Where the Immigration Appeal Division of the Immigration and Refugee Board (the "IAD") has allowed an appeal under s. 77(3)(b) of the Immigration Act from a refusal of a sponsored application for landing, which refusal was based on the sponsored applicant's inadmissibility to Canada under s. 19(1)(c.2) of the Immigration Act, does s. 77(5) of the Immigration Act prohibit the visa officer or immigration officer who has subsequently resumed review of the sponsored application from refusing the sponsored application on the basis of the sponsored applicant's inadmissibility to Canada under s. 19(1)(c.2) of the Immigration Act based on evidence that was not before the IAD when it allowed the appeal?

[2] The appellant was first refused permanent residence in 1995 by a visa officer on the grounds that he was inadmissible to Canada under paragraphs 19(1)(c.2) and 19(2)(a.1)(i) of the Act. Only paragraph 19(1)(c.2) is germane to this appeal and reads as follows:

19. (1) No person shall be granted admission who is a member of any of the following classes:

(c.2) persons who there are reasonable grounds to believe are or were members of an organization that there are reasonable grounds to believe is or was engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of any offence under the Criminal Code or Controlled Drugs and Substances Act that may be punishable by way of indictment or in the commission outside Canada of an act or omission that, if committed in Canada, would constitute such an offence, except persons who have satisfied the Minister that their admission would not be detrimental to the national interest.

19.(1) Les personnes suivantes appartiennent à une catégorie non admissible :

(c.2) celles don't il y a des motifs raisonnables de croire qu'elles sont ou ont été membres d'une organisation don't il y a des motifs raisonnables de croire qu'elle se livre ous'est livrée à des activités faisant partie d'un plan d'activités criminelles organisées par plusieurs personnes agissant de concert en vue de la perpétration d'une infraction au Code criminel ou à la Loi réglementant certaines drogues et autres substances qui peut être punissable par mise en accusation ou a commis à l'étranger un fait - acte ou omission - qui, s'il avait été commis au Canada, constituerait une telle infraction, sauf si elles convainquent le ministre que leur admission ne serait nullement préjudiciable à l'intérêt national;

[3] The first visa officer based his refusal on three separate criminal convictions of the appellant in Hong Kong, namely, membership in a triad (1974), possession of an offensive weapon (1976), and possession of a dangerous drug (1985). An appeal in 1997 to the IAD was successful. The panel found, inter alia, that the ground for refusal pursuant to paragraph 19(1)(c.2) was valid but that special relief was warranted based on humanitarian and compassionate grounds.

[4] The case was subsequently remitted to a visa officer pursuant to subsection 77(5) of the Act which provides:

77.(5) Subject to subsection (6), where the Minister has been notified by the Appeal Division that an appeal has been allowed pursuant to subsection (4), the Minister shall cause the review of the application to be resumed by an immigration officer or a visa officer, as the case may be, and the application shall be approved where it is determined that the person who sponsored the application and the member of the family class meet the requirements of this Act and the regulations, other than those requirements on which the decision of the Appeal Division has been given.

77.(5) Une fois avisé qu'il a été fait droit à l'appel, le ministre, sous réserve du paragraphe (6), fait poursuivre l'examen de la demande par un agent d'immigration ou un agent des visas. Celui-ci approuve la demande s'il est établi que le répondant et le parent satisfont aux exigences de la présente loi et de ses règlements, autres que celles sur lesquelles la section d'appel a rendu sa décision.

(My emphasis)

[5] In late 1999 and early 2000, a second visa officer interviewed the appellant and reviewed new information that was not available at the time of the appellant's first visa interview or at the IAD appeal. This information concerned gambling convictions in 1993 and 1994 which were not disclosed during the hearing before the IAD.

[6] The officer determined that the pattern of evidence which was available to him and which was not previously considered by the IAD divulged credible and compelling reasons to believe that the appellant was a person described in paragraph 19(1)(c.2) of the Act. The refusal letter states in part:

I have also carefully examined the information you provided at your interview of December 16, 1999 about the circumstances of your two convictions in Hong Kong for Gambling in a gambling establishment, dated December 17, 1993 and September 28, 1994 respectively. You confirmed to me at interview that you did not advise the Appeal Division of these two convictions when you provided oral testimony to them by telephone. I have determined that the circumstances of these two offences are characteristic of organized criminal activities when considered in the local context, and that they are further evidence of a pattern of ongoing organized criminal activity. The circumstances of these offences further corroborates information received in confidence from a reliable source, which identifies you as a confirmed member of a criminal organization. I have also confirmed with you at interview that you had regular contact with heroin dealers who were known to you as members of criminal organizations during the period in which you were previously addicted to heroin.

[7] The second visa officer denied the appellant's application on the basis of paragraph 19(1)(c.2) of the Act. In doing so, the refusal was based on the same statutory provision as the one which the IAD had earlier considered and waived.

[8] The appellant sought judicial review alleging, inter alia, that the second visa officer was precluded from refusing admission on requirements which the IAD had already dealt with in its decision.

Decision of the Motions Judge

[9] Nadon J. dismissed the appellant's application by Order dated March 26, 2001. In his view, the second visa officer could not, in the face of the IAD ruling, invoke the 1974 conviction for triad membership as a basis for refusal of admission. However, the Motions Judge held that subsection 77(5) did not preclude the second officer from holding that the appellant was inadmissible pursuant to paragraph 19(1)(c.2) on the basis of evidence which was not before the IAD. According to the Motions Judge, it would be contrary to the objectives of the Act as articulated by section 3 to curb the powers of a second officer in such circumstances. He said in the course of his reasons (paragraph 15):

Such an interpretation of subsection 77(5) of the Act would allow an immigrant to enter Canada even if evidence clearly indicated that he or she should be excluded, only because other evidence pointing to the same conclusion of inadmissibility under the same provision of the Act had previously been considered by the IAD. In my view, such a result cannot be intended by subsection 77(5) of the Act.

Arguments

[10] Before this Court, the appellant suggested that once the IAD rendered its decision on humanitarian and compassionate grounds, the second visa officer was without jurisdiction to consider again the appellant's status in relation to paragraph 19(1)(c.2) of the Act. Accordingly, the visa officer on resuming review under subsection 77(5) may not refuse the application on the same legal grounds as the first refusal.

[11] The Minister, on the other hand, urged that while the effect of the IAD decision was to prohibit the second visa officer from refusing the appellant's application on the same grounds as the initial refusal, the decision did not prohibit a refusal based on new and relevant evidence, even though the statutory basis of the refusal was the same.

Analysis

[12] The issue involves the interpretation of the words "other than those requirements on which the decision of the Appeal Division has been given" in subsection 77(5). If the requirements refer only to the statutory provision with which the IAD dealt, then the application must succeed. Paragraph 19(1)(c.2) was the provision under which the appellant was initially excluded and against which the IAD relieved.

[13] However, if the requirements refer not only to the statutory provision but also to the material facts upon which the IAD decision was based, then those new material facts that came to the attention of the visa officer but were not considered by the IAD, would not be requirements on which the IAD decision was given. On this interpretation, although the same statutory provision, as was considered by the IAD, might be under consideration by the visa officer, the visa officer would not be obligated to approve the application for permanent residence because the material facts were different.

[14] I am of the opinion that the requirements referred to in subsection 77(5) include both the relevant provisions of the Immigration Act and the relevant material facts, and it is open to a visa officer, under subsection 77(5), to consider new material facts not before the IAD in deciding whether to approve an application for permanent residence.

[15] Under subsection 77(5), the visa officer must determine whether the sponsor and the individual being sponsored meet the requirements of the Act. That is both a legal and factual inquiry. When the IAD has found that an individual does not meet the requirements of the Act on the facts before it, but nevertheless grants humanitarian and compassionate relief, a visa

officer under subsection 77(5) cannot deny the individual that relief on the basis of those same

facts. The words "those requirements" that describe the requirements that the visa officer is prohibited from considering must have the same meaning as the immediately preceding words "meet the requirements of this Act and the regulations". The visa officer cannot consider the same facts that have been considered by the IAD and come to a different decision than the IAD. As the appellant points out, the visa officer does not, under subsection 77(5), sit in appeal or review of a decision of the IAD. That is the reason for the words "other than those requirements on which the decision of the Appeal Division has been given".

[16] However, the relief granted by the IAD is predicated on the facts presented to the IAD. Where new facts come to the attention of the visa officer, the visa officer is required to consider whether the sponsor and the person being sponsored meet the requirements of the Act, having regard to those new facts. Of course, the facts must be new in the sense that they arose after the IAD hearing or, as in this case, were within the knowledge of the sponsoree but were withheld from the IAD and were discovered subsequently. Also, the new facts considered by the visa officer must be material. A visa officer cannot seize on insignificant facts. To do that would, in effect, mean that the visa officer was considering whether the individual met the requirements of the Act on virtually the same material facts considered by the IAD.

[17] In this instance, the IAD exercised its discretion in favour of the appellant despite the fact that he was inadmissible pursuant to paragraph 19(1)(c.2) on the basis of evidence which established to its satisfaction that the appellant was fully rehabilitated. In coming to this conclusion, the IAD noted that the appellant had been crime free for more than 10 years, that he had admitted to all of his convictions and that he had taken responsibility for his offences. (decision of the IAD, paragraphs 26 and 29).

[18] The appellant's gambling convictions in 1993 and 1994 are unquestionably new material facts which the IAD did not have the opportunity to consider. The visa officer, on the other hand, had this opportunity and it follows, in my view, that the requirements on which the visa officer based his refusal are not the same requirements considered by the IAD in arriving at its decision.

[19] Specifically, the IAD decided to exercise its equitable jurisdiction in favour of the appellant because the convictions which gave rise to his inadmissibility were dated and because it was satisfied, based on the appellant's testimony, that he was now fully rehabilitated.

[20] However, upon the resumption of the hearing under subsection 77(5), the second visa officer was confronted with new evidence in the form of unrevealed convictions from which he concluded that not only was the appellant not rehabilitated but that he was engaged in a pattern of criminal activity and continued to be a member of a criminal organization. That is the basis upon which he ruled that the appellant was inadmissible pursuant to 19(1)(c.2).

[21] Although both decisions are based on the same statutory provision, it is apparent when regard is had to the evidence, that the evidence on which the second visa officer refused to admit the appellant is not the evidence which the IAD considered when it decided to exercise its equitable jurisdiction in favour of the appellant.

[22] In my view, therefore, Nadon J. came to the correct conclusion when he held that the decision of the second visa officer was not precluded by the concluding words of subsection 77(5). A visa officer is not precluded from refusing a sponsored application under subsection 77(5) on the same statutory basis as was relieved against by the IAD when new material facts arising after the IAD hearing or discovered after the IAD hearing and not before the IAD, come to the attention of the visa officer.

Disposition

[23] I would dismiss the appeal.

"B. Malone"

J.A.

"I agree

Marshall Rothstein J.A."

"I agree

Marc Noël J.A."

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Au v. Canada (Minister of Citizenship and Immigration), 2002 FCA 8

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2002 FCA 8