, once a visa applicant has been clearly advised in writing of the
consequences of failing to do something, the applicant’s procedural fairness
rights do not extend so far as to require a visa officer to issue a “fairness
letter” or to provide the applicant with any other opportunity to explain why
he or she failed to do what he or she was clearly instructed to do.
Accordingly, the Visa Officer in the case at bar had no obligation to send a
fairness letter, or to otherwise provide additional opportunities to Ms. Dong
to address the issue of whether she had provided proper notice of the change in
her marital status.
[47]
It
appears from the record that the CBS Officer became aware of Ms. Dong’s
marriage to Mr. Long during her point-of-entry interview. However, even if she
had previous knowledge of the marriage, the fact remains that Ms. Dong failed
to comply with the clear instructions that she was given to report her change
in marital status to the Consulate in Hong Kong. The fact that her husband may have disclosed
the marriage in his TRV application was not sufficient to discharge the onus on
Ms. Dong to report that change in her marital status herself, to the Consulate.
[48]
Ms.
Dong submits that the Visa Officer “did not consider or weigh the possibility
of good faith error here.” However, there is nothing in the record to suggest
that the Visa Officer did not consider the various explanations given by Ms. Dong
for failing to notify the Consulate of the change in her marital status. The
CBS Officer immediately reported to the Visa Officer the inconsistent
explanations that Ms. Dong gave during her port-of-entry interview. Ms. Dong’s
former immigration agent then submitted a letter dated November 2, 2010 which
further explained Ms. Dong’s position that she had never intended to conceal
her marriage to Mr. Long. Particularly given the inconsistent explanations
provided by Ms. Dong, it was open to the Visa Officer to refuse to reopen and
reprocess her application, without specifically addressing those various
explanations either in her November Letter or in her other correspondence with
Ms. Dong.
[49]
Ms.
Dong further submits that the interpreter who assisted with her point-of-entry
interview was not fully competent in Mandarin. In this regard, she maintains
that there was “no assertion that the person is duly accredited for that
language but only that the person believes he or she faithfully provided that
interpretation.”
[50]
However,
the following passage from the CBS Officer’s reporting note to the Visa Officer
makes it very clear that Ms. Dong fully understood what had been communicated
throughout her point-of-entry interview:
An
accredited Mandarin interpreter was utilized during the examination to ensure
that there were no misunderstandings. Given Mrs. Dong’s propensity to respond
to she didn’t know, and that no one had told her, along with her evasiveness
(changing the topic, partial answers, misrepresentations, etc), she was
counseled that she is lacking in credibility thereby casting doubt on the
veracity of any further statements made by her. Hence, to ensure complete
understanding, she was asked to repeat what had been said and asked to provide
in her own words what she understood to be communicated throughout the
examination. It was determined that Mrs. Dong left this office with a full and
complete understanding of the concerns, the effects of A23 release to report
and consequences for failure to comply, the effects of being allowed to leave,
and the requirement to contact your office for further direction. She has been
advised that the respective CPRs will be returned directly to your office and
not returned to her.
[51]
Finally,
Ms. Dong asserts that “to reject a well-qualified applicant out of hand due to
a simple misunderstanding on her part goes against the overall goals of the
immigration policy and the needs of Canadian society.”
[52]
I
disagree.
[53]
Given
the clear and unambiguous instructions that were given to Ms. Dong regarding
her obligation to report any change in her marital status to the Consulate, her
failure to do so cannot be characterized as a simple misunderstanding. Indeed, the
evidentiary record belies this claim.
[54]
Ms.
Dong’s failure to report her marriage to Mr. Long was inconsistent not only
with the clear instructions that were repeatedly given to her, but also with
her “duty of candour,” which requires foreign nationals seeking to enter Canada
to disclose material facts that may have a bearing on their application for
permanent residence (Haque v Canada (Minister of Citizenship and
Immigration), 2011 FC 315, at para 13). Her omission was serious, as it
could have induced an important error in the administration of the IRPA. In
short, her
undisclosed marriage resulted in her having a new family member who had not been
examined and found to be not inadmissible to Canada.
[55]
As
to the overall goals of Canada’s immigration policy
and the needs of Canadian society, I endorse the following comments of my
colleague Justice Mosley, in Haque, above:
14 Section 3 of the IRPA points to a
number of immigration objectives that should be kept in mind when administering
the Act. Among others, these objectives include enriching and developing
the country through social, economic and cultural means while ensuring the
protection and security of Canadians living here. In order to adequately
protect Canada's borders, determining
admissibility necessarily rests in large part on the ability of immigration officers
to verify the information applicants submit in their applications. The omission
or misrepresentation of information risks inducing an error in the Act's
administration.
[56]
Gaining
entry into Canada through misrepresentation or omission undermines the
integrity of Canada’s immigration system (Canada (Minister of
Citizenship and Immigration) v Niaz, 2009 CarswellNat 5411, at para 30). It also
undermines the credibility of that system. The same is true when individuals
gain permanent resident status, or citizenship, in contravention of their duty
of candour.
[57]
When
tolerated, such conduct represents a threat to our immigration system, and an
injustice to those who “play by the rules.” There must therefore be a low
tolerance for such conduct (Niaz, above, at para 40).
[58]
A
low tolerance for such conduct is also warranted in light of the significant
backlog in the number of people who are seeking to become permanent residents
or citizens of Canada, in accordance with the
rules. The legitimate interests of administrative efficiency and fairness to
those who “play by the rules” dictate that those who fail to do so should
suffer the consequences, without being given additional opportunities to
explain their failure, and thereby impose a further burden on our generous
immigration system.
[59]
Even
if the CBS Officer knew, at the time of Ms. Dong’s point-of-entry interview,
that
Mr. Long had disclosed his marriage to Ms.
Dong that would not cure Ms. Dong’s failure to notify that change in her
marital status to the Consulate, as she was instructed to do. It is not open to
applicants for permanent residence to attempt to justify a failure to report information
that they are required to report, by stating that immigration authorities
became aware of that information in other ways, or could easily discover that
information through other means.
VI. Conclusion
[60]
The
application for judicial review is dismissed. There is no question for
certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES THAT this application for judicial
review is dismissed.
“Paul
S. Crampton”
Email this Content