Date: 20000926
Docket: IMM-4016-99
BETWEEN:
YAO ZHAO NING
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
DUBÉ J.:
[1] This application is for the judicial review of a decision of visa officer Susanna Ching ("the visa officer") dated July 9, 1999, wherein she refused the applicant's application for permanent residence on the basis that he did not comply with the requirements of subsection 9(3) of the Immigration Act1, ("the Act"):
| 9. (3) Duty to answer questions - Every person shall answer truthfully all questions put to that person by a visa officer and shall produce such documentation as may be required by the visa officer for the purpose of establishing that his admission would not be contrary to this Act or the regulations. |
1. Facts
[2] The applicant submitted his application for permanent residence in Canada on May 8, 1997. He is employed by the Nanjing Research Institute of Electronic Technology, a company which works with the military of China.
[3] He was interviewed on May 24, 1998. A CAIPS notes entry dated April 24, 1998, indicates that a background check must be sent through the Immigration Control Office unit. The entry dated April 28, 1998, shows that a memo with attachment was sent to CSIS Tokyo through the Immigration Control Office unit. Nothing on the file indicates the exact nature of the information sent. Another entry dated August 13, 1998, indicates that security and medicals are in order and the case is "ready for visa" ("RFV"). An interview was held on July 8, 1999, and it was conducted by a security officer from CSIS. The entry for July 9, 1999, indicates that the applicant "was extremely uncooperative and evasive and failed to respond to questions posed by SLO". The SLO is a security officer, as appears from the letter of the visa officer dated July 9, 1999.
[4] The visa officer denied the application on the grounds that the applicant did not provide required information at the interview and, therefore was found to have failed to comply with the requirements of subsection 9(3) that "every person shall answer truthfully all questions put to that person by a visa officer".
[5] In his affidavit, upon which he was not cross-examined, the applicant affirms that the SLO in question was not a visa officer but one Kim Taylor, a security officer from CSIS who did not ask him questions regarding his job duties related to his occupation. The questions sought sensitive information related to his employer, as follows:
| 15. Rather he wanted to know the following: |
| a) What was the organizational structure of my employer at the Nanjing Research Institute; and |
| b) Details of the number of names of its employees; and |
| c) He wanted to know the research strategies and direction taken by the company |
| d) He wanted to know which organizations used our company's products and the background of such organizations |
| e) He wanted to know whether the company used sensitive and intelligent techniques and technologies from foreign countries |
| f) He wanted to know how we used them. |
[6] In short, the CSIS security officer was conducting a background inquiry of his employer and not of the applicant. Consequently, the latter informed Mr. Taylor that he was not prepared to answer these questions. He told him that he had to abide by the laws of his country. Should he answer the questions, he would be gravely concerned with the safety and protection of his wife and children who were still in China. He does not know "why Canada asked me to become a spy for their intelligence and placed me in the most compromising position in my life".
[7] He did not refuse to answer any questions from the visa officer.
[8] In his record (filed December 16, 1999) the respondent concedes that the visa officer erred in refusing the applicant's application without making a proper assessment as to the admissibility of the applicant. In particular, the visa officer erred in making her decision without having received a recommendation from the SLO with respect to the admissibility of the applicant.
[9] On the basis of this error, the respondent consents to allowing the judicial review application as follows:
| (a) The matter will be referred back to a different visa officer for redetermination; |
| (b) The matter will be referred back on the basis that the selection criteria have already been met; |
| (c) The Applicant's medicals will need to be redone, since they expired in May, 1999; |
| (d) It will be necessary to re-interview the Applicant regarding admissibility. This will be limited to issues of security. |
[10] The respondent also submits that the applicant is correct that the abbreviation "RFV", means "Ready for Visa". He conceded that this was clearly an error, since no security decision had been entered into the CAIPS notes at that time.
2. Disposition
[11] The applicant no longer requests a direction from the Court that a visa be issued, but seeks an order for a writ of certiorari quashing the decision. As mentioned earlier, the respondent consents to allowing the judicial review application with four directions. I accept these conditions but I will add a fifth direction to the effect that the security officer and/or the visa officer be prohibited from asking questions to the applicant dealing with issues of security or intelligence matters related to the applicant's employer and/or the Government of China.
[12] Consequently, the application for judicial review is granted.
[13] At the end of the hearing, counsel for the respondent asked to deal with the issue of costs after my decision is rendered, presumably because the respondent has consented to allowing the judicial review and the applicant still proceeded with the hearing. If she still wishes to do so, she may file her written submissions within seven days of my decision. The applicant may file his submissions within the following seven days. The respondent may file her reply within the following five days.
[14] Both parties and the Court agree that there is no question of general importance to be certified in this matter.
OTTAWA, Ontario
September 26, 2000
Judge
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