Date: 20041008
Docket: IMM-2789-02
Citation: 2004 FC 1390
Ottawa, Ontario, this 8th day of October, 2004
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
JING LI AND IMMIGRATION NORTH AMERICA, INC.
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
SNIDER J.
[1] The Applicant, Jing Li, married Yonghui "Jesse" Zhou on October 27, 2000. Mr. Zhou is a permanent resident of Canada who sponsored his wife's application for permanent residence in Canada. As required by the Immigration Regulations, 1978 (the "Regulations"), Mr. Zhou, on February 14, 2001, filed an undertaking that he would reside in Canada exclusively and without interruption beginning on the date of giving an undertaking in respect of the application for landing until the member is granted landing in Canada. On May 25, 2001, Mr. Zhou was advised by an immigration officer that he
was qualified to sponsor his wife, and, on July 18, 2001, the Applicant submitted her Application for Permanent Residence in Canada.
[2] In February 2002, Mr. Zhou travelled to China. In March and April of 2002, during the course of assessment of the application, the Visa Officer responsible for the assessment determined that Mr. Zhou was not residing in Canada exclusively and without interruption, as he had undertaken, and as was required to be an eligible sponsor. Therefore, the Visa Officer concluded that Mr. Zhou did not fall within the definition of "sponsor" and did not qualify to sponsor his wife's application for permanent residence. The Applicant's application was refused on May 10, 2002. Mr. Zhou filed an appeal to the Immigration Appeal Division, which was subsequently withdrawn, and the Applicant filed this application for judicial review.
Issues
[3] This application raises the following issues:
a) Did the Visa Officer breach the rules of procedural fairness by failing to put her concerns about residency to Mr. Zhou prior to making her determination or by relying on extrinsic evidence not disclosed to Mr. Zhou?
b) Did the Visa Officer exceed her lawful jurisdiction in determining that Mr. Zhou did not meet the requirement of a "sponsor" due to his failure to reside "exclusively and without interruption" in Canada?
c) Did the Visa Officer err by concluding that residency required physical presence in Canada?
d) Given that Mr. Zhou had a right of appeal to the Immigration and Appeal Division ("IAD"), which he subsequently withdrew, has the Applicant fulfilled the obligation to exhaust the alternative remedy before bringing this application?
[4] Two preliminary issues were also raised and have been dealt with as follows:
1) Immigration North America Inc. does not have standing to be a party to this application.
2) While the affidavit of Priscilla Lee is not a personal affidavit of either the Applicant or Mr. Zhou, it will be allowed to stand but given little weight.
Analysis
Issue #1: Did the Visa Officer breach the rules of procedural fairness?
[5] It is clear from the records of the Respondent that the residency of Mr. Zhou was an issue for the Visa Officer. What is less clear, however, is whether that concern was ever communicated to Mr. Zhou or the Applicant. The Certified Tribunal Record contains no document where it was stated to Mr. Zhou, the Applicant or their counsel that the Visa Officer was concerned that Mr. Zhou was not fulfilling his undertaking of residency. While the record contains internal references to the two phone calls to Mr. Zhou's residence where the person answering the phone advised an immigration official that he would not return to the country until the end of 2002, it may be that the Applicant, Mr. Zhou or counsel were not advised that these calls had occurred.
[6] The Applicant submits that the Visa Officer acted contrary to the long-standing principle in Muliadi et al v. Minister of Employment and Immigration et al, (1986) 2 F.C. 205 (F.C.A.). In Muliadi, at para. 16, the Federal Court of Appeal adopted the views of Parker C.J. in H.K. (An infant), [1967] 2 Q.B. 617 at 630:
"...even if an immigration officer is not in a judicial or quasi-judicial capacity, he must at any rate give the immigrant an opportunity of satisfying him of the matters in the subsection, and for that purpose let
the immigrant know what his immediate impression is so that the immigrant can disabuse him."... That is not, as I see it, a question of acting or being requested to act judicially, but of being required to act fairly.
[7] In this case, the Applicant argues that she was not aware of either the Visa Officer's concerns or the phone calls that had been made to Mr. Zhou's residence.
[8] I agree that it would have been preferable for the Visa Officer to directly put the issue to the Applicant, Mr. Zhou or their counsel. However, it may be that, even though no direct communication is contained on the Record, the Applicant or Mr. Zhou or counsel had knowledge that the issue of residency was on the table. Given that neither Mr. Zhou nor the Applicant provided an affidavit, the Record must be examined to determine whether they were as unaware of the issue as the Applicant now alleges.
[9] The Visa Officer requested additional evidence from the parties, including Mr. Zhou's passport and Canadian income tax filings. This request evidently alerted counsel that residence was an issue; this is confirmed by an e-mail dated January 21, 2002 from counsel to Mr. Zhou stating the following:
Because income is not an issue for sponsoring spouses and because CPC Mississauga, not visa-posts, determine whether income requirements have been met, the officer cannot be making the request for your T-4's and notices-of-assessment for sponsorship purposes; rather, KWF appears to be trying to determine whether you remained in China after the Embassy refused to allow you to remain with your wife when it denied your request for an RRP. Hence the request for your passport; i.e., to see whether it shows return to China; and your tax records; i.e., to see whether you're in Canada. [emphasis added]
[10] While counsel may have been somewhat confused about the process, he clearly knew that residency was an issue. His failure to understand why it was an issue is not important; he knew that it was of concern to the Visa Officer. Accordingly, it was open to Mr. Zhou to provide further information supporting the application. There is nothing else on the record that addresses this issue. As noted, there is no affidavit evidence by the Applicant or Mr. Zhou. There also was no cross-examination of the Visa Officer on her affidavit. Accordingly, based on my review of the Record, I am satisfied that the affected parties were or ought to have been aware that residency was an issue for the Visa Officer.
[11] The phone calls to Mr. Zhou's residence in Canada ought to have been disclosed by the Visa Officer. However, I am not prepared to overturn the decision because of a failure to do so. Firstly, there is no evidence that Mr. Zhou or the Applicant were unaware that the calls had been made; no reliable affidavit evidence addresses that question. Secondly, the phone calls were not the only evidence before the Visa Officer that led her to question the residency of Mr. Zhou. Even without the phone calls, there is evidence supporting a conclusion that Mr. Zhou had not resided "exclusively and without interruption" as required by the definition of "sponsor".
[12] In conclusion on this issue, I am satisfied that there was no breach of the duty of fairness.
Issue #2: Did the Visa Officer exceed her lawful jurisdiction?
[13] The definition of "sponsor" under consideration is that contained in s. 2(1) of the Regulations. (The "Regulations" have now been replaced by the Immigration and Refugee Protection Regulations which have substantially changed the sponsorship requirements). Part (a) of the definition contains a requirement that the person who sponsors an application must satisfy "an immigration officer that the person will reside in Canada exclusively and without interruption beginning on the date of giving an undertaking in respect of the application for landing until the member is granted landing in Canada" [emphasis added]. Part (b) of the definition applies to Canadian citizens and is not an issue here. A person is authorized to sponsor the application for landing upon fulfilment of a number of requirements, including giving an undertaking (Regulations, s. 5(2)).
[14] The general scheme for sponsorship applications appears to have been, at the relevant time, that the sponsor would provide the undertaking and be assessed by an immigration officer. This initial processing was done for Mr. Zhou at the Case Processing Centre in Mississauga and, in a letter dated May 25, 2001, he was advised that he met the requirements for eligibility as a sponsor. In the same letter, Mr. Zhou was told that his undertaking was being forwarded to the Visa Office in Beijing and that the person being
sponsored must complete an Application for Permanent Residence and send that form to the Visa Office.
[15] The Applicant submits that the Visa Officer exceeded her jurisdiction when she usurped the role of the Immigration Officer "MAX" who had previously found Mr. Zhou to have met the requirements for eligibility as a sponsor. Particularly, the Applicant notes that part (a) of the definition stipulates that the sponsor must satisfy "an immigration officer" that the individual is an eligible sponsor; and that a visa officer is not an "immigration officer". The Applicant points to part (b) of the definition that refers to a visa officer, thereby inferring that the two functions must be kept separate.
[16] I do not agree. I note that the Visa Officer is an immigration officer within the meaning of the Immigration Act (s. 2(1)) where a visa officer is defined as an "immigration officer stationed outside Canada . . . " Thus, on a plain reading of part (a) of the definition of "sponsor", the Visa Officer in this case was authorized to assess whether Mr. Zhou would reside in Canada "exclusively and without interruption". Secondly, part (b) of the definition refers to "visa officer" for one simple reason; part (b) deals with persons who are outside Canada. Such persons would always be dealing with visa officers.
[17] The Applicant further argues that, if the Visa Officer had concerns about the ability of Mr. Zhou to be a sponsor, she should have forwarded the file back to the Case Processing Centre where an immigration officer could have reviewed the concerns. Alternatively, the Applicant submits that, once the Immigration Officer made his decision, the matter of eligibility was res judicata.
[18] Once again, I do not find merit in this argument. While Mr. Zhou had previously been informed that he met eligibility requirements, this determination was made on May 25, 2001, before the Applicant had even submitted her application for permanent residence. If it is a requirement that the sponsor maintain residence in Canada until the Applicant is granted status, it is difficult to determine how this requirement could have been 'met' before the Applicant had even filed her application. In her capacity as the person deciding this application, the Visa Officer was not only permitted to make a determination of all aspects of the sponsorship application-she was obliged to do so. This included making an assessment of whether Mr. Zhou was a "sponsor".
[19] Normally, I expect that there is no change of status or no new information that comes to light between the time that a sponsor is told that he or she is eligible to sponsor someone and the time that the application is assessed. However, the situation was different here. On the facts of this case, the Visa Officer's review raised a question of whether Mr. Zhou was, at the time of her assessment, a sponsor. The prior advice was no
longer accurate. There had been no final decision that Mr. Zhou met the definition of sponsor for purposes of the application for landing of the Applicant. Res judicata does not apply.
Issue #3: Did the Visa Officer err by concluding that residency required physical presence in Canada?
[20] The Applicant submits that the Visa Officer misinterpreted s. 2(1) of the Regulations. The provision discusses the "residence" of the sponsor, not the physical presence. The provision did not state that sponsors are not allowed to set one foot outside of Canada until the visa application is finalized. The Applicant also notes that the current provision-section 130 of the Immigration and Refugee Protection Regulations-eliminates the obligation of a sponsor to maintain residence in Canada during the application period.
[21] While this argument may have merit in certain fact scenarios, it does not in this case. Due to the failure of Mr. Zhou to file an affidavit in this application, I am left with a record that provides ample support for a conclusion that Mr. Zhou never actually resided in Canada. Whether "residence" requires 100% physical presence or something less, it must at least mean some minimal threshold of residence. There is no reliable evidence before me that Mr. Zhou resided in Canada at any of the applicable times.
Issue #4: Has the Applicant fulfilled the obligation to exhaust the alternative remedy before bringing this application?
[22] Given my conclusion that the Visa Officer did not err in respect of any of the issues raised by the Applicant, I do not need to consider this issue.
Conclusion
[23] For the reasons above, I would dismiss this application for judicial review. The Respondent does not seek costs.
[24] Neither party requested that I certify a question. None will be certified.
ORDER
THIS COURT ORDERS THAT:
1. Immigration North America, Inc. is struck as a party to this application;
2. The application is dismissed; and
3. No question of general importance is certified.
"Judith A. Snider"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2789-02
STYLE OF CAUSE: JING LI ET AL v. THE M.C. & I.
DATE OF HEARING: October 5, 2004
PLACE OF HEARING: Toronto, Ontario
REASONS FOR ORDER
AND ORDER: The Honourable Madam Justice Snider
DATED: October 8, 2004
APPEARANCES BY:
Mary Lam FOR APPLICANTS
Kareena Wilding FOR RESPONDENT
SOLICITORS OF RECORD:
Mary Lam FOR APPLICANTS
Toronto, Ontario
Mr. Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada