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CHAPTER 10
10. VISA OFFICERS AND THE DUTY OF FAIRNESS
10.1. INTRODUCTION
There is, as a general common law principle, a duty of procedural fairness
resting on every public authority making an administrative decision which
affects the rights, privileges or interests of an individual.1
The content of the duty of fairness in application to individual cases
will vary according to the circumstances of each case. In the final analysis,
the simple question to be answered is: Did the decision-maker, on the
facts of the particular case, act fairly toward the person claiming to
be aggrieved?2
The decision making of immigration officers and visa officers (immigration
officers stationed outside Canada) is examined in this chapter in order
to illustrate fairness principles.
10.2. CONTENT OF THE DUTY OF FAIRNESS
10.2.1. Generally
Much of the Federal Court jurisprudence on the subject of procedural
fairness deals with decisions on applications for exemption, on compassionate
or humanitarian grounds, from certain requirements of the Immigration
Act. The decision to grant or deny a request for exemption is a discretionary
one.
Where an immigration officer considering an application for exemption
does not err in law or proceed on some wrong or improper principle, acts
with an open mind without unduly fettering her discretion, and gives the
applicant an opportunity to respond to any concerns with respect to the
application, the officer has discharged her duty fairly.3
This also accurately states the duty of procedural fairness applicable
to the processing of sponsored applications for landing, which may come
before the Appeal Division following a visa or immigration officer's refusal
of the application.
In Baker, 4
the Supreme Court identified some factors relevant to determining the
requirements of the duty of fairness according to the circumstances. They
are:
- the nature of the decision being made and the process followed in
making it;
- the nature of the statutory scheme in question and the terms of the
statute pursuant to which the body operates;
- the importance of the decision to the individual affected;
- the legitimate expectations of the person challenging the decision;
and
- the choices of procedure made by the decision-maker, particularly
when the statute leaves to the decision-maker the ability to choose
its own procedures or when the agency has an expertise in determining
what procedures are appropriate in the circumstances.
Essentially, the question is whether, considering all the circumstances,
those whose interests were affected had a meaningful opportunity to present
their case fully and fairly.
10.2.2. Conflicting Statements at the Interview
A visa officer has a duty to clear up a direct conflict in two statements
sworn by an applicant on the same day regarding the applicant's intention
to reside permanently in Canada.5
This duty was articulated in Pangli, where the Federal Court
of Appeal invoked the Canadian Bill of Rights to afford the sponsor
a fair hearing in accordance with the principles of fundamental justice.
Relying on the authority of Pangli, the Appeal Division has set
aside visa officers' refusals.6
10.2.3. Use of Extrinsic Evidence
Extrinsic evidence means evidence of which an applicant is unaware because
it comes from an outside source.7
An immigration officer should provide an applicant with an opportunity
to comment upon extrinsic evidence.8
The Federal Court of Appeal has outlined the officer's obligations in
these terms:
The officer is not required to put before the applicant any
tentative conclusions she may be drawing from the material before her,
not even as to apparent contradictions that concern her. Of course, if
she is going to rely on extrinsic evidence, not brought forward by the
applicant, she must give him a chance to respond to such evidence.9
Information obtained from a spouse in a separate interview is not regarded
as extrinsic evidence to which an applicant must be allowed to respond.10
Therefore, any discrepancies in the spouses' accounts may be taken into
consideration without putting the discrepancies to the spouses for an
explanation.
Adequate notice has to be given to respond to extrinsic evidence.11
An immigration officer is not required to disclose public source documents
on general country conditions which are available when an applicant makes
submissions to the officer. Public documents which become available after
the filing of submissions should be disclosed where they are novel, significant
and may affect the decision.12
Failure to share a document with an applicant may deny him a meaningful
opportunity to present his case fully and fairly.13
10.2.4. Providing Opportunity to Demonstrate Rehabilitation
In the case-law decided before the Immigration Act was amended
in 1995,14
there was no obligation imposed on visa officers to inform an applicant
of the opportunity to demonstrate rehabilitation before refusing the applicant
under the criminal inadmissibility provisions of the Act. Nor was a visa
officer obliged to await the outcome of an applicant's request, submitted
to the Governor in Council, to demonstrate rehabilitation.15
The visa officer's only responsibility was to ascertain that there was
no certificate of rehabilitation on the applicant's file.16
Since the 1995 amendments, the Minister decides on rehabilitation in
all cases and the Governor in Council is no longer involved. Since the
Minister now makes the decision on rehabilitation, a duty on the part
of the visa officer to inform an applicant of this avenue of redress may
emerge.17
10.2.5. Delay, Legitimate Expectations, Estoppel
The Federal Court has held that fairness requires that an applicant receive
a timely decision. What that means will vary with the circumstances of
each case.18
The Immigration Appeal Board has recognized that the duty to act fairly
includes a duty to proceed within a reasonable time,19
and relief has been granted where administrative delays have had the effect
of disqualifying an applicant.20
But the case-law is conflicting on this issue. An earlier case held that
delay is not such unfairness as to render a visa officer's decision a
nullity.21
And as held in Gill :22
This is not, however, to say that the Government can, by simple
inaction, defeat rights which were clearly intended to be granted. It
may well be that the recently discovered administrative duty to act fairly
encompasses a duty not unreasonably to delay to act; or, put positively,
that the procedural duty to act fairly includes a duty to proceed within
a reasonable time. It does not by any means follow, however, that the
breach of such a duty would give rise to the setting aside of the tardy
action when it is finally taken. The remedy surely is to compel timely
action rather than to annul one that, though untimely, may otherwise be
correct.
The doctrine of legitimate expectations has been invoked on occasion
in the immigration context.23
The doctrine means that if a public body expressly or impliedly undertakes
to follow a certain procedure, it may be held to its undertaking.24
However, the doctrine is restricted to procedural matters and cannot be
used to override a statutory requirement.25
Estoppel has been applied in the context of a visa officer's decision
regarding an applicant who relied on an immigration official's advice
to her detriment.26
10.2.6. Bias
If a reasonable apprehension of bias is made out, it is impossible to
have had a fair hearing. The hearing and any subsequent decision are void.27
There is no apprehension of bias where an immigration officer deals with
an applicant on two separate occasions in respect of two different matters,28
or deals with the applications of two related spousal applicants.29
Greater care must be taken where both matters in issue are the same and
involve final decisions.30
A visa officer is not obligated to follow caselaw that is most favorable
to an applicant.31
Bad faith, abuse of discretion or improper conduct on the part of an
immigration officer will lead to the quashing of the officer's decision.32
10.2.7. He Who Decides Must Hear
It is a denial of a sponsor's right to be afforded a fair hearing in
accordance with the principles of fundamental justice if one visa officer
interviews the applicant and a different officer refuses the application.33
Where the interviewing officer was not the one to sign the refusal letter,
yet the officer who did refuse made an independent decision based on the
evidence, there was no breach of fairness.34
It is permissible for a visa officer to receive and weigh information
from other sources provided the officer arrives at an independent conclusion
regarding an applicant's admissibility.35
10.2.8. Knowing Case to be Met and Opportunity to Respond
InMuliadi, 36
the Federal Court of Appeal held that a visa officer's decision, based
on material which had not been presented to the applicant, and which he
had not been given an opportunity to refute, was procedurally unfair.
As a general proposition, a visa officer must provide an applicant with
an opportunity to refute evidence in the officer's possession which is
relied on by the officer in denying a visa,37
and to advise the applicant of any concerns and provide an opportunity
to respond before making a decision.38
Where a visa officer adopts her own specific standard or test for interpreting
documentary evidence from the originator of the records, the officer should
provide an opportunity for the applicant to comment on the standard or
test proposed, before a decision is made.39
Basically, where concerns are raised as a result of new information,
significant in leading a decision-maker to decide against an applicant,
they should be put to the applicant.40
Withholding material in the absence of compelling reasons, such as national
security, results in unfairness towards an applicant.41
Offering an opportunity to respond includes an obligation to allow a
reasonable time to do so.42
It is a breach of fairness for a visa officer to decide an applicant's
case before the applicant is given an opportunity to supply documentary
evidence requested by the officer;43
and for an officer to fail to clarify a contradiction between documents
submitted by an applicant and his statements at interview44
or a contradiction regarding an applicant's employment status.45
It is not unreasonable to rely on experience of a high level of fraud
at a visa post to raise suspicions about the authenticity of documents.
46
Similarly, fairness was denied when an applicant was not given a fair
opportunity to make submissions before the decision to refuse his son
on medical grounds.47
In this respect, the current practice is for visa officers to send a "fairness
letter" inviting further medical evidence from applicants before
a final decision on medical admissibility is made.48
Although preferable for a visa officer to ask an applicant for information
on both the medical condition and excessive demands on health or social
services, the fact that the officer asked only for further information
on the medical condition in the fairness letter was not a breach of procedural
fairness.49
However, where a fairness letter left an applicant totally in the dark
as to what issues he should respond to, the practice could be regarded
as unfair.50
Similarly, where the fairness letter failed to disclose the criteria used
by the medical officers and the nature of the excessive demands involved,
there was a breach of fairness.51
In addition, non-disclosure of information requested by an applicant's
counsel concerning the basis on which a medical opinion has been rendered
is likewise a breach of fairness.52
10.2.9. Interpretation at the Interview
Lack of adequate interpretation has been held to constitute a breach
of fairness.53
10.2.10 Other Procedural Matters
In Tham, 54the
refusal letter had been issued before the interview with the applicant.
The Federal Court of Appeal, affirming the Immigration Appeal Board's
decision,55
held that the refusal was premature and a breach of the duty of fairness
implicit in the Act and Regulations.56
The duty of fairness in administrative law normally only requires reasons
be given on request.57
However, in Baker 58
it was held that on a compassionate or humanitarian request for exemption,
reasons are required because of the profound importance of the decision
to those affected. The decision and reasons do not have to be released
contemporaneously.59
There is no obligation, on a request for a compassionate or humanitarian
exemption, to conduct an oral hearing.60
However, if the Department agrees to an interview, it has to conduct it
fairly,61
including giving reasonable notice of the interview date.62
A visa officer has jurisdiction to reconsider a decision63
and is not functus officio once a decision to issue an immigrant
visa is made.64
The concept of res judicata does not apply on the assessment
of a subsequent application for permanent residence.65
There is no right to counsel at an interview with a visa officer.66
However, when applicants are invited to have counsel present at their
interview, implicit in the invitation is the assumption that counsel will
be able to speak on their behalf and it is a breach of natural justice
to deny counsel the right to take part.67
Bypassing counsel and contacting an applicant directly to obtain information
to deny a claim is a breach of fairness.68
There does not exist a general discretion in visa officers to grant an
adjournment arising by analogy from powers granted to administrative tribunals69
or to extend a time limit prescribed by regulation.70
REMEDIES FOR BREACH OF FAIRNESS
10.2.11. Jurisdictional Questions
The decisions of the Federal Court of Appeal in Porter, 71
Pangli 72
and Tham 73
support the view that the Appeal Division may take jurisdiction to address
fairness issues.
In terms of the jurisdiction of the Appeal Division to cure procedural
defects, Kaushal 74
holds that the Appeal Division has no powers equivalent to certiorari
to quash for excess of jurisdiction, but can conclude there has been such
unfairness as to render a visa officer's decision a nullity.75
10.2.12. Options
In the event of a breach of either type at issue in Pangli,
76
(i.e., the officer conducting the interview was not the officer who refused;
or there was a conflict in two statements sworn the same day by an applicant),
the Appeal Division has, generally speaking, followed Pangli
and allowed the appeal.77
The denial of natural justice vitiates the whole proceeding, and according
to Chandler, 78
a tribunal is bound to start afresh in order to cure the defect in such
circumstances.79
The Appeal Division has relied on Newfoundland Telephone Co. Ltd.
80
in concluding the visa officer's decision in these circumstances is void.
However, for other situations which Pangli did not directly
address involving a denial of fairness in the sponsorship process, the
cases favour the de novo approach.81
The hearing before the Appeal Division is a de novo hearing in
a broad sense and the appeal is decided on all the evidence adduced at
the hearing and on the facts as they exist at the time. Hence, any lack
of fairness which may have occurred at an earlier stage in the processing
of an application can be cured through the Appeal Division's full hearing
process.82
In Gill, 83
relying on Kahlon, 84the
Appeal Division decided the appeal on all the evidence notwithstanding
its finding of breach of due process in the financial assessment of a
sponsor. In another case, the Appeal Division looked at prejudice in concluding
the sponsor had not been prejudiced and would have every opportunity to
address the conflicting evidence in question at the Appeal Division hearing.85
InAtwal, 86
the alleged breach was a lack of interview by the visa officer. The appeal
hearing was held to cure any procedural defect.
In some instances, the Appeal Division has given evidence which is "tainted"
by unfairness little weight or no weight.87
In Mistry, 88
the de novo approach was adopted where the interview had been
unfair due to inadequate interpretation. The panel decided the case by
excluding the "tainted" evidence from the interview and relying
on the other evidence in the record and at the hearing.89
In another case, having concluded that procedural fairness required the
immigration officer to ask for an explanation of certain discrepancies,
the Appeal Division gave no weight to the statement of the officer.90
The introduction of evidence at the hearing that the Governor in Council
had determined the applicant was rehabilitated could have remedied any
procedural unfairness in relation to the question of rehabilitation which
may have occurred during the visa officer's processing of the application.91
The "thin file" policy adopted in the processing of some applications
for permanent residence may not provide sufficient information to know
the case to meet, but the hearing on the merits before the Appeal Division
cures any breach of fairness.92Less
frequently, the Appeal Division has allowed an appeal solely on the basis
that some fundamental breach of fairness has occurred.93
This approach finds support in decisions such as Tham. 94
In Cheema, 95
the Appeal Division held that a visa officer's refusal should not be set
aside unless the Appeal Division is satisfied that the alleged breach
of natural justice by the visa officer has compromised the sponsor's right
to a full and fair de novo hearing before it.
The usual consequence of a denial of fairness is to render the resulting
decision invalid.96
However, the Supreme Court of Canada has introduced an exception to this
principle.97
Where it is certain that even if a fair hearing is held, the applicant
cannot as a matter of law succeed, the remedy may be withheld.98
An application for judicial review under section 82.1(2) of the Act may
be pursued as a remedy to quash a visa officer's decision for procedural
unfairness.99
Such an application would not appear to preclude a concurrent appeal to
the Appeal Division from the same decision of the visa officer.100
- Ahmed, Mohammed v. M.C.I.
(F.C.T.D.,
no. IMM-2828-98), Tremblay-Lamer,
April 16, 1999.
- Ali, Nawal El v. M.C.I.
(F.C.T.D.,
no. IMM-3327-00), Dawson,
April 27, 2001.
- Arthur, Gertrude v. M.E.I.
(F.C.A.,
no. A-991-90), MacGuigan,
Linden, Gray, November 2, 1992.
- Atwal, Lakhbir Kaur v. M.E.I.
(IAD
V88-00152), MacLeod, Singh, Chambers, May 12, 1989.
- Badejo, Olayemi Anne v. M.C.I.
(F.C.T.D.,
no. IMM-1341-00), O'Keefe,
November 30, 2000.
- Baker v. Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R.
817.
- Baker, Agneta v. M.C.I.
(F.C.T.D.,
no. IMM-1154-00), McKeown,
April 23, 2001.
- Basi, Sukhdev Kaur v. M.E.I.
(IAD
V87-6043), Mawani, Chambers, Gillanders, March 20, 1989.
- Bendahmane: M.E.I.
v. Bendahmane, Mokhtar (F.C.A.,
no. A-84-87), Hugessen, Desjardins,
Marceau, April 10, 1989. 10-5
- Bensalah, Lekrim v. M.C.I.
(F.C.T.D.,
no. IMM-4907-98), Pinard,
August 13, 1999.
- Bhagwandass v. Canada (Minister of Citizenship and Immigration),
[2001] 3 F.C. 3 (C.A.)
(requiring disclosure of documents supporting Minister's danger opinion).
- Bhajan, Hari v. M.C.I.
(F.C.T.D.,
no. IMM-899-95), Simpson,
March 26, 1996. Reported: Bhajan v. Canada (Minister of Citizenship
and Immigration) (1996), 34 Imm.
L.R. (2d) 189 (F.C.T.D.).
- Biney, Alexander v. M.C.I.
(IAD
M93-10425), Angé, September 27, 1994.
- Braganza, Margaret Mary v. M.C.I.
(F.C.T.D.,
no. IMM-2222-97), Muldoon,
April 14, 1998.
- Brar v. Canada (Minister of Employment and Immigration),
[1985] 1 F.C. 914
(C.A.).
- Brar, Pritam Singh v. M.E.I.
(IAD
V92-00108), Verma, Wlodyka, Gillanders, July 14, 1993.
- Burgin, Rachel Tessa v. M.C.I.
(F.C.T.D.,
no. IMM-1370-96), Noël,
January 15, 1997.
- Cardinal v. Director of Kent Institution, [1985] 2 S.C.R.
643.
- Chan v. Canada (Minister of Citizenship and Immigration),
[1996] 3 F.C. 349
(T.D.)
- Chan, Wah Fong v. M.C.I.
(F.C.T.D.,
no. IMM-4330-98), Muldoon,
August 11, 1999.
- Chandler v. Alberta Association of Architects, [1989] 2 S.C.R.
848.
- Chaudhari, Nusrat Jahan v. M.E.I.
(IAB M86-1436),
Brown, Julien, Blumer, February 22, 1988. Reported: Chaudhari v.
Canada (Minister of Employment and Immigration) (1988), 5 Imm.
L.R. (2d) 177 (IAB);.
- Cheema, Gurdial Kaur v. M.C.I.
(IAD
V97-01319), Carver, October 6, 1998.
- Cheema, Iqbal Singh v. M.C.I.
(F.C.T.D.,
no. IMM-2187-01), Gibson,
June 4, 2002; 2002 FCT 638.
- Chong, Chor Shan v. M.C.I.
(F.C.T.D.,
no. IMM-4038-00), McKeown,
December 4, 2001; 2001 FCT 1335.
- Dasent, Maria Jackie v. M.C.I.
(F.C.T.D.,
no. IMM-5386-93), Rothstein,
December 8, 1994.
- Dasent: M.C.I.
v. Dasent, Maria Jackie (F.C.A.,
no. A-18-95), Strayer, Linden,
McDonald, January 18, 1996.
- Davydenko: M.C.I.
v. Davydenko, Anna (F.C.T.D.,
no. IMM-1482-00), Pinard,
March 30, 2001.
- Dee, Dewey Go v. M.C.I.
(F.C.T.D.,
no. IMM-1050-99), MacKay,
February 18, 2000.
- Dhaliwal, Balwinder Kaur v. M.E.I.
(IAD
V91-01893), Wlodyka, Gillanders, Verma, January 7, 1993.
- Dhaliwal, Jagdish Kaur v. M.E.I.
(IAD
V91-01669), MacLeod, Wlodyka, Singh, March 29, 1993.
- Dhami, Tarlochan Singh v. M.C.I.,
(F.C.T.D.,
no. IMM-1528-00), Dawson,
July 18, 2001.
- Dhesi, Gurdev Singh v. M.C.I.
(F.C.T.D.,
no. IMM-3008-95), Dubé,
January 8, 1997.
- Dhillon, Karam Singh v. M.E.I.
(IAD
V91-00881), Wlodyka, Gillanders, Verma, October 23, 1992.
- Dhillon: S.G.C. v. Dhillon, Karam Singh (F.C.T.D.,
no. A-88-93), Rouleau, August
25, 1993.
- Farshid-Ghazi, Seyyed v. M.C.I.
(F.C.T.D.,
no. IMM-377-97), Richard,
February 12, 1998.
- Fei, Wan Chen v. M.C.I.
(F.C.T.D.,
no. IMM-741-96), Heald, June
30, 1997.
- Feng, Li Yuan v. M.C.I.
(IAD
T98-01390), D'Ignazio, January 21, 1999.
- Fonseka, Mario Antonio v. M.C.I.
(F.C.T.D.,
no. IMM-33-00), Rothstein,
October 18, 2000.
- Gao, Yude v. M.E.I.
(F.C.T.D.,
no. T-980-92), Dubé,
February 8, 1993. Reported: Gao v. Canada (Minister of Employment
and Immigration) (1993), 18 Imm.
L.R. (2d) 306 (F.C.T.D.).
- Gill v. Canada (Minister of Employment and Immigration),
[1984] 2 F.C. 1025
(C.A.).
- Gill, Bhajan Singh v. M.C.I.
(F.C.T.D.,
no. IMM-1116-98), McGillis,
February 17, 1999.
- Gill, Jhanda Singh v. M.E.I.
(F.C.T.D.,
no. T-501-90), Jerome, March
20, 1990.
- Gill, Paramjit Kaur v. S.S.C.
(IAD
T93-09697), Hopkins, August 25, 1994.
- Gill, Samarjit Kaur v. M.E.I.
(IAD
V93-00023), Singh, Clark, Ho, August 24, 1994.
- Gill: M.E.I.
v. Gill, Hardeep Kaur (F.C.A.,
no. A-219-90), Heald, Hugessen,
Stone, December 31, 1991.
- Grant, Retinella v. M.C.I.
(IAD
T98-02495), Buchanan, September 10, 1999.
- Gueye, Baboye v. M.C.I.
(IAD
M99-09302), Fortin, September 12, 2000 (reasons signed September 20,
2000).
- Haghighi v. Canada (Minister of Citizenship and Immigration),
[2000] 4 F.C. 407
(C.A.).
- Harelkin v. University of Regina, [1979] 2 S.C.R.
561.
- Ho, Hat v. M.C.I.
(F.C.T.D.,
no. IMM-516-98). Sharlow,
August 18, 1999.
- Hunter-Freeth, Eileen v. M.C.I.
(F.C.T.D.,
no. IMM-1795-95), Nadon,
February 7, 1996.
- Hussein, Safia Ahmed v. M.C.I.
(F.C.T.D.,
no. IMM-5151-98), Pelletier,
December 20, 1999.
- Idemudia, Andrew Osaretin v. M.E.I.
(F.C.T.D.,
no. IMM-3277-93), Rothstein,
June 30, 1993. Reported: Idemudia v. Canada (Minister of Employment
and Immigration) (1993), 19 Imm.
L.R. (2d) 267 (F.C.T.D.).
- Islam, Khondaker Rezaul v. M.C.I.
(F.C.T.D.,
no. IMM-22-99), Lemieux,
December 23, 1999.
- Jassal, Surinder Singh v. M.E.I.
(IAD
V91-01400), Gillanders, Wlodyka, Verma, March 7, 1993.
- Jones, Violet Eugenia v. M.E.I.
(IAB 87-10538),
Sherman, Weisdorf, Rotman, March 28, 1988.
- Kahlon, Darshan Singh v. M.E.I.
(F.C.A.,
no. A-115-86), Mahoney, Stone,
MacGuigan, February 6, 1989. Reported: Kahlon v. Canada (Minister
of Employment and Immigration) (1989), 7 Imm.
L.R. (2d) 91 (F.C.A.).
- Kam, Chi Keung v. M.C.I.
(F.C.T.D.,
no. IMM-1643-95), McKeown,
May 29, 1996.
- Kane v. U.B.C., [1980] 1 S.C.R.
1105.
- Kapadia, Muhammad Yakub v. M.C.I.
(F.C.T.D.,
no. IMM-1649-96), McGillis,
December 12, 1996.
- Kaur, Harwinder-Pal v. M.E.I.
(F.C.T.D.,
no. T-1852-87), Cullen, September
15, 1987. Reported: Kaur v. Canada (Minister of Employment and Immigration)
(1987), 5 Imm.
L.R. (2d) 148 (F.C.T.D.).
- Kaura, Surinder Kaur v. M.E.I.
(IAD
M92-10114), Blumer, February 1, 1994.
- Kaushal, Sushma Kumari v. M.E.I.
(IAB 86-9045),
Eglington, Warrington, Rotman, March 27, 1987.
- Kaushik, Uma v. M.C.I.
(IAD
W94-00003), Wiebe, October 18, 1994.
- Khakoo, Gulshan M. v. M.C.I.
(F.C.T.D.,
no. IMM-358-95), Gibson,
November 15, 1995.
- Kheiri, Shokoofeh v. M.C.I.
(F.C.T.D.,
no. IMM-4178-99), Linden,
August 29, 2000.
- Koudriachov, Valentine v. M.C.I.
(F.C.T.D.,
no. IMM-1218-98), Evans,
September 3, 1999
- Lai, Gui Sheng v. M.C.I.
(F.C.T.D.,
no. IMM-3229-98), Lemieux,
September 16, 1999.
- Li, Leung Lun v. M.C.I.
(F.C.T.D.,
no. IMM-466-96), Tremblay-Lamer,
September 30, 1998.
- Li, Quanyi v. M.C.I.
(F.C.T.D.,
no. IMM-3018-00), Teitelbaum,
July 5, 2001.
- Liang, Jian v. M.C.I.
(F.C.T.D.,
no. IMM-3014-98), Evans,
August 17, 1999.
- Lidder: Canada (Minister of Employment and Immigration) v. Lidder,
[1992] 2 F.C. 621;
16 Imm.
L.R. (2d) 241 (C.A.)
10-5
- Lovo, Julio Machado v. M.C.I.
(F.C.T.D.,
no. IMM-2694-94), MacKay,
September 22, 1995.
- Maire, Beata Jolanta v. M.C.I.
(F.C.T.D.,
no. IMM-5420-98), Sharlow,
July 28, 1999.
- Mancia, Pedro Benjamin Orellano v. M.C.I.
(F.C.A.,
no. A-75-97), Décary,
Stone, Robertson, May 1, 1998.
- Martineau v. Matsqui Institution Disciplinary Board, [1980]
1 S.C.R.
602.
- Martins, Oluwatoyin Joseph v. M.C.I.
(F.C.T.D.,
no. IMM-4849-00), Campbell,
February 21, 2002; 2002 FCT 189.
- Maschio, Michael John v. M.C.I.
(F.C.T.D.,
no. IMM-3354-96), Reed, November
14, 1997.
- Mengesha, Samuel v. M.C.I.
(F.C.T.D.,
no. IMM-3272-98), Nadon,
August 31, 1999.
- Mercado, Junilo Bonsol v. M.C.I.
(IAD
V99-01911), Workun, July 7, 2000.
- Merius, Ronald v. M.E.I.
(IAD
M93-05810), Angé, June 13, 1994.
- Mir-Hussaini, Seyed-Hasan v. M.C.I.
(F.C.T.D.,
no. IMM-5208-00), MacKay,
March 22, 2002; 2002 FCT 291.
- Mistry, Ratilal v. M.E.I.
(IAD
T93-09237), Bell, February 25, 1994.
- Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum
Board, [1994] 1 S.C.R.
202.
- Mohamed, Ismail v. M.C.I.
(IAD
M98-05434), Bourbonnais, June 8, 1999.
- Mooring v. Canada (National Parole Board), [1996] 1 S.C.R.
75.
- Muli, Surinderpal Singh v. M.E.I.
(IAD
V92-01376), Wlodyka, December 2, 1993.
- Muliadi v. Canada (Minister of Employment and Immigration),
[1986] 2 F.C. 205
(C.A.).
- Newfoundland Telephone Co. Ltd. v. Board of Commissioners of Public
Utilities, [1992] 1 S.C.R.
623.
- Nguyen, Luong Manh v. M.C.I.
(F.C.T.D.,
no. IMM-3538-94), Gibson,
October 6, 1995. Reported: Nguyen v. Canada (Minister of Citizenship
and Immigration) (1995), 31 Imm.
L.R. (2d) 46 (F.C.T.D.).
- Nikolova: M.C.I.
v. Nikolova, Velitchka (F.C.T.D.,
no. IMM-16-95), Wetston,
October 10, 1995.
- Nouranidoust v. Canada (Minister of Citizenship and Immigration),
[2000] 1 F.C. 123
(T.D.).
- Osaloun, Ebenezer Taiwo v. M.C.I.
(F.C.T.D.,
no. IMM-3649-95), Rothstein,
June 25, 1996.
- Ozdemir, Murtaza v. M.C.I.
(F.C.A.,
no. A-604-00), Evans, Rothstein,
Malone, November 1, 2001; 2001 F.C.A.
331.
- Paik, Oon-Gil v. M.C.I.
(F.C.T.D.,
no. IMM-611-95), Jerome,
September 13, 1996. Reported: Paik v. Canada (Minister of Citizenship
and Immigration) (1996), 35 Imm.
L.R. (2d) 52 (F.C.T.D.).
- Pangli, Amarjit Kaur v. M.E.I.
(F.C.A.,
no. A-597-86), Heald, Urie,
Desjardins, November 12, 1987. Reported: Pangli v. Canada (Minister
of Employment and Immigration) (1987), 4 Imm.
L.R. (2d) 266 (F.C.A.).
- Park, Jong In v. M.C.I.
(F.C.A.,
no. A-85-98), Strayer, Isaac,
Evans, May 24, 2001.
- Park, Soung II v. M.C.I.
(F.C.A.,
no. A-708-00), Malone, Linden,
Noël, October 19, 2001; 2001 F.C.A.
313.
- Patel, Chinubhai Madhavlal v. M.C.I.
(F.C.T.D.,
no. IMM-829-98), Tremblay-Lamer,
October 5, 1998.
- Patel, Manjulaben v. M.E.I.
(IAD
T89-03915), Townshend, Weisdorf, Chu, April 20, 1991.
- Persaud, Cyril v. M.E.I.
(IAD
T92-00690), Arpin, Goodspeed, Rayburn, April 20, 1993.
- Pierre-Paul, Jean-Pierre v. M.C.I.
(IAD
M93-09745), Durand, July 14, 1994.
- Porter: M.E.I.
v. Porter, Kathleen (F.C.A.,
no. A-353-87), Hugessen,
MacGuigan, Desjardins, April 14, 1988. 10-4, 10-11
- Posluns v. Toronto Stock Exchange, [1968] S.C.R.
330.
- Qi, E. Guang v. M.C.I.
(F.C.T.D.,
no. IMM-469-95), Reed, December
5, 1995. Reported: Qi v. Canada (Minister of Citizenship and Immigration)
(1995), 33 Imm.
L.R. (2d) 57 (F.C.T.D.).
- Qureshi, Azra Batool v. M.C.I.
(F.C.T.D.,
no. IMM-5093-99), Tremblay-Lamer,
August 18, 2000.
- Ramdelall, Nandrani v. M.C.I.
(F.C.T.D.,
no. IMM-4112-97), Wetston,
August 28, 1998.
- Redman, Barbara Engreed v. M.C.I.
(F.C.T.D.,
no. IMM-5109-97), Rothstein,
October 23, 1998.
- Rodriguez, Meliton v. M.E.I.
(IAD
T91-00107), Weisdorf, Fatsis, Ariemma, August 8, 1991.
- Samra, Avtar Kaur v. M.E.I.
(IAD
V90-01073), Tisshaw, Wlodyka, Chu, September 23, 1991.
- Santos, Natalia Duque v. M.C.I.
(F.C.T.D.,
no. IMM-4990-00), Lutfy,
April 30, 2002; 2002 FCT 494.
- Savin, Valeria v. M.C.I.
(F.C.T.D.,
no. IMM-4712-94), Cullen,
October 11, 1995. Reported: Savin v. Canada (Minister of Citizenship
and Immigration) (1995), 35 Imm.
L.R. (2d) 122 (F.C.T.D.).
- Scislowicz, Renata v. M.C.I.
(F.C.T.D.,
no. IMM-3528-98), Heneghan,
June 22, 2000.
- Sebai, Mustafa v. M.C.I.
(F.C.T.D.,
no. IMM-4565-98), Sharlow,
October 12, 1999.
- Shah, Syed v. M.E.I.
(F.C.A.,
no. A-617-92), Hugessen,
MacGuigan, Linden, June 24, 1994
- Sian, Malkit Kaur v. M.C.I.
(IAD
V95-00955), McIsaac, January 20, 1997.
- Silion, Loredana v. M.C.I.
(F.C.T.D.,
no. IMM-5288-98), MacKay,
August 18, 1999.
- Singh, Gurmit v. M.C.I.
(F.C.T.D.,
no. IMM-4962-94), Simpson,
December 21, 1995.
- Singh, Narinder Pal v. M.C.I.
(IAD
T97-04679), D'Ignazio, September 27, 1999.
- So, King-Sing v. M.E.I.
(F.C.T.D.,
no. IMM-7542-93), Rouleau,
March 22, 1995.
- Song, Nian Shen v. M.C.I.
(F.C.T.D.,
no. IMM-115-98), Tremblay-Lamer,
October 5, 1998.
- Stephen, Lau Ting Ming v. M.C.I.
(F.C.T.D.,
no. IMM-5953-00), Blanchard,
November 15, 2001.
- Symmonds, Lorraine Shirley v. M.E.I.
(IAD
V91-00440), MacLeod, Wlodyka, Verma, February 25, 1992.
- Tam, Mi Yee v. M.C.I.
(F.C.T.D.,
no. IMM-5138-94), Simpson,
October 25, 1995. Reported: Tam v. Canada (Minister of Citizenship
and Immigration) (1995), 35 Imm.
L.R. (2d) 201 (F.C.T.D.).
- Tam, Patrick v. M.C.I.
(F.C.T.D.,
no. IMM-3276-95), Rouleau,
September 16, 1996. Reported: Tam v. Canada (Minister of Citizenship
and Immigration) (1996), 35 Imm.
L.R. (2d) 207 (F.C.T.D.).
- Tchassovnikov, Igor v. M.C.I.
(F.C.T.D.,
no. IMM-5335-97), Campbell,
July 31, 1998.
- Tham, Aurora Kok v. M.E.I.
(IAB 83-6793),
Suppa, Benedetti, Hlady, May 24, 1985.
- Tham: M.E.I.
v. Tham, Aurora Kok (F.C.A.,
no. A-756-86), Hugessen,
Marceau, Urie, September 19, 1986
. 10-9, 10-13
- Tran, Vu Son v. M.C.I.
(F.C.T.D.,
no. IMM-850-00), Rothstein,
August 20, 2001.
- Tu, Hue Mai v. M.C.I.
(IAD
VA0-01083), Boscariol, February 28, 2001.
- Valle, Carlos Arno v. M.C.I.
(IAD
VA0-01218), Clark, May 28, 2001.
- Viches, Nelly v. M.C.I.
(F.C.T.D.,
no. IMM-6436-00), McKeown,
December 12, 2001; 2001 FCT 1366.
- Wang, Tianming v. M.C.I.
(F.C.T.D.,
no. IMM-6828-98), Pelletier,
August 20, 1999.
- Wong, Ching Shin Henry v. M.C.I.
(F.C.T.D.,
no. IMM-3366-96), Reed,
January 14, 1998
- Wong, Yuen-Lun v. M.C.I.
(F.C.T.D.,
no. IMM-2882-94), Gibson,
September 29, 1995.
- Xu, Tong v. M.C.I.
(F.C.T.D.,
no. IMM-4988-98), Gibson,
July 28, 1999.
- Yang: M.E.I.
v. Yang, Li (F.C.A.,
no. A-169-89), Mahoney, Urie,
Stone, May 22, 1990.
- Yogeswaran, Thiyagarajah v. M.C.I.
(F.C.T.D.,
no. IMM-1505-96), McKeown,
April 17, 1997.
- Yuan, Liping v. M.C.I.
(F.C.T.D.,
no. IMM-3792-00), Kelen,
December 11, 2001.
- Yung, Mei-Hing v. M.C.I.
(F.C.T.D.,
no. IMM-2753-99), Reed, June
19, 2000.
- Zhang, Fang v. M.C.I.
(F.C.T.D.,
no. IMM-4179-98), Tremblay-Lamer,
March 18, 1999.
- Zhao, Qin v. M.C.I.
(F.C.T.D.,
no. IMM-4384-98), Pinard,
June 8, 1999.
- Zheng, Tiantong v. M.C.I.
(F.C.T.D.,
no. IMM-1982-98), Reed, August
27, 1999.
- Cardinal v. Director of Kent Institution,
[1985] 2 S.C.R.
643.
- Martineau v. Matsqui Institution Disciplinary
Board, [1980] 1 S.C.R.
602, at 631.
- Hunter-Freeth, Eileen v. M.C.I.
(F.C.T.D.,
no. IMM-1795-95), Nadon,
February 7, 1996. The requirements of fairness in processing requests
for exemption have been characterized as minimal in Shah, Syed v.
M.E.I.
(F.C.A.,
no. A-617-92), Hugessen,
MacGuigan, Linden, June 24, 1994. However, the Supreme Court of Canada
in Baker v. Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R.
817 disapproved of Shah 's characterization of the duty of
fairness as "minimal", in holding that the circumstances require
a full and fair consideration of the issues, and the applicant must
have a meaningful opportunity to present relevant evidence and have
it fully and fairly considered. Evidence of the best interests of the
child is to be accorded significant weight: Baker, Agneta v. M.C.I.
(F.C.T.D.,
no. IMM-1154-00), McKeown,
April 23, 2001.
- Baker, supra, footnote 3.
- Pangli, Amarjit Kaur v. M.E.I.
(F.C.A.,
no. A-597-86), Heald, Urie,
Desjardins, November 12, 1987. Reported: Pangli v. Canada (Minister
of Employment and Immigration) (1987), 4 Imm.
L.R. (2d) 266 (F.C.A.).
- See Rodriguez, Meliton v. M.E.I.
(IAD
T91-00107), Weisdorf, Fatsis, Ariemma, August 8, 1991; Merius, Ronald
v. M.E.I.
(IAD
M93-05810), Angé, June 13, 1994; Biney, Alexander v. M.C.I.
(IAD
M93-10425), Angé, September 27, 1994; and Kaura, Surinder
Kaur v. M.E.I.
(IAD
M92-10114), Blumer, February 1, 1994. However, in Patel, Manjulaben
v. M.E.I.
(IAD
T89-03915), Townshend, Weisdorf, Chu, April 20, 1991, Pangli
was distinguished, and the panel relied on Brar v. Canada (Minister
of Employment and Immigration), [1985] 1 F.C.
914 (C.A.) to conclude
that a sponsor cannot invoke section 2(e) of the Canadian Bill of
Rights (the right to a fair hearing) because the refusal does not
involve a determination of the sponsor's rights (at least where the
refusal results from the inability of the applicant, not the sponsor,
to meet the statutory requirements).
- Dasent, Maria Jackie v. M.C.I.
(F.C.T.D.,
no. IMM-5386-93), Rothstein,
December 8, 1994.
- Lovo, Julio Machado v. M.C.I.
(F.C.T.D.,
no. IMM-2694-94), MacKay,
September 22, 1995. In Maire, Beata Jolanta v. M.C.I.
(F.C.T.D.,
no. IMM-5420-98), Sharlow,
July 28, 1999, the officer's decision was set aside for reliance on
extrinsic evidence in the form of notes of various officials regarding
the applicant.
- Shah, supra, footnote 3, at 2.
- M.C.I.
v. Dasent, Maria Jackie (F.C.A.,
no. A-18-95), Strayer, Linden,
McDonald, January 18, 1996.
- Ramdelall, Nandrani v. M.C.I.
(F.C.T.D.,
no. IMM-4112-97), Wetston,
August 28, 1998.
- Mancia, Pedro Benjamin Orellano v. M.C.I.
(F.C.A.,
no. A-75-97), Décary,
Stone, Robertson, May 1, 1998. This decision was rendered in the context
of a post-determination review of a failed refugee claimant. See also
Farshid-Ghazi, Seyyed v. M.C.I.
(F.C.T.D.,
no. IMM-377-97), Richard,
February 12, 1998, the Court holding that where an immigration officer
relies on publicly available evidence that is not commonly available
or commonly consulted, it should be disclosed.
- Haghighi v. Canada (Minister of Citizenship
and Immigration), [2000] 4 F.C.
407 (C.A.) (failure
to disclose content of risk assessment at h & c interview). The
Court relied on Baker, supra, footnote 3 and set out what factors
need to be considered in determining whether disclosure is required.
See also Bhagwandass v. Canada (Minister of Citizenship and Immigration),
[2001] 3 F.C. 3 (C.A.)
(requiring disclosure of documents supporting Minister's danger opinion).
- By Bill C-44 (S.C.
1995, c. 15; in force July 10, 1995).
- Symmonds, Lorraine Shirley v. M.E.I.
(IAD
V91-00440), MacLeod, Wlodyka, Verma, February 25, 1992.
- Dhaliwal, Jagdish Kaur v. M.E.I.
(IAD
V91-01669), MacLeod, Wlodyka, Singh, March 29, 1993; relying on M.E.I.
v. Gill, Hardeep Kaur (F.C.A.,
no. A-219-90), Heald, Hugessen,
Stone, December 31, 1991. See also Wong, Yuen-Lun v. M.C.I.
(F.C.T.D.,
no. IMM-2882-94), Gibson,
September 29, 1995, holding that the burden is on an applicant to demonstrate
rehabilitation.
- Bill C-44 amended section 121 of the Act to allow
the Minister to delegate the decision-making authority on rehabilitation.
The Minister's authority has been delegated, among others, to program
managers of visa offices, to grant approval of rehabilitation under
section 19(2)(a.1) of the Act (see Delegation Instrument I-53, dated
July 20, 1995). See also the discussion in chapter 2, "Criminal
Refusals," section 2.4.
- For example, the Federal Court held in Singh,
Gurmit v. M.C.I.
(F.C.T.D.,
no. IMM-4962-94), Simpson,
December 21, 1995 that the more than two year delay between the interview
and notification of the decision was unacceptable in the circumstances
and for this and other reasons, set aside the visa officer's decision.
However, the Federal Court in Chong, Chor Shan v. M.C.I.
(F.C.T.D.,
no. IMM-4038-00), McKeown,
December 4, 2001; 2001 FCT 1335 distinguished Singh and found
thatwhile there was delay in assigning an experienced visa officer to
conduct background checks on suspected Triad members, it was necessary
to complete the background checks and it did not constitute unreasonable
delay. That case started in 1994 and the applicant was requested in
1996 to provide certain information and no decision was made for four
years subsequent to that request.
- Jones, Violet Eugenia v. M.E.I.
(IAB 87-10538),
Sherman, Weisdorf, Rotman, March 28, 1988.
- M.E.I.
v. Porter, Kathleen (F.C.A.,
no. A-353-87), Hugessen,
MacGuigan, Desjardins, April 14, 1988; Chaudhari, Nusrat Jahan v.
M.E.I.
(IAB 86-1436),
Brown, Julien, Blumer, February 22, 1988. Reported: Chaudhari v.
Canada (Minister of Employment and Immigration) (1988), 5 Imm.
L.R. (2d) 177 (IAB);
Persaud, Cyril v. M.E.I.
(IAD
T92-00690), Arpin, Goodspeed, Rayburn, April 20, 1993.
- Kaushal, Sushma Kumari v. M.E.I.
(IAB 86-9045),
Eglington, Warrington, Rotman, March 27, 1987.
- Gill v. Canada (Minister of Employment and
Immigration), [1984] 2 F.C.
1025 (C.A.), at
1028-1029.
- In Baker, supra, footnote 3, the Supreme
Court of Canada held that the Convention on the Rights of the Child
did not give rise to a legitimate expectation regarding the applicant's
request for compassionate or humanitarian exemption.
- For example, "legitimate expectations"
has been applied to require the Minister to consider a person's refugee
claim after such consideration had been promised: M.E.I.
v. Bendahmane, Mokhtar (F.C.A.,
no. A-84-87), Hugessen, Desjardins,
Marceau, April 10, 1989. See also Martins, Oluwatoyin Joseph v.
M.C.I.
(F.C.T.D.,
no. IMM-4849-00), Campbell,
February 21, 2002; 2002 FCT 189; Badejo, Olayemi Anne v. M.C.I.
(F.C.T.D.,
no. IMM-1341-00), O'Keefe,
November 30, 2000 (undertaking to write letter was breached). However,
the publication and distribution of the Handbook on behalf of the Minister
does not give rise to a legitimate expectation that an applicant can
rely on the Handbook without requesting material that might modify it
in a manner relevant to his application: Park, Soung II v. M.C.I.
(F.C.A.,
no. A-708-00), Malone, Linden,
Noël, October 19, 2001; 2001 F.C.A.
313. Appeal from (F.C.T.D.,
no. IMM-2788-99), Gibson,
November 2, 2000.
- For example, a statutory requirement regarding
age: Canada (Minister of Employment and Immigration) v. Lidder,
[1992] 2 F.C. 621;
16 Imm.
L.R. (2d) 241 (C.A.);
M.C.I.
v. Nikolova, Velitchka (F.C.T.D.,
no. IMM-16-95), Wetston,
October 10, 1995.
- Chan, Wah Fong v. M.C.I.
(F.C.T.D.,
no. IMM-4330-98), Muldoon,
August 11, 1999.
- Newfoundland Telephone Co. Ltd. v. Board
of Commissioners of Public Utilities, [1992] 1 S.C.R.
623.
- Idemudia, Andrew Osaretin v. M.E.I.
(F.C.T.D.,
no. IMM-3277-93), Rothstein,
June 30, 1993. Reported: Idemudia v. Canada (Minister of Employment
and Immigration) (1993), 19 Imm.
L.R. (2d) 267 (F.C.T.D.).
- Mohamed, Ismail v. M.C.I.
(IAD
M98-05434), Bourbonnais, June 8, 1999.
- Arthur, Gertrude v. M.E.I.
(F.C.A.,
no. A-991-90), MacGuigan,
Linden, Gray, November 2, 1992. There was no reasonable fear of partiality
where an officer conducted two risk assessments concerning the applicants:
Qureshi, Azra Batool v. M.C.I.
(F.C.T.D.,
no. IMM-5093-99), Tremblay-Lamer,
August 18, 2000.
- Dhami, Tarlochan Singh v. M.C.I.,
(F.C.T.D.,
no. IMM-1528-00), Dawson,
July 18, 2001.
- So, King-Sing v. M.E.I.
(F.C.T.D.,
no. IMM-7542-93), Rouleau,
March 22, 1995. However, questioning the applicants in a cold manner
and accusing them of living on the government's money was not sufficient
to create a reasonable apprehension of bias: Khakoo, Gulshan M.
v. M.C.I.
(F.C.T.D.,
no. IMM-358-95), Gibson,
November 15, 1995. Neither was an officer's suspicion that an applicant
may be a courier parent: Kapadia, Muhammad Yakub v. M.C.I.
(F.C.T.D.,
no. IMM-1649-96), McGillis,
December 12, 1996; or a strong opposition to false claims: Mengesha,
Samuel v. M.C.I.
(F.C.T.D.,
no. IMM-3272-98), Nadon,
August 31, 1999. On the other hand, a generalized criticism of the breathing
habits of an ethnic group gave rise to an apprehension of bias: Zhao,
Qin v. M.C.I.
(F.C.T.D.,
no. IMM-4384-98), Pinard,
June 8, 1999, as did stereotyping and lack of an open mind: Baker,
supra, footnote 3; Yuan, Liping v. M.C.I.
(F.C.T.D.,
no. IMM-3792-00), Kelen,
December 11, 2001.
- Pangli, supra, footnote 5. Pangli
was followed in Dhaliwal, Balwinder Kaur v. M.E.I.
(IAD
V91-01893), Wlodyka, Gillanders, Verma, January 7, 1993; and Pierre-Paul,
Jean-Pierre v. M.C.I.
(IAD
M93-09745), Durand, July 14, 1994. With regard to an application to
an immigration officer for compassionate/humanitarian consideration,
the fact that one officer conducted the interview and her superior made
the decision did not breach the principle of "he who hears must
decide": Burgin, Rachel Tessa v. M.C.I.
(F.C.T.D.,
no. IMM-1370-96), Noël,
January 15, 1997. To the same effect, see Ho, Hat v. M.C.I.
(F.C.T.D.,
no. IMM-516-98). Sharlow,
August 18, 1999, distinguishing Braganza, Margaret Mary v. M.C.I.
(F.C.T.D.,
no. IMM-2222-97), Muldoon,
April 14, 1998. There is no duty to hold a hearing in these circumstances
and it is not a breach of fairness for the visa officer to interview
and recommend and the program manager to make the final decision. Although
there might be circumstances in which one officer interviews and another
officer refuses without there being a denial of fairness, where the
case involved a sponsorship of a family member, the interview was an
important factor in the officer's decision and it was unfair for the
refusing officer to have regard to facts that emerged during the interview
which was conducted by another officer: Gueye, Baboye v. M.C.I.
(IAD
M99-09302), Fortin, September 12, 2000 (reasons signed September 20,
2000). However, where the officer did not simply accept the interviewing
officer's recommendation but made an independent decision on the evidence,
there was no denial of natural justice: Mercado, Junilo Bonsol v.
M.C.I.
(IAD
V99-01911), Workun, July 7, 2000. It is open to the Appeal Division
to conclude that an officer's decision is weakened by the fact that
it was based on third party observations: M.C.I.
v. Davydenko, Anna (F.C.T.D.,
no. IMM-1482-00), Pinard,
March 30, 2001.
- Brar, Pritam Singh v. M.E.I.
(IAD
V92-00108), Verma, Wlodyka, Gillanders, July 14, 1993.
- Chan v. Canada (Minister of Citizenship and
Immigration), [1996] 3 F.C.
349 (T.D.). For example, it is not unfair to consult the notes and rejection
letter of a previous visa officer: Ahmed, Mohammed v. M.C.I.
(F.C.T.D.,
no. IMM-2828-98), Tremblay-Lamer,
April 16, 1999, or to consult with a colleague about a case: Song,
Nian Shen v. M.C.I.
(F.C.T.D.,
no. IMM-115-98), Tremblay-Lamer,
October 5, 1998. However, it was a breach of fairness for the deciding
officer to have unduly relied on the interview notes of another officer:
Patel, Chinubhai Madhavlal v. M.C.I.
(F.C.T.D.,
no. IMM-829-98), Tremblay-Lamer,
October 5, 1998.
- Muliadi v. Canada (Minister of Employment
and Immigration), [1986] 2 F.C.
205 (C.A.).
- Gill, Jhanda Singh v. M.E.I.
(F.C.T.D.,
no. T-501-90), Jerome, March
20, 1990. See Wang, Tianming v. M.C.I.
(F.C.T.D.,
no. IMM-6828-98), Pelletier,
August 20, 1999 for a review of the case-law dealing with the question
of when an applicant is entitled to be confronted with a discrepancy.
Anonymous letters prejudicial to an applicant should be disclosed: Redman,
Barbara Engreed v. M.C.I.
(F.C.T.D.,
no. IMM-5109-97), Rothstein,
October 23, 1998.
- Tam, Patrick v. M.C.I.
(F.C.T.D.,
no. IMM-3276-95), Rouleau,
September 16, 1996. Reported: Tam v. Canada (Minister of Citizenship
and Immigration) (1996), 35 Imm.
L.R. (2d) 207 (F.C.T.D.).
In Khakoo, supra, footnote 32, there was no onus on the officer
to notify the applicants that social assistance was potentially a source
of concern as they should have been prepared to deal with it at the
interview without special notice. There is no obligation to inform an
applicant of negative impressions as they arise, particularly concerning
some aspect which is not amenable to change, such as personal suitability
or language ability: Savin, Valeria v. M.C.I.
(F.C.T.D.,
no. IMM-4712-94), Cullen,
October 11, 1995. Reported: Savin v. Canada (Minister of Citizenship
and Immigration) (1995), 35 Imm.
L.R. (2d) 122 (F.C.T.D.).
However, there may be a duty to explore whether other documentation
establishes the relationship in question, where a promised document
cannot be furnished: Lai, Gui Sheng v. M.C.I.
(F.C.T.D.,
no. IMM-3229-98), Lemieux,
September 16, 1999.
- Mir-Hussaini, Seyed-Hasan v. M.C.I.
(F.C.T.D.,
no. IMM-5208-00), MacKay,
March 22, 2002; 2002 FCT 291.
- Zheng, Tiantong v. M.C.I.
(F.C.T.D.,
no. IMM-1982-98), Reed, August
27, 1999.
- Dee, Dewey Go v. M.C.I.
(F.C.T.D.,
no. IMM-1050-99), MacKay,
February 18, 2000. See too Chong, supra, footnote 18.
- Tam, Mi Yee v. M.C.I.
(F.C.T.D.,
no. IMM-5138-94), Simpson,
October 25, 1995. Reported: Tam v. Canada (Minister of Citizenship
and Immigration) (1995), 35 Imm.
L.R. (2d) 201 (F.C.T.D.);
Gill, Bhajan Singh v. M.C.I.
(F.C.T.D.,
no. IMM-1116-98), McGillis,
February 17, 1999.
- M.E.I.
v. Yang, Li (F.C.A.,
no. A-169-89), Mahoney, Urie,
Stone, May 22, 1990.
- Dhesi, Gurdev Singh v. M.C.I.
(F.C.T.D.,
no. IMM-3008-95), Dubé,
January 8, 1997. The duty of fairness does not require the officer to
ask specific questions (whether the applicant had ever been refused
a visa was sufficient): Zhang, Fang v. M.C.I.
(F.C.T.D.,
no. IMM-4179-98), Tremblay-Lamer,
March 18, 1999.
- Paik, Oon-Gil v. M.C.I.
(F.C.T.D.,
no. IMM-611-95), Jerome,
September 13, 1996. Reported: Paik v. Canada (Minister of Citizenship
and Immigration) (1996), 35 Imm.
L.R. (2d) 52 (F.C.T.D.).
- Tran, Vu Son v. M.C.I.
(F.C.T.D.,
no. IMM-850-00), Rothstein,
August 20, 2001. But the officer may not simply reject the documents'
authenticity without examining the actual documents submitted.
- Gao, Yude v. M.E.I.
(F.C.T.D.,
no. T-980-92), Dubé,
February 8, 1993. Reported: Gao v. Canada (Minister of Employment
and Immigration) (1993), 18 Imm.
L.R. (2d) 306 (F.C.T.D.).
- See the discussion in chapter 3, "Medical
Refusals", section 3.3.1.3., "Duty of Fairness Owed by Visa
and Medical Officers."
- Yogeswaran, Thiyagarajah v. M.C.I.
(F.C.T.D.,
no. IMM-1505-96), McKeown,
April 17, 1997. In Wong, Ching Shin Henry v. M.C.I.
(F.C.T.D.,
no. IMM-3366-96), Reed, January
14, 1998, the Court commented that the fairness letter should have provided
for the submission of information concerning the excessive demand aspect
of the medical opinion. However, in Koudriachov, Valentine v. M.C.I.
(F.C.T.D.,
no. IMM-1218-98), Evans,
September 3, 1999, Wong was distinguished; there was nothing
to prevent the applicant from responding on the "excessive demand"
issue since the fairness letter set out the services that might be required.
- Fei, Wan Chen v. M.C.I.
(F.C.T.D.,
no. IMM-741-96), Heald, June
30, 1997.
- Li, Leung Lun v. M.C.I.
(F.C.T.D.,
no. IMM-466-96), Tremblay-Lamer,
September 30, 1998. See also Maschio, Michael John v. M.C.I.
(F.C.T.D.,
no. IMM-3354-96), Reed, November
14, 1997 (applicant unaware of criteria being applied to assess his
medical condition and no fairness letter sent with respect to a second
medical notification). Maschio was distinguished in Koudriachov,
supra, footnote 49.
- Wong, Ching Shin Henry, supra, footnote
49.
- Mistry, Ratilal v. M.E.I.
(IAD
T93-09237), Bell, February 25, 1994.
- Tham: M.E.I.
v. Tham, Aurora Kok (F.C.A.,
no. A-756-86), Hugessen,
Marceau, Urie, September 19, 1986.
- Tham, Aurora Kok v. M.E.I.
(IAB 83-6793),
Suppa, Benedetti, Hlady, May 24, 1985.
- See also Xu, Tong v. M.C.I.
(F.C.T.D.,
no. IMM-4988-98), Gibson,
July 28, 1999, where the preparation of a rejection letter in advance
of the interview was seen as a fettering of discretion giving rise to
a reasonable apprehension of bias.
- Liang, Jian v. M.C.I.
(F.C.T.D.,
no. IMM-3014-98), Evans,
August 17, 1999. The Court found that no such request had been made,
therefore, there was no breach of fairness; and in the alternative,
the record would satisfy a fair-minded person why the particular request
for exemption on compassionate or humanitarian grounds was refused.
See however Santos, Natalia Duque v. M.C.I.
(F.C.T.D.,
no. IMM-4990-00), Lutfy,
April 30, 2002; 2002 FCT 494 (form letter so general as to have no meaning
for the applicant). Reasons are not required to be as detailed as would
be expected of an administrative tribunal rendering a decision after
an adjudicative hearing: Ozdemir, Murtaza v. M.C.I.
(F.C.A.,
no. A-604-00), Evans, Rothstein,
Malone, November 1, 2001; 2001 F.C.A.
331 (not required to comment on case specific documents).
- Baker, supra, footnote 3. In the particular
case, the immigration officer's notes were held to constitute sufficient
reasons.
- Viches, Nelly v. M.C.I.
(F.C.T.D.,
no. IMM-6436-00), McKeown,
December 12, 2001; 2001 FCT 1366; Fonseka, Mario Antonio v. M.C.I.
(F.C.T.D.,
no. IMM-33-00), Rothstein,
October 18, 2000.
- Baker, supra, footnote 3; Stephen,
Lau Ting Ming v. M.C.I.
(F.C.T.D.,
no. IMM-5953-00), Blanchard,
November 15, 2001. See also Silion, Loredana v. M.C.I.
(F.C.T.D.,
no. IMM-5288-98), MacKay,
August 18, 1999 (no requirement for personal interview of employment
authorization applicant).
- Kaur, Harwinder-Pal v. M.E.I.
(F.C.T.D.,
no. T-1852-87), Cullen, September
15, 1987. Reported: Kaur v. Canada (Minister of Employment and Immigration)
(1987), 5 Imm.
L.R. (2d) 148 (F.C.T.D.).
- Nguyen, Luong Manh v. M.C.I.
(F.C.T.D.,
no. IMM-3538-94), Gibson,
October 6, 1995. Reported: Nguyen v. Canada (Minister of Citizenship
and Immigration) (1995), 31 Imm.
L.R. (2d) 46 (F.C.T.D.).
The officer may opt not to conduct the interview via teleconference
or at a place in Canada: Scislowicz, Renata v. M.C.I.
(F.C.T.D.,
no. IMM-3528-98), Heneghan,
June 22, 2000.
- Chan, supra, footnote 35 (revoking visas
where new information comes to light). To the same effect, see Tchassovnikov,
Igor v. M.C.I.
(F.C.T.D.,
no. IMM-5335-97), Campbell,
July 31, 1998 (reconsideration of eligibility); Nouranidoust v.
Canada (Minister of Citizenship and Immigration), [2000] 1 F.C.
123 (T.D.) (reconsideration of landing under Deferred Removal Orders
Class (DROC) regulations where the applicant submitted new evidence);
and Islam, Khondaker Rezaul v. M.C.I.
(F.C.T.D.,
no. IMM-22-99), Lemieux,
December 23, 1999 (independent applicant); Kheiri, Shokoofeh v.
M.C.I.
(F.C.T.D.,
no. IMM-4178-99), Linden,
August 29, 2000 (re-opening to extend effective date of visa avoids
unduly technical and unnecessarily formal approach).
- Park, Jong In v. M.C.I.
(F.C.A.,
no. A-85-98), Strayer, Isaac,
Evans, May 24, 2001.
- Yung, Mei-Hing v. M.C.I.
(F.C.T.D.,
no. IMM-2753-99), Reed, June
19, 2000.
- Chan, supra, footnote 35. Thus, there
was no breach of fairness where counsel was asked to leave the interview:
Cheema, Iqbal Singh v. M.C.I.
(F.C.T.D.,
no. IMM-2187-01), Gibson,
June 4, 2002; 2002 FCT 638.
- Qi, E. Guang v. M.C.I.
(F.C.T.D.,
no. IMM-469-95), Reed, December
5, 1995. Reported: Qi v. Canada (Minister of Citizenship and Immigration)
(1995), 33 Imm.
L.R. (2d) 57 (F.C.T.D.).
While it was improper in the circumstances for the immigration office
not to have notified the applicant's lawyer's office of the applicant's
interview date, there was no breach of fairness as a result: Kam,
Chi Keung v. M.C.I.
(F.C.T.D.,
no. IMM-1643-95), McKeown,
May 29, 1996.
- Hussein, Safia Ahmed v. M.C.I.
(F.C.T.D.,
no. IMM-5151-98), Pelletier,
December 20, 1999.
- Bhajan, Hari v. M.C.I.
(F.C.T.D.,
no. IMM-899-95), Simpson,
March 26, 1996. Reported: Bhajan v. Canada (Minister of Citizenship
and Immigration) (1996), 34 Imm.
L.R. (2d) 189 (F.C.T.D.).
- Bensalah, Lekrim v. M.C.I.
(F.C.T.D.,
no. IMM-4907-98), Pinard,
August 13, 1999.
- Porter, supra, footnote 20.
- Pangli, supra, footnote 5.
- Tham, supra, footnote 54.
- Kaushal, supra, footnote 21.
- However, holding a visa officer's decision a
nullity due to unfairness is not the prevalent approach, as can be seen
in section 10.3.2., "Options."
- Pangli, supra, footnote 5.
- See, for example, Muli, Surinderpal Singh
v. M.E.I.
(IAD
V92-01376), Wlodyka, December 2, 1993. However, in Sian, Malkit
Kaur v. M.C.I.
(IAD
V95-00955), McIsaac, January 20, 1997, the panel went on to consider
the merits of the appeal, concluded that the applicants were immigrants
and accordingly allowed the appeal.
- Chandler v. Alberta Association of Architects,
[1989] 2 S.C.R.
848.
- Dhaliwal, Balwinder Kaur, supra, footnote
33. A lack of fairness in the process is sufficient to set the impugned
decision aside without the necessity of establishing actual prejudice
to the applicant: Kane v. U.B.C., [1980] 1 S.C.R.
1105.
- Newfoundland Telephone Co. Ltd., supra,
footnote 27.
- S.G.C. v. Dhillon, Karam Singh (F.C.T.D.,
no. A-88-93), Rouleau, August
25, 1993; reversing Dhillon, Karam Singh v. M.E.I.
(IAD
V91-00881), Wlodyka, Gillanders, Verma, October 23, 1992. For other
examples of the de novo approach, see Grant, Retinella
v. M.C.I.
(IAD
T98-02495), Buchanan, September 10, 1999; and Cheema, Gurdial Kaur
v. M.C.I.
(IAD
V97-01319), Carver, October 6, 1998.
- Where the visa officer had already arrived at
his decision to refuse before the interview and before all relevant
information had been submitted, which was a denial of natural justice,
nevertheless, the hearing de novo was proceeded with: Feng,
Li Yuan v. M.C.I.
(IAD
T98-01390), D'Ignazio, January 21, 1999. For case-law which stands for
the proposition that an appeal hearing which is tantamount to a new
trial cures any lack of natural justice at a lower level, see: Harelkin
v. University of Regina, [1979] 2 S.C.R.
561; and Posluns v. Toronto Stock Exchange, [1968] S.C.R.
330.
- Gill, Paramjit Kaur v. S.S.C.
(IAD
T93-09697), Hopkins, August 25, 1994.
- Kahlon, Darshan Singh v. M.E.I.
(F.C.A.,
no. A-115-86), Mahoney, Stone,
MacGuigan, February 6, 1989. Reported: Kahlon v. Canada (Minister
of Employment and Immigration) (1989), 7 Imm.
L.R. (2d) 91 (F.C.A.).
- Basi, Sukhdev Kaur v. M.E.I.
(IAD
V87-6043), Mawani, Chambers, Gillanders, March 20, 1989. See also Jassal,
Surinder Singh v. M.E.I.
(IAD
V91-01400), Gillanders, Wlodyka, Verma, March 7, 1993, where the Appeal
Division remarked on the sponsor's possession of the appeal record months
before the hearing, clearly making him aware of the case to be met.
- Atwal, Lakhbir Kaur v. M.E.I.
(IAD
V88-00152), MacLeod, Singh, Chambers, May 12, 1989.
- In this connection, see Mooring v. Canada
(National Parole Board), [1996] 1 S.C.R.
75, where the Supreme Court of Canada held that the National Parole
Board would be under a duty to exclude unreliable information, such
as information extracted by torture, for it would be manifestly unfair
for the Board to act on this kind of information.
- Mistry, supra, footnote 53.
- See also Gill, Samarjit Kaur v. M.E.I.
(IAD
V93-00023), Singh, Clark, Ho, August 24, 1994, the Appeal Division holding
that the de novo hearing would cure the procedural unfairness
caused by lack of proper interpretation at the visa interview.
- Samra, Avtar Kaur v. M.E.I.
(IAD
V90-01073), Tisshaw, Wlodyka, Chu, September 23, 1991.
- Symmonds, supra, footnote 15; Dhaliwal,
Jagdish Kaur, supra, footnote 16.
- Valle, Carlos Arno v. M.C.I.
(IAD
VA0-01218), Clark, May 28, 2001; Tu, Hue Mai v. M.C.I.
(IAD
VA0-01083), Boscariol, February 28, 2001.
- See, for example, Kaushik, Uma v. M.C.I.
(IAD
W94-00003), Wiebe, October 18, 1994. See also Singh, Narinder Pal
v. M.C.I.
(IAD
T97-04679), D'Ignazio, September 27, 1999, in which the panel held that
the sponsor had a legitimate expectation that certain new medical information
would be duly considered; where it was not, on this technical ground
involving breach of natural justice, the appeal was allowed in law.
- Tham, supra, footnote 55; affirmed in
Tham, supra, footnote 54.
- Cheema, supra, footnote 81.
- Cardinal, supra, footnote 1.
- Mobil Oil Canada Ltd. v. Canada-Newfoundland
Offshore Petroleum Board, [1994] 1 S.C.R.
202.
- See, for example, Osaloun, Ebenezer Taiwo
v. M.C.I.
(F.C.T.D.,
no. IMM-3649-95), Rothstein,
June 25, 1996 (judicial review dismissed in reliance on Mobil Oil,
where evidence unfairly excluded would have had no bearing on the tribunal's
decision); Sebai, Mustafa v. M.C.I.
(F.C.T.D.,
no. IMM-4565-98), Sharlow,
October 12, 1999 (no purpose would be served by remitting matter for
reconsideration); and Nikolova, supra, footnote 25 (Appeal
Division's decision set aside for breach of natural justice; but, following
Mobil Oil, not returned for rehearing because the merits of
the case were such that it would be hopeless); Ali, Nawal El v.
M.C.I.
(F.C.T.D.,
no. IMM-3327-00), Dawson,
April 27, 2001 (breach did not affect final decision of tribunal).
- The standard of review of a visa officer's decision
is reasonableness simpliciter: Li, Quanyi v. M.C.I.
(F.C.T.D.,
no. IMM-3018-00), Teitelbaum,
July 5, 2001; Cheema, supra, footnote 66. Unless the visa officer
acts in bad faith, breaches natural justice requirements or fails to
consider relevant evidence the Court should not intervene: Mir-Hussaini,
supra, footnote 39.
- Khakoo, supra, footnote 32.
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