Date: 19980615
Docket: IMM-2551-97
BETWEEN:
HUI ZHEN ZHANG,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] This is an application for judicial review of a decision of Namiji Stocks, an immigration officer, wherein it was determined that there existed insufficient humanitarian and compassionate grounds as required by subsection 114(2) of the Immigration Act1 ("Act") to warrant processing the Applicant"s application for permanent residence from within Canada.
[2] The Applicant came to Canada in September 1991. She claimed refugee status, but her claim was denied on April 22, 1992. Leave to appeal of the Board"s decision was dismissed by this Court on September 4, 1992.
[3] In June 1992, the RCMP advised the immigration authorities that the Applicant had an Interpol Red Circular issued against her. It appeared from the information contained in the circular that the Applicant had committed computer fraud in collusion with her fiancé and cousin, and as a result had embezzled 1.6 million RMB Yuan in cash from the Bank of Communications in Ningpo, China. The circular also specified that the Applicant was wanted on an arrest warrant issued on October 24, 1990, by the authorities in Ningpo.
[4] On the basis of these allegations, a section 27 report was written alleging that the Applicant had breached subparagraph 19(1)(c.1)(ii) of the Act.
[5] On May 7, 1994, the Applicant married a Canadian citizen, Dany Au Chi-Tin, and on October 15, 1994, she gave birth to their daughter.
[6] A month later, on November 14, 1994, she submitted an application for a visa exemption in order to have her application for permanent residence processed from within Canada based on humanitarian and compassionate considerations pursuant to subsection 114(2) of the Act.
[7] She was called in for an interview on April 27, 1995. At that time, a full marriage interview was conducted by Annette DeForge, an immigration officer. The Applicant was asked whether she had ever been charged or convicted of a criminal offence inside or outside Canada. The Applicant answered that before leaving China, she had been in trouble with the law as a result of her participation in a pro-democracy demonstration. No decision was made on the application at this time because of the possible inadmissibility pursuant to subparagraph 19(1)(c.1)(ii) of the Act.
[8] The file was then transferred to Namiji Stocks in October 1996. She re-interviewed the Applicant and her husband on January 9, 1997, and confronted the Applicant with the allegation that she was wanted for embezzlement in China. The Applicant denied any criminal involvement.
Although it was Ms. Stocks" opinion that the Applicant"s marriage was bona fide , no final decision was taken again due to the possibility of criminal inadmissibility.
[9] Ms. Stocks then took certain steps to further investigate the allegations contained in the Interpol report and in particular, the alleged warrant for arrest. On June 9, 1997, she received a copy of the warrant from the immigration office in Beijing. This warrant had the same number and date as the one referred to in the Interpol circular. Based on this evidence which confirmed the Interpol report, Ms. Stocks made a determination that the Applicant was criminally inadmissible by virtue of subparagraph 19(1)(c.1)(ii) and denied her application for permanent residence. The Applicant was informed of this decision on June 18, 1997.
[10] The Applicant now seeks to have Ms. Stocks" decision quashed on the ground that she breached her duty of fairness in that she did not inform the Applicant of the existence of the warrant for arrest obtained from the Chinese authorities prior to making her final determination, thereby never giving the Applicant an opportunity to make representations regarding this piece of evidence.
[11] In making a determination pursuant to subsection 114(2) of the Act, an immigration officer is under a duty to act fairly. The parameters of the officer"s duty of fairness were delineated by the Federal Court of Appeal in Shah v. Minister of Employment and Immigration .2 In that case, Hugessen J.A. for the Court held that the content of the duty of fairness in humanitarian and compassionate applications is minimal given that such decisions are essentially a matter within the discretion of the immigration officer. No hearing need be held and no written reasons need be given. However, Hugessen J.A. also clearly stated that "if "the decision-maker > is going to rely on extrinsic evidence, not brought forward by the applicant, she must give him a chance to respond to such evidence".3
[12] In Dasent v. Canada (Minister of Citizenship and Immigration),4 Rothstein J. further defined the meaning of the term "extrinsic evidence, not brought forward by the applicant". He held that the term referred to "evidence of which the applicant has no knowledge and on which the immigration officer intends to rely in making a decision affecting the applicant".5
[13] In the case at bar, even though the Applicant was not shown an actual copy of the arrest warrant, she was asked about the allegations of embezzlement against her in China and was given an opportunity to respond to them. Moreover, she was specifically asked if she knew the two individuals mentioned in the Interpol circular and if she knew anything about computers. Both were flatly denied. Furthermore, she denied that she had been involved in any criminal activity. The arrest warrant did not contain any new information that was not known by the Applicant. It cannot be said therefore that the immigration officer failed to comply with her duty of fairness.
[14] Consequently, the application for judicial review is dismissed.
[15] Neither counsel recommended certification of a question in this matter. Therefore, no question will be certified.
"Danièle Tremblay-Lamer"
JUDGE
OTTAWA, ONTARIO
June 15, 1998.
__________________2 (1995), 170 N.R. 238 (F.C.A.).
3 Ibid. at 239. See also Garcia v. Canada (Minister of Employment and Immigration), "1995 > 1 F.C. 791 (T.D.); Lovo et al v. Canada (Minister of Citizenship and Immigration) (1996), 102 F.T.R. 211 (T.D.); Amoateng v. Canada (Minister of Citizenship and Immigration) (1995), 90 F.T.R. 51 (T.D.); Adebayo v. Canada (Minister of Citizenship and Immigration) (1996), 104 F.T.R. 148 (T.D.).
4 "1995 > 1 F.C. 720 (T.D.), rev"d (1996), 107 F.T.R. 80 (F.C.A.). Rothstein J."s decision was reversed on appeal on the grounds that the evidence at issue was not extrinsic evidence within the meaning of Shah . Leave to appeal was denied by the Supreme Court of Canada on October 3, 1996.