Date: 20000823
Docket: IMM-1117-99
BETWEEN:
KIN WING LAU (a.k.a. Jian Rong Liu)
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.:
[1] These reasons arise out of the latest application for judicial review of a decision of the respondent concerning the applicant"s application for landing in Canada in the assisted relative category. The applicant first applied to come to Canada in June of 1986. Since that time, this is at least the fourth occasion on which the matter has been before this Court.
[2] The genesis of the current application is a decision of Mr. Justice Campbell dated the 24th of April, 19981. Mr. Justice Campbell, in reviewing an exercise of "negative discretion" against the applicant under subsection 11(3) of the Immigration Regulations, 19782, granted the application for judicial review and referred the applicant"s application for landing back for reconsideration. He ruled that the visa officer who exercised her negative discretion had unlawfully fettered her discretion by her strict adherence to a directive issued by an Assistant Deputy Minister in the respondent"s department that listed criteria to be considered when assessing applicants. In referring the matter back, Mr. Justice Campbell noted that the number of units of assessment awarded to the applicant was not in dispute and the only issue to be determined was "...whether negative discretion is appropriate." He stipulated that:
| [I]n contemplating the exercise of discretion, if any, the "good reasons" referred in s.11(3) of the Regulations must include consideration of: (i) two job offers, to which substantial weight must be given; and (ii) the undertaking [of support provided by the applicant"s two brothers in Canada], to which substantial weight must be given. |
[3] Finally, Mr. Justice Campbell directed that the respondent should provide the applicant with notice of whatever facts the respondent intends to rely upon to ascertain whether there are good grounds for the exercise of negative discretion, if any, and allow the applicant to respond before a further decision is made.
[4] In compliance with the order of Mr. Justice Campbell, by letter dated the 7th of September, 1998, a Vice-Consul (the "visa officer") at the Canadian Consulate General in Hong Kong provided the applicant with what amounted to a decision letter, refusing his application for landing in Canada on the basis of exercise of negative discretion and providing the applicant with an explanation of the rationale upon which the visa officer was relying in support of the exercise of negative discretion. The applicant was given a period of sixty (60) days in which to reply to the rationale "...before a final decision is made." For ease of reference, the substance of the visa officer"s letter is set out in full in Appendix "A" to these reasons.
[5] By application filed the 10th of December, 1998, the applicant sought judicial review in respect of the visa officer"s letter of the 7th of September, 1998, described in the application for judicial review as a "decision". The substantive reliefs sought by the applicant and a partial statement of the grounds therefor are in the following terms:
| 1. An order declaring that visa officer Chubak is employing the current time frame for the assessment of discretion but the time frame relative to the filing of the application (lock), he is operating in excess of his jurisdiction and for a writ of prohibit [sic] restraining him from continuing further with the application upon the following grounds: |
| a) that the issue of discretion on the grounds exercised by the previous visa officer are no longer available in that they are merged in the judgement of Campbell, J., in that such facts were put forward as a discretionary reason for refusing the Applicant and that such facts were included in an improper direction from the Assistant Deputy Minister of Immigration directed to visa officers in general. |
| b) by advancing the same or similar facts, the visa officer has demonstrated a reasonable apprehension of [bias,] especially in that a number of such facts are already taken into account in the norms of assessment; and |
| (c) that support items, like getting a job and earning income are subsumed in the undertaking of the Applicant; and |
| (d) that all of the negative factors advanced by officer Chubak, could have been advanced in general in the previous application before Campbell, J. and as such constitutes a breach of public policy as against litigation by instalment expressed by the latin maxim "nemo debet bis vexari". |
| 2. An order of a writ of mandamus directing the Respondent to conclude the process of the Applicant"s application for permanent residence within 90 days of any such order. |
| 3. An order for a writ of mandamus requiring a different visa officer to assess this matter in accordance with the law and facts as it existed on June 24, 1994. |
| 4. A Declaratory Order that the Applicant"s application for Canadian permanent residence be issued subject to medical and security clearance as both visa officer Barr and visa officer Chubak have assessed the Applicant such that he attained at least 70 units of assessment. |
[6] By order dated the 21st of January, 1999, Madame Justice Tremblay-Lamer dismissed the applicant"s application for judicial review. In supporting reasons3, she wrote:
| In my opinion, Mr. Chubak [the visa officer] committed no reviewable errors and exercised his discretion in accordance with Campbell J."s order. |
[7] Counsel for the applicant, on the 28th of January, 1999, made extensive submissions to the Immigration Section at the Canadian Consulate General in Hong Kong in response to the visa officer"s letter of the 7th of September, 1998.
[8] By letter dated the 2nd of February, 1999, the visa officer rejected the applicant"s application for landing in Canada on the basis of exercise of negative discretion. That letter was in substance identical to the letter of the 7th of September, 1998. For ease of reference, the substance of the February 2nd letter is attached as Appendix "B".
[9] It is the letter of the 2nd of February, 1999 that is here under review.
[10] Counsel for the respondent submits that this application for judicial review is res judicata. This submission was addressed as a preliminary issue at the hearing of the application for judicial review. Following submissions by counsel on the issue, I am satisfied that, indeed, this application for judicial review is res judicata.
[11] As indicated earlier, the substance of the decision here under review is identical to the visa officer"s letter of the 7th of September, 1998. Indeed, counsel for the applicant referred to that letter as an "inchoate"4 decision, that matured into the decision here under review.
[12] Three issues were argued on the application for judicial review that was before Madame Justice Tremblay-Lamer and each of those issues was addressed in her reasons for decision. Three issues are raised in the application for judicial review that is before me, one of which is identical to an issue that was before Madame Justice Tremblay-Lamer. At the hearing before me, that issue was abandoned. The remaining issues are first, whether or not it is appropriate for this Court to rely on CAIPs notes and handwritten notes appearing on the tribunal record but the accuracy of which is not attested to in an affidavit filed in the proceeding, and second, whether the visa officer acted unreasonably or considered irrelevant factors in exercising his negative discretion. Both of the issues could reasonably have been raised in the context of the judicial review that was before Madame Justice Tremblay-Lamer and they were not. Their disposition would be the same on both applications for judicial review since the "inchoate" decision and the decision before me are identical in substance. Indeed, though the issues were not apparently raised before Madame Justice Tremblay-Lamer and they are certainly not addressed directly in her reasons, it can be argued that she foreclosed them with her general statement to the effect that the visa officer "...committed no reviewable errors..." in arriving at the "inchoate" decision.
[13] In Vasquez v. Canada (Minister of Citizenship and Immigration)5, Mr. Justice Rothstein notes that the requirements for issue estoppel or res judicata are: first, that the same question has been decided; second, that the decision was final; and third, that the parties in both proceedings are the same. He wrote at paragraph 8:
| The principle is that a party, having received a final decision, is prevented from relitigating the matter notwithstanding that the party has found supplementary arguments that were available at the time of the original litigation. |
I am satisfied that this application for judicial review falls four-square within the foregoing principle. The question of the efficacy of the visa officer"s decision here under review has been decided by this Court, albeit that at the time of the decision, the visa officer"s decision was "inchoate". Madame Justice Tremblay-Lamer"s decision is final. Her reasons indicate that she was invited to certify questions and she declined to do so. Thus, no appeal from her decision was available. Finally, it cannot be disputed that the parties who were before Madame Justice Tremblay-Lamer and the parties on this application are the same.
[14] In the result, on the basis of the principle of issue estoppel or res judicata, this application for judicial review will be dismissed.
[15] I regard this decision to be one of potentially broad significance. The respondent, in the exercise of the range of her duties, is required, through visa officers and others, to make a wide range of decisions that impact significantly on the lives of individuals. The respondent and her officers are to be encouraged, in such circumstances, where decisions involve an analysis of a plethora of factual material and a balancing of two or more ranges of considerations where the weight to be given to each can reasonably give rise to differing opinions, to circulate analyses or draft or "inchoate" decisions and to provide the persons most directly affected with a reasonable opportunity to respond. That is precisely what was done here in response to the order of Mr. Justice Campbell earlier referred to.
[16] Neither the respondent nor an applicant should be prejudiced in seeking judicial review where such a practice is followed. That being said, regard must be had for the following principle drawn from the decision of Fenerty v. Halifax (City)6 and approved by the Supreme Court of Canada in Grandview (Town) v. Doering7:
| The doctrine of res judicata is founded on public policy so that there may be an end of litigation, and also to prevent the hardship to the individual of being twice vexed for the same cause. The rule which I deduce from the authorities is that a judgment between the same parties is final and conclusive, not only as to the matters dealt with, but also as to questions which the parties had an opportunity of raising. |
Where judicial review is sought of an "inchoate" decision, all issues arising out of that "decision" should be brought forward. The principle of res judicata will preclude a second opportunity to raise issues where the "inchoate" decision is made a final decision.
[17] Counsel for the applicant will have seven (7) days from the date of the issuance of these reasons to file representations on certification of a question, having first served them on counsel for the respondent. Counsel for the respondent will have seven (7) days thereafter within which to serve and file responding representations. Counsel for the applicant may, within three (3) working days of the service on him of the respondent"s response, file any reply.
____________________________
J.F.C.C.
Ottawa, Ontario
August 23, 2000
| This refers to your application for permanent residence in Canada, and your interview held on August 04, 1998. I have now completed my assessment of your application and regret to inform you that I have determined that you do not meet the requirements for immigration to Canada in the Assisted Relative category. |
| Pursuant to subsections 8(1) and 10(1) of the Immigration Regulations, 1978 as amended, immigrants in the Assisted Relative category shall be assessed on the basis of each of the factors listed in column I of Schedule I of the Regulations. These factors are: education, specific vocational preparation, experience, occupational demand, arranged employment or designated occupation, demographic factor, age, knowledge of English and French languages and, on the basis of an interview, personal suitability. |
| I have assessed you in the occupation of cook, foreign foods, for which you earned the following units of assessment: |
| Specific Vocational Preparation 15 |
| In order to be selected as an Assisted Relative, you must earn 55 units of assessment. This figure has been reduced from the usual level of 70 in your case to reflect the 15 unit bonus for Assisted Relatives applicable at the time of submission of your application. |
| However, I do not consider the units of assessment which you have been awarded an accurate reflection of your ability to successfully establish in Canada. Although you were awarded sufficient units of assessment to meet the selection criteria, I do not believe that you have the ability to successfully establish in Canada. I have therefore determined that the application of negative discretion is appropriate. This decision to exercise negative discretion has received concurrence by the immigration program manager of this office. |
| In determining that the exercise of negative discretion was warranted, the following facts were considered: |
| Despite having failed previously to meet selection largely because of language ability, you have done nothing to enhance your likelihood of successful settlement/establishment in Canada with respect to ability to communicate in either official language. You speak no English at all. You confirmed that you also wrote no English at all nor had any comprehension in English. You confirmed that you had not studied English recently nor had at any time since your initial application for immigration circa 1986. You were unable to articulate how your complete lack of English may affect your ability to establish in Canada. |
| You have a primary education and no additional training or education. You are able to write in Chinese characters but your grammar is poor. Your usage and choice of characters and ideograms belies a modest degree of literacy in Chinese. I have considered your literacy skills as an indication of your ability to become successfully established in Canada. |
| In consideration of the Court"s order, I have taken into consideration job offers provided by your two siblings in Canada. Your youngest brother, who sponsored your application, is currently working as a cook in a restaurant. You stated that while this brother may have once had a share in a restaurant, he now works solely as a salaried employee. As this brother is an employee, the offer of employment made previously cannot be given any weight. |
| Per information provided by your counsel, your second brother is a minority shareholder in a Chinese restaurant where he works as a cook. You were not familiar with the terms of the job offer and knew not what your responsibilities might be or what differences might exist between foods prepared in Canada and those in PRC. Per unaudited financial statements covering the last the 2 years of operation of this restaurant, the net profits before tax were CAD 11,007 and 9,982 respectively. Based on the foregoing, and in consideration of the Court"s direction to place significant weight on the job offer, I believe that this business, 25% owned by your brother, cannot provide full-time employment, let alone at 26,000/annum as indicated in the offer. You have not provided corresponding personal tax documents to either confirm or deny this conclusion or provide proof that your brother"s business provides a sufficient level of income to maintain the employment offered and/or to support you and your family as required. You were counselled of my concerns with respect to both job offers and provided no rebuttal to overcome my concerns. |
| You have no knowledge of Canada or Toronto nor were able to explain that there may be significant differences between rural China and urban Toronto and that there will be settlement hurdles to overcome. You do not have even the most basic knowledge of Toronto or the living and labour market conditions thereat. You displayed a lack of initiative in confirming that you have done nothing to learn about Canada that would assist you in being able to settle successfully. Your expectations for Canada are that you will be a cook and that your brother(s) will provide for you completely, expectations consistent with a complete lack of research or preparation. |
| You stated that you were assigned your current job. Prior to working as a cook, you worked as a kitchen hand and have never sought employment on open market or through competition. |
| You have no demonstrable knowledge of Canada or labour market matters which would affect your ability to establish and earn a livelihood. You were questioned at some length regarding a job strategy should either of your informal job offers not come to fruition or last only a short time. You replied that your siblings in Canada would assist and provide all necessary support. You are nearly 51 years of age, speak no English, have spent your entire life in a rural village, and have only ever worked as a farm labourer and in an assigned capacity as a second cook with skills limited to frying. It was important that your display some motivation, initiative, adaptability, and resourcefulness with respect to establishing yourself in Canada. However, you confirmed that you had done no research on Canada, the labour market, and that your family had provided very little information with respect to settlement issues. Your admitted lack of research, complete reliance on extrinsic forces (family members), scant understanding of, and lack of research into, the Canadian labour market, and lack of any contingency plans whatsoever is not indicative of such attributes as adaptability, initiative, motivation, or resourcefulness. |
| With respect to any contingency plans, you have none whatsoever should you have to seek employment on the labour market and support yourself and your family. You repeatedly stated that your brothers would provide for you. However, as indicated above, one informal job offer has been obviated by one brother not being in a position to offer employment at all and the other in financial circumstances as such to make his informal job offer not viable. In my opinion, you display an unrealistic and profound reliance on others and this betrays a lack of the factors which might allow you to settle/establish successfully in Canada. |
| The above facts suggest that there will be significant economic difficulties in your establishing yourself in Canada to such an extent that the exercise of negative discretion is appropriate. |
| Before making a final decision, as per the Court"s order, I have provided you with the facts upon which have been relied upon in the exercise of negative discretion and have allowed you sixty (60) days to rebut same before a final decision is made. |
| This refers to your application for permanent residence in Canada, and your interview held on August 04, 1998. I have now completed my assessment of your application and regret to inform you that I have determined that you do not meet the requirements for immigration to Canada in the Assisted Relative category. |
| Pursuant to subsections 8(1) and 10(1) of the Immigration Regulations, 1978 as amended, immigrants in the Assisted Relative category shall be assessed on the basis of each of the factors listed in column I of Schedule I of the Regulations. These factors are: education, specific vocational preparation, experience, occupational demand, arranged employment or designated occupation, demographic factor, age, knowledge of English and French languages and, on the basis of an interview, personal suitability. |
| I have assessed you in the occupation of cook, foreign foods, for which you earned the following units of assessment: |
| Specific Vocational Preparation 15 |
| In order to be selected as an Assisted Relative, you must earn 55 units of assessment. This figure has been reduced from the usual level of 70 in your case to reflect the 15 unit bonus for Assisted Relatives applicable at the time of submission of your application. |
| However, I do not consider the units of assessment which you have been awarded an accurate reflection of your ability to successfully establish in Canada. Although you were awarded sufficient units of assessment to meet the selection criteria, I do not believe that you have the ability to successfully establish in Canada. I have therefore determined that the application of negative discretion is appropriate. This decision to exercise negative discretion has received concurrence by the immigration program manager of this office. |
| You have been provided with the facts which have been relied upon in the exercise of negative discretion and have been allowed to rebut same before a final decision was made. In addition, the Court has found that these grounds previously set out to you were found to be appropriate. |
| I realize that this decision may be a disappointment to you and regret that it could not be favourable. |
__________________
1 (1998), 45 Imm L.R. (2d) 96 (F.C.T.D.).
2 SOR/78-172.
3 (1999), 162 F.T.R. 134.
4 "Commenced but not finished", The Dictionary of Canadian Law - Dukelow & Nuse, - Carswell Publication, 1991.
5 (1998), 160 F.T.R. 142.
6 (1920), 50 D.L.R. 435 (N.S.C.A.).
7 [1976] 2 S.C.R. 621.