Date: 20040308
Docket: IMM-2892-02
Citation: 2004 FC 345
BETWEEN:
YU MING WU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MacKAY J.
[1] These are Reasons for an Order dismissing the application for judicial review of the applicant, Yu Ming Wu, concerning a decision by a visa officer in Hong Kong, dated May 14, 2002, who found the applicant was inadmissible to Canada pursuant to paragraph 19(1)(c.2) of the Immigration Act, R.S.C. 1985, c. I-2, as amended ("the former Act"), then applicable, on the basis that there were reasonable grounds to believe that Mr. Wu was a member of a criminal organization.
Background
[2] Mr. Wu is a citizen of the People's Republic of China, resident in Hong Kong. In October 1995 he submitted an application for permanent residence in Canada, as a member of the family class sponsored by his wife, a permanent resident of Canada. The couple had met and married in Canada, and two children of the marriage, and a third child of his wife's former marriage, all of them born in Canada, reside in Canada with their mother.
[3] In November 1995, Mr. Wu's application was refused for he was found to be inadmissible under paragraph 19(1)(c.1) of the former Act as a result of his criminal convictions in Hong Kong for assault and theft. His record included convictions for assault causing bodily harm, in July 1984, September 1985, December 1986, and on the last occasion for assault, including wounding, and for theft (shoplifting), in May 1987. Following receipt of the letter refusing his application, Mr. Wu submitted an application in January 1996, since it was more than 5 years after his last offence was committed, for approval by the Minister that he was rehabilitated. No decision was made on that application.
[4] On April 16, 1996, Mr. Wu's wife appealed the refusal of her sponsorship of her husband to the Immigration and Refugee Board, Appeal Division. That Board allowed the appeal on December 8, 1998, on humanitarian and compassionate grounds, acknowledging his convictions but noting that Mr. Wu had no "brush with the law since 1987" and that he had since then become a successful businessman.
[5] Mr. Wu's application for permanent residence was then referred for reconsideration by a visa officer in Hong Kong. That officer considered there was reason to examine Mr. Wu's admissibility to Canada under paragraph 19(1)(c.2) concerning his perceived involvement in organized crime. He invited Mr. Wu to an interview, to examine any links he might have with organized crime, requesting a statement from the applicant of the nature of any criminal activities and of the identification of any criminal associates of his. The interview took place on March 30, 2000.
[6] Thereafter, in April 2000, the visa officer drafted a refusal letter, which was not sent to Mr. Wu. The visa officer did institute another process, recommending Mr. Wu be determined to be a danger to the public in Canada, with notice in May 2000 to his wife, as his sponsor, of the officer's recommendation. Almost two years later, on March 26, 2002, the Minister's delegate issued an opinion that Mr. Wu constitutes a danger to the public in Canada. Pursuant to s-s. 77(3.01)(b) of the former Act, that opinion was not subject to appeal to the Appeal Division. Mr. Wu was so advised.
[7] Further, by letter dated May 14, 2002, the visa officer advised the applicant that he is inadmissible to Canada under paragraph 19(1)(c.2) as there are reasonable grounds to believe that he was a member of a criminal organization.
[8] Both decisions, the danger opinion and the refusal of his application, are referred to in written submissions of the applicant. They are, of course, separate decisions and the respondent urges each must be the subject of a separate application for judicial review in accord with the Federal Courts Rules, 1998, Rule 302, unless the Court orders otherwise. I am not persuaded otherwise and it is the latter determination, that he is inadmissible to Canada pursuant to paragraph 19(1)(c.2), that is the subject of this judicial review. If he were successful in this, the matter would be referred for reconsideration, the same result as if the two decisions were here subject to review.
[9] In the letter of refusal, the visa officer advised in part as follows:
I have concluded that you are a member of the inadmissible class of persons described in paragraph 19 (1)(c.2) of the Immigration Act after a careful review of all relevant information available to me at this time. As discussed with you at your interview with me of March 3, [sic] 2000, I have received information in confidence that you are a member of a known criminal organization. I have also received information in confidence that you are a member of a group of persons involved in significant illegal activities. I consider that this information comes from a reliable and credible source. Although I am not satisfied that you have made a full disclosure of the nature or extent of your lengthy and ongoing criminal associations when provided with an opportunity to do so at your interview, I have also concluded that your employment history in an industrial sector known to be heavily influenced by organized criminal activity, your history of criminal offences spanning a period of eight years, and involving crimes of violence, and your contacts with triad members in high school, further support the credibility of information received in confidence. I have noted your denial of membership in a criminal organization and your denial of involvement in criminal activity not already disclosed in your police certificate. I have not found that these denials outweigh the force of other evidence available to me.
Issues
[10] In considering this application, a number of issues arise. I deal with these in turn:
1. the applicable legislation;
2. an application by the respondent for certain information to be retained in confidence and not disclosed to the applicant, pursuant to s-s. 87(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA");
3. the allegation that the visa officer exceeded his jurisdiction by reconsidering the applicant's record of criminal convictions, a matter earlier dealt with by the Appeal Division of the Immigration and Refugee Board; and
4. the allegation that the applicant was not treated with procedural fairness by the visa officer in assessing his background, and in considering information about his alleged association with organizations or persons involved in criminal activities.
The Applicable Legislation
[11] The decisions concerning the applicant were all made under the former Act, including the decision of the visa officer that Mr. Wu was inadmissible pursuant to then s-s. 19(1)(c.2). The application for leave and judicial review was also filed pursuant to that Act which was repealed and replaced by IRPA which came into force on June 28, 2002. Transitional provisions of IRPA include s. 190 whereby proceedings commenced under the former Act are to be continued under IRPA. Thus this application, commenced by application dated June 21, 2002, was heard in accord with IRPA under which the decision in issue is considered. By SOR/2002-227, s. 320(6) a person who had been determined, at June 28, 2002, to be a member of an inadmissible class described in para. 19(1)(c.2) of the former Act is inadmissible under IRPA, s. 37(1).
Non-disclosure of Information: s-s. 87(1) IRPA
[12] The respondent Minister applied pursuant to s-s. 87(1) for an Order for the non-disclosure of certain information, provided to the Court by confidential affidavit, information which had been available to the visa officer in 2000 but had not been disclosed to the applicant or his counsel.
[13] Under s. 76 of IRPA, information is defined as "...security or criminal intelligence information and information that is obtained in confidence from a source in Canada, from the government of a foreign state, from an international organization of states or from an institution of either of them."
[14] Where such information is the subject of a motion for non-disclosure, s-s. 87(2) of IRPA provides that except for certain provisions s. 78 of that Act applies to the determination of that application. In advance of the hearing of the application for judicial review, in accord with IRPA, I heard in public the application by the Minister, with an opportunity for the applicant to respond, without revelation of the information in issue to the applicant or to the Court. I then recessed, considered the information in camera with only a registry officer and counsel for the Minister present. I determined the information was relevant to the issues before the Court, and should be considered by the Court but it should not be disclosed to the applicant, his counsel, or the public since disclosure would reveal criminal intelligence information obtained from an institution of the government of a foreign state.
[15] The Court ordered that information be retained for consideration of the hearing judge on this application, and that it not be disclosed to the applicant, his counsel or the public unless so ordered by the Court.
[16] Subsequently I heard this application for judicial review, first in open Court when counsel for both parties were heard, and the Court then adjourned to consider the information that had not been disclosed. That information continues to be maintained on a confidential file of the Court. Having examined it I did take it into account in considering the application. It is relevant to the issues before me, but since its disclosure would reveal criminal intelligence information obtained from a foreign state, the information continues to be retained in confidence, not part of the Court's public file, unless a judge hereafter orders otherwise.
[17] For the record, I note that in the course of hearing submissions on behalf of the parties, the Court invited counsel to file in writing further submissions following the hearing. That was done, in August 2003 by the respondent, and in November 2003 by the applicant. Those post-hearing submissions have been considered together with the submissions made when this matter was heard.
Jurisdiction to consider anew the applicant's criminal record
[18] For the applicant it is urged that the visa officer exceeded his authority by considering anew the criminal record which was the basis of the original refusal of his application and was then fully considered by the Appeal Division in allowing the appeal of his wife's sponsorship application on humanitarian and compassionate grounds.
[19] In the refusal letter, after referring to information received in confidence from a reliable and credible source indicating the applicant was a "member of a known criminal organization", and of "a group of persons involved in significant illegal activities", the visa officer referred to a number of circumstances which in his view supported the credibility of the information received in confidence. Among those circumstances he included reference to "your history of criminal offences spanning a period of eight years, and involving crimes of violence". Other circumstances were referred to for the same purpose, including Mr. Wu's employment history and contacts with Triad members in high school. Generally similar observations are included in CAIPS notes made by the visa officer following his interview of the applicant on March 30, 2000.
[20] I accept the submissions of counsel for the respondent Minister that the visa officer's reference to the applicant's criminal convictions was not for the purpose of considering whether those warranted a decision that he was inadmissible. That was, of course, the basis of the original decision and was a matter considered by the Appeal Division. Here those convictions were considered only as one of three general circumstances consistent with membership in organized criminal activities about which the officer had received undisclosed information in confidence. Reference to the convictions for this purpose was not unreasonable, in my opinion, in light of the visa officer's knowledge and understanding of organized crime activities in Hong Kong where the applicant resided, as supported by writings from the public domain, filed as exhibits to his affidavit, about those activities.
[21] Thus, it cannot be concluded that the visa officer exceeded his jurisdiction by referring, in the manner that he did, to the applicant's record of criminal convictions. The reference in his refusal letter to criminal convictions in an eight year period was in error, for the applicant's convictions were registered in the three years 1984-87, but that error in itself is not a basis to here intervene.
Issues of Procedural Fairness
[22] Two aspects of procedural fairness are here raised on behalf of the applicant, the fairness of the assessments made concerning Mr. Wu's background and his alleged association with organizations or individuals involved in criminal activities, and the fairness of considering the undisclosed information in the final review of his application when the information on which it was based, through not used previously, was available before then. The latter issue is the more significant.
[23] For Mr. Wu it is urged that the visa officer's assessment of his background was unfair in considering his "employment history in an industrial sector [the construction industry] known to be heavily influenced by organized criminal activity." Yet that assessment is not unreasonable in light of background information filed as exhibits to the visa officer's affidavit. The assessment of his record of criminal convictions, though it errs in stating the period of time involved, was otherwise factual and it too is not unreasonable in light of the visa officer's knowledge of the local conditions, as supported by exhibits to his affidavit. Finally, I agree the officer's description of Mr. Wu's "contact with Triad members in high school" would appear to somewhat exaggerate the one contact the applicant admitted had occurred in his high school years when he had been approached on one occasion and requested to join a triad, a request he said he had declined. I am not persuaded that any unfairness arising from that exaggeration warrants intervention by the Court.
[24] In itself, any exaggeration of that experience provides no basis for the Court to interfere, for the key information relied upon by the visa officer, which was discussed with Mr. Wu at his interview on March 30, 2000, was that received in confidence, and not then or since revealed in detail to the applicant, that he was a member of a known criminal organization, and a member of a group of persons involved in significant illegal activities.
[25] The information received in confidence is not available to the applicant pursuant to the Order issued in this proceeding made under s.87, IRPA. Taking that information into consideration and the other evidence before the visa officer, his conclusion cannot be said to be unreasonable. It is supported by the evidence. The visa officer's letter, acknowledging the applicant's denial at his interview of his membership in a criminal organization or his participation in criminal activities, other than the convictions he admitted in the 1980's, did not outweigh the significance of the confidential information. That information provided the basis for the visa officer's determination that there were reasonable grounds to believe that the applicant was involved in organized criminal activity. That assessment, as in Chiau v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 297, [2000] F.C.J. NO. 2043 (QL) (F.C.A.) cannot be considered to be patently unreasonable, or even unreasonable in this case.
[26] For Mr. Wu it is urged that the process followed in his case was unfair and the Court should intervene. The unfairness is said to arise from the fact that the confidential information was available or could have been available before the original refusal but was not then relied upon by the respondent. It is said to be unfair that it was used only after the Appeal Division had allowed the sponsor's appeal of the original decision. Further, it is urged that there was unfairness as a result of the delay in dealing with Mr. Wu's application.
[27] The applicant argues that the confidential information is not "new" because it existed before the first visa application refusal in 1995. The evidence does indicate that notice of confidential information about Mr. Wu's involvement in organized criminal activities was provided to the immigration department early in 1995, before his application for permanent residence was filed, but there is no record that any such information was before or was considered by the original visa officer involved in 1995 or was before the Appeal Division in 1996-98 when the sponsor's appeal of the original refusal decision was considered.
[28] Following the decision on appeal, based on humanitarian and compassionate grounds, in relation to the original refusal based on his criminal convictions, Mr. Wu's application was
referred again to a visa officer in Hong Kong, this time with directions that consideration be given to any connections to organized crime within then s-s. 19(1)(c.2) of the former Act. Reconsideration by a visa officer following an appeal that had been allowed, was in accord with then s-s. 77(5) of the former Act which provided that:
| 77(5) Where Appeal Allowed - ...the Minister shall cause the review of the application to be resumed by an immigration officer or a visa officer, as the case may be, and the application shall be approved where it is determined that the person who sponsored the application and the member of the family class meet the requirements of this Act and the regulations, other than those requirements on which the decision of the Appeal Division has been given. |
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77(5) Cas où il fait droit d'appel - ...le ministre, sous réserve du paragraph (6), fait poursuivre l'examen de la demande par un agent d'immigratino ou un agent des visas. Celui-ci approuve la demande s'il est établi que le répondant et le parent satisfont aux exigences de la présente loi et de ses règlements, autres que celles sur lesquelles la section d'appel a rendu sa décision. |
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[29] That provision was considered by the Court of Appeal in Au v. Canada (Minister of Citizenship and Immigration), [2002] 3 F.C. 257, 2002 FCA 8, [2002] F.C.J. No. 37 (QL), where at para. 16, Mr. Justice Malone for the Court said in part:
...Where new facts come to the attention of the visa officer, the visa officer is required to consider whether the sponsor and the person being sponsored meet the requirements of the Act, having regard to those new facts. Of course, the facts must be new in the sense that they arose after the IAD hearing or, as in this case, were within the knowledge of the sponsoree but were withheld from the IAD and were discovered subsequently. Also, the new facts considered by the visa officer must be material. A visa officer cannot seize on insignificant facts. To do that would, in effect, mean that the visa officer was considering whether the individual met the requirements of the Act on virtually the same material facts considered by the IAD.
[30] I consider the reference to the requirement to "new facts in the sense that they arose after the IAD hearing" as meaning that the facts in question were not before the IAD at the time of its decision, not necessarily that the "new facts" or information came into existence only after the IAD decision. If it were only the latter meaning, none of the Act's requirements that were not in issue before the IAD, but on which information was then available, could be considered by the visa officer concerned to meet his responsibilities under s. 77(5). That result would be inconsistent with the requirements in the Act itself and with the officer's statutory responsibilities underlying the decisions in Chiau, supra, and in Au, supra.
[31] Further, I agree with the comments of Mr. Justice Nadon, then of this Court, in dismissing the application for judicial review in Au, at 2001 FCT 243 (T.D.) who said at para. 17:
With respect to the date of the additional evidence, the applicant's argument to the effect that the evidence should have been introduced before the IAD is, in my view, without merit. There was no obligation on the respondent to introduce the evidence before the IAD, since the purpose of the appeal was to consider the first refusal and the circumstances and evidence which led to that decision. The fact that the respondent could have brought the new evidence before the IAD does not in any way lead to the conclusion that it was obliged to do so. In my opinion, the respondent is not precluded from using that new evidence to refuse the applicant's second application for permanent residence, simply because it was or could have been available at the date of the hearing before the IAD.
[32] Thus, I am not persuaded that the visa officer considering Mr. Wu's application following the decision of the Appeal Division was acting unfairly in considering the confidential information. Rather he was properly fulfilling his statutory responsibilities. That information, not previously considered in assessing the application for permanent residence, was finally considered as a factor which the Minister and visa officers under the Act were required to do before approval could be given to the application from Mr. Wu.
[33] Moreover, even if the process could be characterized as unfair, that could not reasonably lead to any result other than reconsideration of the application in light of all the information before the visa officer, including the confidential information. Any result other than refusal of the application would be most exceptional in the circumstances of this case, and the Court declines to intervene (see Mobil Oil Canada v. Canada Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202).
[34] Finally, I am not persuaded that the delay in disposing of Mr. Wu's application constituted unfairness or abuse, that would warrant intervention to set aside the decision here in question. The delay complained of cannot include the time up to March 30, 2000, which was used in processing his application, his appeal and that of his sponsor, on the time for reconsideration of his application up to the time of his interview in Hong Kong. Thereafter, a recommendation was made for consideration by the Minister's delegate that the applicant was considered to present a danger to Canada, a further basis for rejection of his application. That process may alternately have been unnecessary, but once the opinion was rendered, the visa officer's assessment, that he was considered inadmissible under s-s 19(1)(c.2), was communicated to Mr. Wu without further delay.
[35] That decision, as I have indicated, was not unreasonable in light of all of the evidence before the visa officer. The delay complained of, primarily arising from administrative processing of the applications of Mr. Wu and his sponsor, provides no ground for finding unfairness that would warrant intervention by the Court after the decision in question was made, in accord with the statute and regulation.
Conclusion
[36] In conclusion I find that the decision of the visa officer, here in question, was not unreasonable on the evidence, both that received and considered in confidence without disclosure of its substance to the applicant or his counsel, and that on the public record. Further, I find there was no unfairness in the processing of the application of Mr. Wu and of his sponsor that would warrant intervention by the Court to set aside the decision impugned.
[37] An order so providing will issue after counsel for the parties have opportunity to consult about any question that might be proposed for consideration by the Court of Appeal, pursuant to para. 74(d) of IRPA as a serious question of general importance. Whether or not counsel agree on any question, each may make submissions about any question proposed by submissions in writing to the Registry of the Court in Vancouver, on or before March 15, 2004.
"W. Andrew MacKay"
Judge
Ottawa, Ontario
March 8, 2004
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-2892-02
STYLE OF CAUSE: Yu Ming Wu v. MCI
PLACE OF HEARING: Vancouver
DATE OF HEARING: July 24, 2003
REASONS FOR ORDER BY: MacKAY J.
DATED: March 8, 2004
APPEARANCES BY:
Mr. Peter D. Larlee For the applicant
Ms. Helen Park For the respondent
SOLICITORS OF RECORD:
Larlee & Associates For the applicant
Suite 600 - 555 West Georgia Street
Vancouver, B.C. V6B 1Z5
Morris Rosenberg For the respondent
Deputy Attorney General of Canada
Suite 900 - 840 Howe Street
Vancouver, B.C. V6Z 2S9
FEDERAL COURT
Docket: IMM-2892-02
BETWEEN:
YU MING WU
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER