Date: 19990916
Docket: IMM-3229-98
OTTAWA, ONTARIO, SEPTEMBER 16, 1999
PRESENT: THE HONOURABLE MR. JUSTICE LEMIEUX
BETWEEN:
GUI SHENG LAI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
For the reasons given, the judicial review application is allowed, the decision of the visa officer is quashed and the matter is remitted to a different visa officer for reconsideration. No certified question has been requested and none is formulated.
"François Lemieux"
J U D G E
Date: 19990916
Docket: IMM-3229-98
BETWEEN:
GUI SHENG LAI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.:
INTRODUCTION
[1] The background to this judicial review proceeding is an application, on November 21, 1996, for permanent residence in Canada made by Gui Sheng Lai (the applicant) a citizen of the People's Republic of China (PRC). Permanent residence in Canada was sought in the independent category as a Cook, Foreign Food and in the assisted relative category based on his claim to have a sister living in Toronto.
[2] The applicant was interviewed and he obtained 67 points under the Canadian Classification and Dictionary of Occupation Manual (CCDO). He needed 70 points. Of those 67 units, he obtained 5 units out of a possible 10 units for the personal suitability factor. Five bonus points are awarded for close relatives in Canada. The applicant was not assessed under the assisted relative category. If the visa officer had been satisfied, the 70 units would have been achieved. The visa officer was not satisfied the evidence presented by the applicant proved his relationship. On January 20, 1998, the Visa Officer, Victor Majid, Second Secretary, Canadian High Commission in Singapore, so advised the applicant in the following terms on the issue of assisted relative:
| You have obtained insufficient units of assessment to qualify for immigration to Canada in your intended occupation. You had requested that we consider your application in the Assisted Relative Category, as you claimed to have a sister living in Canada. At interview you advised that you had sufficient evidence to prove the relationship to your sister in Canada, which was an old household registry for your parents. You were not able to provide this evidence. You only provided a declaration that she was your sister signed before a notary. This evidence is insufficient to prove the relationship, so I could not assess your application in the Assisted Relative category. |
| [emphasis added] |
[3] These reasons focus on the visa officer's decision related to the assisted relative category issue. The applicant challenged the personal suitability factor assessment of 5 initially awarded by visa officer Angela Gawel and confirmed by visa officer Majid. Such challenge was because visa officer Gawel wrote in her CAIPS notes after the interview: "able to answer all questions with ease"; "have sufficient funds and appear motivated". The applicant has not persuaded me the visa officer's assessment was wrong in law or unreasonable. In Gill v. Canada (M.E.I.) (1996), 34 Imm.L.R. (2d) 127, Jerome A.C.J. said the legislative scheme conferred a broad discretion on the visa officer and that it was entirely within his jurisdiction to form an opinion concerning the applicant's personal suitability. He said provided that opinion is reasonable and is neither arbitrary or capricious there are no grounds for judicial interference.
THE PROCESS
[4] When the applicant, through an agent, made his application for permanent residence in Canada, as proof of his relationship with his sister, he filed a translated notarial certificate which said that Shao Zhen Lai was his younger sister.
[5] The applicant was interviewed by Visa Officer Angela Gawel, who worked as a Second Secretary at the Canadian High Commission between August 1994 and June 1997. Her CAIPS notes of the interview read:
| HOF [Applicant] and spouse interviewed today. Translator used. HOF's PPT indicates occupation as cook. HOF was able to answer all questions with ease and describe his current and past jobs in detail. He is currently the second cook in a seafood restaurant. Previously he had worked at a hotel restaurant from 82-89. HOF and spouse have sufficient funds and appear motivated. HOF meets ND criteria and is experienced in intended occupation. |
| The only difficulty with this case is the AR DOCS: HOF has submitted proof of Cdn Cit for Shao Zhen Lai . . . but not acceptable proof that they are siblings. HOF did submit a notarized statement of relation. But this predates his appln by 3 months and is not acceptable as proof. HOF has said he will obtain the old HH REG of his late parents showing himself and all sibs. I agreed to keep case open for three months to give HOF time to submit. But cautioned that case will likely be refused if DOCS not submitted or not acceptable because HOF will not obtain sufficient units without AR bonus. [emphasis added] |
[6] The following is what transpired in respect of the applicant's efforts to prove his relationship to Shao Zhen Lai:
| (a) On December 12, 1996, the applicant following up on the concerns about the adequacy of the relationship proof expressed at the interview, sent a letter to the High Commission in which he said "I'm now enclosing the relation proof paper you required when we were interviewed in Singapore. I hope it will help to show the relation between my sister and I belong to the same family". The document which the applicant enclosed was entitled "Certificate of Relationship". This document is dated December 3, 1996, is signed by Notary Ke Gande, Guangzhou Notary Public Office, Guangdong Province. In its material parts it reads: |
| This is to certify that the applicant Lai Guisheng ... is the blood elder brother of Lai Shaozhen, is the son of Lai Qiquan and Xiao Yanxian... |
| This document was not much different than what the applicant had originally filed as proof of relationship which the visa officer had determined was not acceptable. |
| (b) The matter appeared to lay dormant for some time. The next CAIPS entry is dated July 24, 1997. It is a letter from the High Commission in Singapore to the applicant. It said the notarized statement of relationship submitted on December 12, 1996, was not acceptable. It noted the interviewing officer had asked for the old household registry of his late parents; |
| (c) On September 18, 1997, the applicant wrote a letter to the High Commission indicating that he had submitted proof of relationship in January 1997. On October 7, 1997, visa officer Victor Majid wrote a letter to the applicant asking the applicant to provide the old household registry of his parents showing the relationship between himself and his sister; |
| (d) On November 12, 1997, the applicant sent a letter to the High Commission referring to the October 7, 1997 letter requesting the old household registry of his father. The applicant indicated he had tried his very best to obtain a copy of the household registry but unfortunately, after his father's death, the old registry under his father's name, had been cancelled. He added this: |
| Although, it is impossible to obtain the household registry under my father's name but after filing the application for relationship status investigation, the result does prove Lai, Shaozhen (Annie Lai) and me are truly related as sister and brother. Thus, with the investigation result I was then issued a Certificate of Relationship by Guangzhou Notary Public Office. Attached is the certificate and investigation result for your reference. |
| [emphasis added] |
| The enclosures consisted of two documents: the first is untranslated; it is said to be the result of the relationship status investigation presumably performed by competent authorities in PRC. The second document is a certificate of relationship; it is dated October 17, 1997. It is signed by Notary Ke Gande and is in similar terms as the December 3, 1996 certificate previously referred to and found unsatisfactory by visa officials. |
| (e) Mr. Majid made an entry in the CAIPS notes on January 2, 1998 to the following effect: |
| At interview PA [applicant] had promised hhld registry. What he has provided does not establish relationship, as it is virtually a Stat Dec. Will consider. [emphasis added] |
| Mr. Majid made another entry on January 19, 1998 which reads: |
| PA [applicant] was advised at interview to provide hhld registry of FTR to prove relationship, which he said he would provide, and yet was unable. Relationship has not been established. Only a proof of relationship document has been provided, which is virtually a stat dec. This does not mean much. Rather just like contention at interview that sister is in Cda. Will subtract the five pts from PA's total. And therefore pts are insufficient. Will refuse. [emphasis added] |
[7] In support of this judicial review proceeding, Shao Zhen Lai filed an affidavit. She states she is the applicant's sister. She asserts the visa officer erred in failing to attach weight to the notarial certificate submitted by the applicant confirming her relationship with him. She takes issue with Mr. Majid's characterization of the documents and says she is familiar with the office of the Notary Public Office in China. She states:
| 8. A Chinese notary is an official of the government in China. A notarial certificate issued in China is not akin to a declaration. It is an authoritative document issued on behalf of the provincial government in China. Contrary to what the Visa Officer states, the notarial certificate on the record was signed by the notary, a public official. It was not a declaration signed before him. |
[8] Victor Majid filed an affidavit in response. Mr. Majid confirmed the various entries taken from the CAIPS notes. He then said this in paragraph 12 of his affidavit:
| 12. Prior to making a final decision on the Applicant's application, I reviewed the file thoroughly. The Applicant had advised at interview that he would provide his father's household registry, which would prove the relationship to Shao Zhen Lai. The Applicant received several requests and was advised that if he failed to provide adequate proof of his relationship he would be refused. Without proper documentation, I was not satisfied that the Applicant was related to his alleged sister. |
| [emphasis added] |
THE ISSUES
[9] Did the visa officer commit a reviewable error when he determined what the applicant had provided him on November 12, 1997 was "virtually a statutory declaration" "this does not mean much" in the CAIPS notes and "you only provided a declaration that she was your sister signed before a notary?"
[10] More fundamentally, did the visa officer breach a duty of fairness in the circumstances, more particularly, after the applicant had advised him that his father's household registry was no longer available? In other words, in the circumstances, did he have a duty to pursue the matter?
ANALYSIS
(a) Standard of review
[11] It is settled law that the authority granted to the visa officer under the Act and Regulations is a discretionary one to be exercised on proper principles. This is made clear by Stone J.A. in Chiu Chee To v. The Minister of Employment and Immigration, (F.C.A.), A-172-93, May 22, 1996, referring to the often-quoted words of McIntyre J. in Maple Lodge Farms Ltd. v. Government of Canada et al., [1982] 2 S.C.R. 2 at pages 7 and 8 as follows:
| It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere. |
(b) Legislative provisions
[12] The Immigration Act provides in
| (i) section 8 an applicant for permanent residence has the burden of proving admissibility to Canada; |
| (ii) section 9 requires such applicants "to produce such documentation as may be required by the visa officer for the purpose of determining admissibility". |
| (c) Case law |
[13] As the respondent submits the case law supports the following propositions:
| (a) the onus is on the applicant to fully satisfy a visa officer of the existence of all positive ingredients in his application (Hajariwala v. Canada (M.E.I.), [1989] 2 F.C. 79). |
| (b) the task of the visa officer is to weigh the evidence submitted by the applicant and the weight to be given to any documentary evidence is a question of fact (Asghar v. M.E.I., [1997] F.C.J. No. 1091. |
[14] There is a line of cases which counsel for the respondent did not evoke. The springboard for this line of cases is the Federal Court of Appeal decision in Muliadi v. Canada (M.E.I.), [1986] 2 F.C. 205 per Stone J.A. In Muliadi, supra, the court held the duty to act fairly required a visa officer to identify concerns or give an applicant an opportunity to comment. The scope of the Muliadi principle varies under the circumstances but has been applied to a duty to further explore obvious contradictions between the oral evidence of a witness and previous information provided in writing (Dhesi v. M.C.I., IMM-3008-95, January 10, 1997, Dubé J.).
[15] In Paik v. Canada (M.C.I.) (1996), 35 Imm.L.R. (2d) 52, Jerome A.C.J. held the duty of a visa officer to confront and clarify arose when there was significant conflict between telephone information and written documentation.
[16] Moreover, it is clear a visa officer is under an obligation to consider fully the submissions and information provided by an applicant (Saggu v. Canada (M.C.I.), [1994] F.C.J. No. 1823, May 18, 1994).
[17] More to the point perhaps is Kaur v. Minister of Employment and Immigration, 98 F.T.R. 91 where Rothstein J., as he then was, dismissed a judicial review application from a visa officer's decision in a case involving the non receipt of requested documents.
[18] As far as it went, counsel for the respondent's argument has merit. The onus was on the applicant to satisfy the visa officer he was the brother of Shao Zen Lai; he filed documents with his application; the visa officer had concerns and expressed them at the interview; the applicant indicated he would provide his father's household registry; he did not do so and the visa officer so said calling for what the applicant had promised.
[19] The conduct of the visa officers up to this point was quite proper. They had to be legitimately satisfied there was a brother and sister relationship here. They were not and from what I can see from the record, the visa officers cannot be faulted.
[20] However, a critical and important communication took place, on November 12, 1997 in the English language. The applicant advised the visa officer he could not furnish the promised (or required) household registry. He explained why. He encloses the untranslated relationship investigation. He attached a certificate of relationship signed by a Notary Public on the basis of the relationship investigation.
CONCLUSIONS
[21] In my view, the visa officer erred in appreciating the nature of the documentation which the applicant had provided him on November 12, 1997. The visa officer was clearly informed that his father's household registry was not available. The visa officer was informed by the applicant of the relationship status investigation and that, as a result of that investigation, a certificate of relationship was issued. In other words, the applicant was signalling to the visa officer that while he could not produce his father's household registry, he pursued the matter further by asking competent authorities in the PCR to conduct a relationship status investigation and that it was upon this investigation the certificate of investigation by Ke Gande was issued. That certificate was not simply a statutory declaration signed before a Notary Public. It was the result of a status relationship investigation which was enclosed, albeit untranslated.
[22] In my view, there are sufficient grounds to warrant the court's intervention. The visa officer misapprehended the evidence before him and in the circumstances had a duty, according to the Muliadi principle, to clarify the issue and further investigate alternatives to the non availability of the promised but unavailable household registry. In other words, the visa officer had a duty to explore whether there were other forms of documentation which could reasonably satisfy the visa officer that the applicant was the brother of Shao Zhen Lai. The applicant provided the visa officer with such an alternative which was not explored.
DISPOSITION
[23] For these reasons, this judicial review application is allowed, the decision of the visa officer is quashed and the matter is remitted to a different visa officer for reconsideration. No certified question has been requested and none is formulated.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
SEPTEMBER 16, 1999