Judgments

[1996] 3 F.C. 349

IMM-6477-93

Dolly Shuk Ching Chan (Applicant)

v.

Minister of Citizenship and Immigration (Respondent)

Indexed as: Chan v. Canada (Minister of Citizenship and Immigration) (T.D.)

Trial Division, Cullen J.—Ottawa, April 1 and June 17, 1996.

Constitutional law — Charter of Rights — Life, liberty and security — Permanent resident visa revoked on ground applicant member of inadmissible class pursuant to Immigration Act, s. 19(1)(c.2) (member of foreign criminal organization) — On judicial review application, Court ordering non-disclosure of confidential government information pursuant to s. 82.1(10) — S. 82.1(10) permitting Minister to apply in camera, ex parte for non-disclosure — S. 82.1(10) not infringing Charter, s. 7 — Applicant’s rights not infringed as no right to come to Canada, only right to apply to come — Procedure prescribed not violating principles of fundamental justice — Questions certified: whether s. 82.1(10) infringing Charter, s. 7, and if so whether demonstrably justified.

Bill of rights — Immigration Act, s. 82.1(10) permitting Minister to apply ex parte, in camera for examination of information by F.C.T.D. in absence of applicant, counsel as disclosure injurious to national security or public safety — Question certified as to whether Canadian Bill of Rights, s. 2(e) infringed.

Administrative law — Judicial review — Declarations — Judicial review of revocation of permanent resident visa — After visa issued, new information indicating applicant member of foreign criminal organization — Applicant notified new information might render her inadmissible — Not making appointment for immigration hearing although invited to do so — Applicant found to be member of inadmissible class pursuant to Immigration Act, s. 19(1)(c.2), visa revoked — On judicial review application, Court ordering non-disclosure of confidential government information pursuant to s. 82.1(10) — Duty of fairness met by offering applicant opportunity to attend interview — Visa officer not functus officio — Within jurisdiction to revoke visa — Not fettering discretion — Adequate grounds on which to base decision — Questions certified: whether s. 82.1(10) infringing Charter, s. 7, Canadian Bill of Rights, s. 2(e); whether visa officer functus officio after permanent resident visa issued.

Citizenship and Immigration — Exclusion and removal — Inadmissible persons — Judicial review of revocation of permanent resident visa — After visa issued, new information indicating applicant member of foreign criminal organization — Applicant notified new information might render her inadmissible — Despite request to do so, applicant not making appointment for immigration hearing — Visa officer holding member of inadmissible class pursuant to Immigration Act, s. 19(1)(c.2), revoking visa — S. 82.1(10) not contravening Charter, s. 7 — Visa officer having jurisdiction to revoke visa — No breach of procedural fairness — Visa officer not fettering discretion — Adequate grounds for decision — Questions certified: whether s. 82.1(10) infringing Charter, s. 7, Canadian Bill of Rights, s. 2(e); whether visa officer functus officio after permanent resident visa issued.

This was an application for judicial review of the revocation of the applicant’s permanent resident visa. After visas had been issued to the applicant and her dependent son, the visa officer received new information indicating that the applicant was a member of a foreign criminal organization: a triad (a Chinese secret society existing for criminal purposes). The applicant was notified that the new information might render her inadmissible and was invited to arrange a meeting with the visa officer. Although the applicant’s request to have counsel attend an interview with her was initially denied, the request was eventually accepted, but no attempt was made to arrange an appointment for an immigration hearing. The visa officer found that the applicant was a member of an inadmissible class pursuant to Immigration Act, paragraph 19(1)(c.2) and revoked her visa. Paragraph 19(1)(c.2) prohibits admission of persons who there are reasonable grounds to believe are members of an organization that there are reasonable grounds to believe is engaged in criminal activity. The applicant applied for judicial review of that decision. Subsequently, the Court ordered non-disclosure of confidential government information obtained pursuant to Immigration Act, subsection 82.1(10). Subsection 82.1(10) permits the Minister to apply in camera, ex parte for non-disclosure of confidential information obtained from government or an institution of a foreign state and requires the Court to examine the information, provide counsel for the Minister with a reasonable opportunity to be heard, and to consider the information on the application for judicial review only if found to be injurious to national security or to the safety of persons. The applicant submitted that the in camera, ex parte proceedings deprived her of her right to liberty and security of the person guaranteed in Charter, section 7 as freedom of movement is akin to liberty. She argued that that deprivation was not in accordance with the principles of fundamental justice, since she had not been provided with disclosure of the allegations against her, nor did she have an opportunity to respond. The applicant also submitted that, when making the decision to revoke the visa, the visa officer was functus officio. Finally the applicant submitted that the visa officer improperly exercised his discretion by adopting as his own the decision which was made in Ottawa concerning the applicant.

The issues were: (1) whether subsection 82.1(10) infringes Charter, section 7; (2) whether the visa officer, in revoking the visas, was functus officio; (3) whether subsection 82.1(10) breached the applicant’s right to procedural fairness; and (4) whether the visa officer improperly fettered his discretion.

Held, the application should be dismissed.

(1) Subsection 82.1(10) does not infringe Charter, section 7. The applicant’s rights were not impaired in any way. She does not have a right to come to Canada; at best she has a right to apply to come here. Nor was there any evidence that she had suffered psychological stress or that her reputation had been tarnished by the allegation that she was a member of a triad.

The procedure prescribed in subsection 82.1(10) did not violate the principles of fundamental justice. An analysis of the scope of the principles of fundamental justice in proceedings under subsection 82.1(10) must be conducted in the context of the principles and policies underlying immigration law, particularly the principle that an alien has no right to enter or remain in Canada. The right to know the evidence upon which the decision to revoke the visa was made must be balanced against the competing interests of the state in protecting the safety of Canadian society and the promotion of international order by denying the use of our territory to persons likely to engage in criminal activity. Parliament, in subsection 82.1(10), has sought to strike a reasonable balance between the competing interests of the individual and the state. The applicant was merely denied the opportunity to come to Canada and non-citizens do not have an unqualified right to enter the country. Furthermore, while fundamental justice demands a fair procedure, it does not demand a perfect system of full disclosure and a full oral hearing in every case. In the context of subsection 82.1(10), while the applicant does not get a summary of the confidential evidence, she is told why she is being denied admission to Canada. Nothing prevents the applicant from seeking judicial review of the visa officer’s decision and of leading affidavit evidence to show that she is not a member of the triad. While not perfect justice, when disclosure could be injurious to national security or to the safety of persons, the applicant’s rights must be balanced against the state’s legitimate interests.

(2) The visa officer was not functus officio and had jurisdiction to revoke the applicant’s visa. Although nothing in the Immigration Act deals with whether a visa officer may review decisions already made, this silence should not be construed as a prohibition against reconsideration of decisions. A visa officer has jurisdiction to reconsider his decision, particularly when new information comes to light. The visa officer, upon receiving information that the applicant was a member of an inadmissible class, had jurisdiction to reconsider his earlier decision and revoke her visa. To squeeze the administrative decisions of visa officers into the same functus officio box that is imposed on judicial decision-makers would not accord with the role and duties of visa officers.

(3) There was no breach of the applicant’s right to procedural fairness. The issuance of a visa is part of the statutory scheme in which section 8 imposes on the person seeking to come to Canada the burden of proving that he has a right to do so. The applicant did not have a right to have her counsel present at the interview with the visa officer. The Immigration Act does not explicitly confer a right to counsel on persons making an application for landing. The visa officer fulfilled his duty of fairness by offering the applicant an opportunity to attend an interview.

(4) The visa officer did not fetter his discretion and had adequate grounds upon which to base his decision. There was no indication that the visa officer did not weigh the information from Ottawa and from the RCMP and arrive at his own conclusion. The visa officer need not be convinced “beyond a reasonable doubt” that the applicant was a member of a triad. It must only be shown that the visa officer had reasonable grounds to believe that the applicant is or was a member of an organization that there are reasonable grounds to believe is or was engaged in crime. This does not mean that there must be proof that the organization is criminal or that the applicant is or was a member of such an organization, but only that there are reasonable grounds to believe she is or was a member. The visa officer had more than adequate grounds upon which to base his decision that the applicant should not be admitted to Canada.

The following questions were certified: (1) Does Immigration Act, subsection 82.1(10) infringe Charter, section 7, and if so, is the infringement demonstrably justified pursuant to section 1? (2) Does subsection 82.1(10) infringe Canadian Bill of Rights, paragraph 2(e)? (3) Can a visa officer revoke permanent resident visas, once they have been issued or is the visa officer functus officio?

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Access to Information Act, R.S.C., 1985, c. A-1.

Canada Evidence Act, R.S.C. 1970, c. E-10.

Canadian Bill of Rights, R.S.C., 1985, Appendix III, ss. 1(a),(b),(e), 2(e).

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 1, 7.

Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1 (as enacted by S.C. 1990, c. 8, s. 5).

Federal Court Rules, C.R.C., c. 663, R. 324.

Immigration Act, R.S.C., 1985, c. I-2, ss. 8, 19(1)(c.2) (as am. by S.C. 1992, c. 49, s. 11), 40.1 (as enacted by R.S.C., 1985 (4th Supp.), c. 29, s. 4; S.C. 1992, c. 49, s. 31), 82.1(10) (as am. by S.C. 1992, c. 49, s. 73).

CASES JUDICIALLY CONSIDERED

APPLIED:

Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519; (1993), 107 D.L.R. (4th) 342; [1993] 7 W.W.R. 641; 56 W.A.C. 1; 82 B.C.L.R. (2d) 273; 34 B.C.A.C. 1; 85 C.C.C. (3d) 15; 24 C.R. (4th) 281; 158 N.R. 1; Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711; (1992), 90 D.L.R. (4th) 289; 2 Admin. L.R. (2d) 125; 72 C.C.C. (3d) 214; 8 C.R.R. (2d) 234; 16 Imm. L.R. (2d) 1; 135 N.R. 161; Henrie v. Canada (Security Intelligence Review Committee), [1989] 2 F.C. 229 (1988), 53 D.L.R. (4th) 568 (T.D.); affd (1992), 88 D.L.R. (4th) 575 (F.C.A.); Vidal and Dadwah v. Minister of Employment and Immigration (1991), 41 F.T.R. 118; 13 Imm. L.R. (2d) 123 (F.C.T.D.); Attorney General of Canada v. Jolly, [1975] F.C. 216; (1975), 54 D.L.R. (3d) 277; 7 N.R. 271 (C.A.); Dick v. Minister of Employment and Immigration (1992), 52 F.T.R. 318; 17 Imm. L.R. (2d) 25 (F.C.T.D.); Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848; (1989), 101 A.R. 321; 62 D.L.R. (4th) 577; [1989] 6 W.W.R. 521; 70 Alta. L.R. (2d) 193; 40 Admin. L.R. 128; 36 C.L.R. 1; 99 N.R. 277.

CONSIDERED:

Shah v. Minister of Employment and Immigration (1994), 170 N.R. 238 (F.C.A.).

REFERRED TO:

R. v. Lyons, [1987] 2 S.C.R. 309; (1987), 44 D.L.R. (4th) 193; 37 C.C.C. (3d) 1; 61 C.R. (3d) 1; 80 N.R. 161.

APPLICATION for judicial review of the visa officer’s decision to revoke the applicant’s permanent resident visa on the ground that she was a member of an inadmissible class pursuant to Immigration Act, paragraph 19(1)(c.2). Application dismissed.

COUNSEL:

Kay M. Vinall for applicant.

Harry J. Wruck for respondent.

SOLICITORS:

Kay M. Vinall, Vancouver, for applicant.

Deputy Attorney General of Canada for respondent.

The following are the reasons for order rendered in English by

Cullen J.: This is an application for judicial review of a decision of a visa officer, Jean-Paul Delisle, dated October 13, 1993. The decision denied the applicant’s application for permanent residence on the ground that she was a member of an inadmissible class, pursuant to paragraph 19(1)(c.2) of the Immigration Act, R.S.C., 1985, c. I-2, as amended [by S.C. 1992, c. 49, s. 11] (the Immigration Act).

FACTS

The facts in this case are not in dispute. On August 16, 1990, the Commission for Canada in Hong Kong received an application for permanent residence in Canada from the applicant and her dependent son, Stanley Cheung Tak Kwai. The applicant stated she was unmarried and had a personal net worth of $1,485,273 CAN. On October 27, 1992, the application was favourably reviewed without the need for an interview by a visa officer, James Gill.

On January 19, 1993, the Hong Kong government provided the Commission for Canada in Hong Kong with information indicating that in 1972 the applicant was registered as being married to Benton Cheun Yan Loong (also known as Cheun Yan Lung, also known as Benton Cheun Yan Lung, also known as Benton Cheung Yan Loon). On February 4, 1993, the Commission for Canada in Hong Kong wrote to the applicant, asking her to provide particulars of her marriage to Benton Cheun Yan Lung and to explain why she described herself as “never married” in her application for permanent residence in Canada. The applicant’s lawyer, Victor Yang, wrote to the Canadian Commission on March 2, 1993 and indicated that the applicant is the concubine of Benton Cheun Yan Lung. She described her marital status as “never married” in her application because she had never registered her marriage in the marriage registry in Hong Kong. This explanation was accepted by the visa officer. A concubine in Hong Kong is the second wife of a man in Hong Kong and was permitted under Hong Kong law (the Marriage Ordinance) until 1975.

On March 11, 1993, immigrant visas were issued to the applicant and her son. Had the parties acted on their valid visas straightaway, there is little question they would now be permanent residents in Canada.

However, new information concerning the applicant came to the attention of visa officer, Jean-Paul Delisle. Delisle was recently posted to Hong Kong, but had held a number of other posts, both as a visa officer and in other immigration-related positions. The information indicated that the applicant was a member of the Sun Yee On triad and, as such, fell within paragraph 19(1)(c.2) of the Immigration Act. Paragraph 19(1)(c.2) reads:

19. (1) No person shall be granted admission who is a member of any of the following classes:

…

(c.2) persons who there are reasonable grounds to believe are or were members of an organization that there are reasonable grounds to believe is or was engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of any offence under the Criminal Code, the Narcotic Control Act or Part III or IV of the Food and Drugs Act that may be punishable by way of indictment or in the commission outside Canada of an act or omission that, if committed in Canada, would constitute such an offence, except persons who have satisfied the Minister that their admission would not be detrimental to the national interest.

Delisle notified the applicant, on August 26, 1993, that new information might render her inadmissible to Canada and asked her to set up a meeting with him. By letter dated September 13, 1993, he further advised the applicant that: (1) she might be inadmissible to Canada; (2) she should not use the issued visas; and (3) she had not complied with the August 26, 1993 request to provide further information.

Counsel for the applicant contacted Delisle and indicated that he would advise his client not to attend an immigration interview unless he also attended; this request was initially denied. On September 22, 1993, counsel for the applicant advised he had instructions to set up an immigration interview with the Commission for Canada in Hong Kong and to have a member of his law firm present at any immigration interviews set up in respect of the application. This request was accepted by Delisle on September 29 and it was decided that counsel could set up an interview once the applicant returned from a trip to Britain. No appointment for an immigration hearing was ever set up by the applicant’s counsel and no contact was made with the Commission prior to Delisle issuing the decision in question.

On October 13, 1993, Delisle notified the applicant that: (1) there were reasonable grounds to believe that the applicant is a person described in paragraph 19(1)(c.2); (2) the applicant’s application for a visa was refused; and (3) the applicant must return the immigrant visas issued previously to her. It is this decision—to revoke the visas and deny the applicant admission to Canada on the basis of paragraph 19(1)(c.2)—that is the subject of this judicial review.

On November 12, 1993, the applicant served and filed an originating notice of motion, pursuant to section 18.1 of the Federal Court Act [R.S.C., 1985, c. F-7 (as enacted by S.C. 1990, c. 8, s. 5)], seeking the following relief (amendment to paragraph (e) was permitted pursuant to an order signed by me):

(a) An order quashing the decision of visa officer Jean-Paul Delisle of the Hong Kong Commission for Canada, made in writing and dated October 13, 1993, wherein the said visa officer purported to refuse the applicant’s application for permanent residence in Canada on the basis that the applicant and her accompanying dependent were inadmissible pursuant to paragraph 19(1)(c.2) of the Immigration Act, notwithstanding the issuance of immigration visas to the applicant and her accompanying dependent son;

(b) A declaration that, on the material before the said visa officer, the applicant is not inadmissible pursuant to paragraph 19(1)(c.2) of the Immigration Act;

(c) A declaration that, on the material before the said visa officer, the applicant’s accompanying dependent, Stanley Cheung Tak Kwai is also not inadmissible pursuant to paragraph 19(1)(c.2) of the Immigration Act;

(d) A declaration that the visas issued to the applicant and her accompanying dependent are valid visas for immigration to Canada; and

(e) An order referring the applicant’s application for permanent residence to a different visa officer and compelling the officer to reconsider the application in accordance with the law and such directions as this Court deems appropriate.

On May 6, 1994, counsel for the respondent advised the Court that he intended to bring an application pursuant to subsection 82.1(10) [as am. by S.C. 1992, c. 49, s. 73] of the Immigration Act to:

… have certain information examined by the Federal Court Trial Division in camera and in the absence of the applicant and her counsel. Counsel for the respondent will set out at that time the information the respondent intends to adduce and the grounds upon which the disclosure of this information would be injurious to the national security of Canada or to the safety of persons.

On June 29, 1994, the respondent filed a notice of motion under subsection 82.1(10) of the Immigration Act as follows:

TAKE NOTICE that the respondent Minister applied in camera to this Court for an Order, pursuant to subsection 82.1(1) of the Immigration Act for non-disclosure to the Applicant of information obtained in confidence from government or an institution of a foreign state.

AND TAKE NOTICE that at the time of the in camera hearing, the respondent will present pursuant to subsection 82.1(10) of the Immigration Act the confidential information in support of this application and will make submissions as to why the information should not be disclosed to the applicant or her counsel on the grounds that the disclosure would be injurious to Canada’s national security and to the safety of persons.

AND TAKE NOTICE that the respondent Minister requests that this Court order that this Court’s records relating to this matter, insofar as it contains information not disclosed to the applicant and her counsel, be sealed and not be disclosed to any other person except by further order of the Court for the purposes of subsection 82.1(10) of the Act.

I allowed the respondent’s motion on September 29, 1994 and ordered:

That the respondent shall not be required to disclose information obtained in confidence from the government or an institution of a foreign state or from an international organization of states or an institution thereof for the reason that such disclosure would be injurious to national security and safety of persons.

Subsequent to my order, however, the applicant applied for the release of certain documents pursuant to the Access to Information Act [R.S.C., 1985, c. A-1] and received some of the documents which were subject to my order of non-disclosure. On the respondent’s motion, I reviewed the secret file and issued another order on February 15, 1995, again ordering non-disclosure with the exception of the seven documents already released to the applicant under the Access to Information Act and an internal government memorandum. Although some of the documents have been released to the applicant, I am satisfied that the remainder of the secret file should remain confidential.

Given that both the applicant and the respondent had to deal with affiants in Hong Kong, the Court has been lenient with extensions of time and with motions under Federal Court Rules [C.R.C., c. 663], Rule 324. An order, signed by the Associate Chief Justice, fixed October 25, 1995 as the date of hearing. On October 11, 1995, however, the Court and the respondent were served a “notice of constitutional question.” The respondent indicated several difficulties and concluded it would be impossible to proceed on the date set for hearing. It was mutually agreed to re-schedule the hearing to April 1, 1996.

ISSUES

The applicant and the respondent raised a number of issues, some of which I do not consider relevant in disposing of this application. I have decided to address the relevant issues in the following order:

(1) Does subsection 82.1(10) of the Immigration Act infringe paragraph 2(e) of the Canadian Bill of Rights [R.S.C., 1985, Appendix III] or section 7 of the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]]? If so, is the infringement demonstrably justified in a free and democratic society, pursuant to section 1 of the Charter?

(2) Was the visa officer, in revoking the visas for the applicant, functus officio?

(3) Does subsection 82.1(10) breach the applicant’s right to procedural fairness?

(4) Did the visa officer improperly fetter his discretion or otherwise err in law?

CONSTITUTIONALITY OF SUBSECTION 82.1(10)

The applicant submits that subsection 82.1(10) of the Immigration Act infringes section 7 of the Canadian Charter of Rights and Freedoms and paragraph 2(e) of the Canadian Bill of Rights. The impugned subsection states:

82.1 ….

(10) With respect to any application for judicial review of a decision by a visa officer to refuse to issue a visa to a person on the grounds that the person is a person described in any of paragraphs 19(1)(c.1) to (g), (k) and (l),

(a) the Minister may make an application to the Federal Court—Trial Division, in camera, and in the absence of the person and any counsel representing the person, for the non-disclosure to the person of information obtained in confidence from the government or an institution of a foreign state or from an international organization of states or an institution thereof;

(b) the Court shall, in camera, and in the absence of the person and any counsel representing the person,

(i) examine the information, and

(ii) provide counsel representing the Minister with a reasonable opportunity to be heard as to whether the information should not be disclosed to the person on the grounds that the disclosure would be injurious to national security or to the safety of persons;

(c) the information shall be returned to counsel representing the Minister and shall not be considered by the Court in making its determination on the judicial review if, in the opinion of the Court, the disclosure of the information to the person would not be injurious to national security or to the safety of persons; and

(d) if the Court determines that the information should not be disclosed to the person on the grounds that the disclosure would be injurious to national security or to the safety of persons, the information shall not be disclosed but may be considered by the Court in making its determination.

In a nutshell, the applicant submits that the in camera and ex parte proceedings pursuant to this subsection of the Immigration Act deprived her of her right to liberty and her security of person, guaranteed in section 7 of the Charter and paragraphs 1(a), (b) and (e) of the Canadian Bill of Rights. Furthermore, the deprivation of her rights is not in accordance with the principles of fundamental justice, as provided in section 7 of the Charter and paragraph 2(e) of the Canadian Bill of Rights, since she was neither provided with disclosure of the allegations against her nor did she have an opportunity to respond.

Section 7 of the Charter reads as follows:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

As indicated by the Supreme Court of Canada in Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, at page 584, the approach to be taken in assessing an alleged violation of the section 7 has two stages: first, the Court must determine whether there has been a deprivation of the right to life, liberty or security of the person and, second, the Court must consider whether the infringement or deprivation was in conformity with the principles of fundamental justice.

Does subsection 82.1(10) deprive the applicant of her life, liberty or security of the person? The applicant submits that the right to freedom of movement is akin to the right to liberty. She claims that the impairment of her right to come to Canada has infringed her right to liberty. Furthermore, the stigma attaching to the allegation of being in a triad and the damage to her reputation has caused the applicant psychological stress and has impaired her security of the person.

Frankly, I have some difficulty accepting that the applicant’s rights have been impaired in any way. The applicant does not, as she contends, have a right to come to Canada; at best, she has a right to apply to come to Canada. Furthermore, there is no evidence to support the applicant’s submission that she has suffered psychological stress or that her reputation has been tarnished. My conclusions on the impairment of the applicant’s rights are sufficient to dispose of the constitutional argument; however, I am further satisfied that the applicant has failed to make out a case that the procedure prescribed in subsection 82.1(10) of the Immigration Act violates the principles of fundamental justice.

The principles to be applied in determining whether a statutory scheme violates the principles of fundamental justice were enunciated by Sopinka J. in Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711. In considering the constitutionality of legislation governing the deportation of permanent residents convicted of certain criminal offences, Sopinka J. confirmed the importance of adopting a contextual approach to the interpretation of section 7 of the Charter. In this regard, he stated as follows at pages 733-734:

Thus in determining the scope of principles of fundamental justice as they apply to this case, the Court must look to the principles and policies underlying immigration law. The most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in the country. At common law an alien has no right to enter or remain in the country….

…

The distinction between citizens and non-citizens is recognized in the Charter. While permanent residents are given the right to move to, take up residence in, and pursue the gaining of a livelihood in any province in s. 6(2), only citizens are accorded the right “to enter, remain in and leave Canada” in s. 6(1).

Thus Parliament has the right to adopt an immigration policy and to enact legislation prescribing the conditions under which non-citizens will be permitted to enter and remain in Canada. It has done so in the Immigration Act.

In my opinion, these words of Sopinka J. are directly applicable to the case at bar. An analysis of the scope of the principles of fundamental justice in proceedings under subsection 82.1(10) of the Immigration Act must be conducted in the context of the principles and policies underlying immigration law, particularly the principle that an alien has no right to enter or remain in Canada.

The applicant argued, in both written and oral submissions, that she was deprived of her right to a fair trial because she could not know the evidence upon which the decision to revoke her visa was made. In my view, however, this right to know must be balanced against the competing interests of the state in protecting the safety of Canadian society and the promotion of international order by denying the use of our territory to persons likely to engage in criminal activity. In Chiarelli, supra, Sopinka J. noted at page 744 that, although the individual had an interest in a fair procedure, the state has “a considerable interest in effectively conducting national security and criminal intelligence investigations and in protecting police sources.” I also adopt the reasoning of Addy J. in Henrie v. Canada (Security Intelligence Review Committee), [1989] 2 F.C. 229(T.D.); affd (1992), 88 D.L.R. (4th) 575 (C.A.). Although the case before His Lordship concerned disclosure under the Canada Evidence Act [R.S.C. 1970, c. E-10], I think the principles are equally applicable to the case at bar. Mr. Justice Addy stated at page 238:

Public interest in the administration of justice requires complete openness of the judicial process. That principle must be jealously guarded and rigorously applied, especially where evidence which appears to be relevant to a judicial determination is at stake. That cardinal rule not only safeguards the rights of litigants generally but, more importantly, it is fundamental to the public interest in the preservation of our free and democratic society. There are, however, very limited and well-defined occasions where that principle of complete openness must play a secondary role and where, with regard to the admission of evidence, the public interest in not disclosing the evidence may outweigh the public interest in disclosure. This frequently occurs where national security is involved for the simple reason that the very existence of our free and democratic society as well as the continued protection of the rights of litigants ultimately depend on the security and continued existence of our nation and of its institutions and laws.

In my view, Parliament, in subsection 82.1(10), has sought to strike a reasonable balance between the competing interests of the individual and the state. I accept that the applicant is somewhat handicapped in her ability to make a full and fair response. It must be remembered, however, that this matter does not fall into the criminal context where the full force of the state can be brought to bear against a person who is convicted. The applicant is merely denied the opportunity to come to Canada and, as already mentioned, non-citizens do not have an unqualified right to enter the country. Furthermore, while fundamental justice demands a fair procedure, it does not demand a perfect system of full disclosure and a full oral hearing in every case. The principles of fundamental justice are not immutable, but can vary according to the context in which they are invoked: see R v. Lyons, [1987] 2 S.C.R. 309, at page 361.

In the context of subsection 82.1(10), the secret information is carefully reviewed by a judge of this Court and he or she must consider whether the information could be revealed to the person concerned. While the applicant does not get a summary of the confidential evidence, as in the case of a certificate filed under section 40.1 [as enacted by R.S.C., 1985 (4th Supp.), c. 29, s. 4; S.C. 1992, c. 49, s. 31] of the Immigration Act, she is told why she is being denied admission to Canada. The applicant was told that the visa officer considered her a member of an inadmissible class, under paragraph 19(1)(c.2) of the Immigration Act, and that he had reasonable grounds to believe that she was a member of the Sun Yee On triad. There is nothing which prevents the applicant from seeking judicial review of the visa officer’s decision and of leading affidavit evidence to show that she is not a member of the triad. Again, I accept that this is not “perfect justice”, but when disclosure could be injurious to national security or to the safety of persons, the applicant’s rights must be balanced against the state’s legitimate interests.

Having found that the applicant has not been deprived of her right to life, liberty, or security of the person, contrary to the principles of fundamental justice, there is no need to consider the arguments advanced under section 1 of the Charter and the applicant’s proposed remedy of having the Court provide a summary of the secret material or allowing counsel access on an undertaking not to disclose. I have also not considered the applicant’s submissions concerning the Canadian Bill of Rights.

FUNCTUS OFFICIO

In the case at bar, the applicant was issued a visa. The visa was revoked, however, when information about the applicant’s involvement with the Sun Yee On triad came to light. The applicant submits that, when making the decision to revoke the visa, the visa officer was functus officio.

The doctrine of functus officio was considered by the Supreme Court of Canada in Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848. Sopinka J., writing for the majority, held that the doctrine applied to administrative bodies as well as courts, but he stated at page 862:

… I am of the opinion that its application must be more flexible and less formalistic in respect to the decision of administrative tribunals which are subject to appeal only on a point of law. Justice may require the reopening of administrative proceedings in order to provide relief which would otherwise be available on appeal.

Accordingly, the principle should not be strictly applied where there are indications in the enabling statute that a decision can be reopened in order to enable the tribunal to discharge the function committed to it by enabling legislation.

I understand this decision to mean that administrative decision-making, because it is more flexible and less formalistic than judicial decision-making, can be “re-opened” in the interests of justice where the enabling statute contemplates reconsideration of a decision.

Does the Immigration Act contemplate that a visa officer can reconsider his decision? There is nothing in the statute that deals with whether a visa officer may review decisions already made. I would take this silence, however, not to be a prohibition against reconsideration of decisions. Rather, I think that the visa officer has jurisdiction to reconsider his decision, particularly when new information comes to light. One can well imagine a situation opposite the one in the case at bar. What if the applicant was initially denied her visa because the officer considered her to be a member of the Sun Yee On triad? Could she not have brought new information to light, asking the visa officer to reconsider his decision? If the new information was persuasive, I have little doubt that the visa officer would have jurisdiction to issue a new decision, granting a visa. In my view, the same logic applies to the case at bar. The visa officer, upon receiving information that the applicant was a member of an inadmissible class, had jurisdiction to reconsider his earlier decision and revoke her visa. To squeeze the administrative decisions of visa officers into the same functus officio box that is imposed on judicial decision-makers would, in my view, not accord with the role and duties of visa officers.

PROCEDURAL FAIRNESS

While it is well established that there is a duty to act fairly in administrative matters, the scope of that duty will vary with the circumstances. For example, in Shah v. Minister of Employment and Immigration (1994), 170 N.R. 238 (F.C.A.), Hugessen J.A., said that the content of the duty of fairness owed by a visa officer in assessing an application for landing on humanitarian and compassionate grounds was “minimal”. An “H and C” application is purely discretionary and the law gives the applicant no right to any particular outcome. In the case at bar, however, the applicant initially appeared to have fulfilled the requirements for a visa and, indeed, was granted a visa. It could be argued that the decision to revoke her visa should give rise to more stringent requirements of procedural fairness. However, the issuance of a visa is still part of the statutory scheme in which section 8 of the Immigration Act states that “[w]here a person seeks to come into Canada, the burden of proving that that person has a right to come into Canada or that his admission would not be contrary to this Act or the regulations rests on that person.”

Once information concerning the applicant and the Sun Yee On triad came to the attention of the visa officer, he contacted the applicant and provided her with an opportunity to set up a meeting to be apprised of his concerns. The applicant did not avail herself of the opportunity to attend the immigration interview. On cross-examination of his affidavit, the visa officer indicated that he intended only to inform the applicant that he considered her inadmissible and, according to applicant, she would have had no opportunity to dissuade him from his decision, regardless of whether she attended the interview or not.

I do not accept the applicant’s submissions. The applicant ostensibly did not attend the interview because the visa officer refused to have her counsel present. In my view, the applicant did not have a right to have her counsel present at the interview with the visa officer. The Immigration Act does not explicitly confer a right to counsel on persons making an application for landing, even though there is provision for counsel under other procedures under the Act. In my view, the visa officer fulfilled his duty of fairness by offering the applicant an interview. He had no obligation to offer an interview with the applicant’s counsel present. Furthermore, I am not willing to speculate whether the visa officer would not have given the applicant a chance to “make her case” at the interview. I accept that, based on the information the visa officer had at the time that he contacted the applicant, he believed that the applicant was inadmissible, but what if the applicant had brought completely new information to light at the interview? The visa officer may well have taken that new information into account and arrived at a different decision. This, however, is speculative, given that the applicant did not avail herself of the opportunity to attend the interview with the visa officer. In my view, the visa officer acted fairly by offering the applicant a chance to attend an interview and make her case.

The applicant further submitted that she was denied procedural fairness since the visa officer took into account evidence that post-dated his decision. The applicant directed me to documents attached as an exhibit to the Delisle affidavit, a few of which post-dated the decision concerning the applicant. The visa officer, however, swore that he took into account the documents attached as an exhibit in arriving at his decision. The applicant submitted that the visa officer cannot rely on this evidence in arriving at his decision and I agree. I am not prepared to conclude, however, that the visa officer failed to comply with the duty of fairness simply because these documents are attached as an exhibit to his affidavit. First, the documents in question are a minority; the bulk of the evidence pre-dates the decision and entirely supports the visa officer’s decision. Second, I am prepared to accept that the inclusion of the post-dated documents was an administrative slip. As the visa officer explained in cross-examination, he has a “clippings file” to which he regularly adds information and from which he gathers evidence in making a decision. Obviously, a few wayward documents were accidentally attached to the affidavit and I do not accept that the visa officer purposely tried to bolster his decision after the fact.

FETTERING DISCRETION

Having found that the visa officer did not act in a procedurally unfair manner, I will review the merits of his decision. As a preliminary matter, I note that the applicant urged this Court that, if I disagreed with the decision, I could substitute my discretion for that of the visa officer. In my view, this interpretation of the Court’s power on judicial review is patently wrong. In Vidal and Dadwah v. Minister of Employment and Immigration (1991), 41 F.T.R. 118 (F.C.T.D.), Mr. Justice Strayer stated at page 122:

The court should not interfere with the exercise of discretion by an officer or body authorized by statute to exercise that discretion unless it is clear that the discretion has been exercised in bad faith or on grounds unrelated to the purposes for which the discretion is granted.

This reasoning was also followed by Mr. Justice Collier in Dick v. Minister of Employment and Immigration (1992), 52 F.T.R. 318 (F.C.T.D.), at page 319:

The onus is on the applicant to satisfy the court there was reversible error, warranting judicial interference by way of relief in the nature of certiorari. This is not an appeal, or a retrial of the matter. Nor can the court, in the absence of error in the legal sense, substitute its opinion for the discretion exercised by the immigration officer in coming to the decision he did.

So long as the visa officer properly exercised the discretion conferred upon him by the Immigration Act, there is no scope for substituting my opinion for that of the visa officer, regardless of whether I would have arrived at the same decision.

Turning to the merits of the decision, the applicant submits that the visa officer improperly exercised his discretion by adopting as his own the decision which was made in Ottawa concerning the applicant. The visa officer did not independently consider the information he received. In my view, this submission is groundless. While the visa officer did receive information from Ottawa and from the RCMP, there is no indication that he did not weigh this evidence and arrive at his own conclusion. Mr. Delisle is an experienced visa officer and understands what is required of him.

The applicant further submitted that the visa officer did not have “reasonable grounds” to believe that the applicant is a member of a triad. Counsel directed this Court to a report concerning triads and pointed out that the applicant had never been arrested in Hong Kong where triads are illegal. Furthermore, proceedings against Sun Yee On triad members, including the applicant’s stepson, were dismissed by the Court of Appeal in Hong Kong in the case of The Queen v. Chan Kai and others.[1]

While the evidence to which the applicant directed me tends to support her case, the visa officer need not be convinced “beyond a reasonable doubt” that the applicant is a member of a triad. It must be shown that the visa officer had reasonable grounds to believe that the applicant is or was a member of an organization that there are reasonable grounds to believe is or was engaged in crime. This does not mean that there must be proof that the organization is criminal or that the applicant is or was an actual member of such an organization, but only that there are reasonable grounds to believe she is or was a member of such an organization. In my view, the proper test to be applied is the one set out in Attorney General of Canada v. Jolly, [1975] F.C. 216 (C.A.), where the Federal Court of Appeal, in examining whether a potential visitor was a member of a subversive organization, stated the following at pages 225 and 226:

But where the fact to be ascertained on the evidence is whether there are reasonable grounds for such a belief, rather than the existence of the fact itself, it seems to me that to require proof of the fact itself and proceed to determine whether it has been established is to demand the proof of a different fact from that required to be ascertained. It seems to me that the use by the statute of the expression “reasonable grounds for believing” implies that the fact itself need not be established and that evidence which falls short of proving the subversive character of the organization will be sufficient if it is enough to show reasonable grounds for believing that the organization is one that advocates subversion by force, etc.

Furthermore, I have reviewed the secret material, both in advance of the hearing and after considering the submissions of counsel, and find that the visa officer had more than adequate grounds upon which to base his decision that the applicant should not be admitted to Canada.

CONCLUSIONS

My conclusions in this application are summarized as follows:

(1) Subsection 82.1(10) of the Immigration Act does not infringe section 7 of the Canadian Charter of Rights and Freedoms;

(2) The visa officer was not functus officio and had jurisdiction to revoke the applicant’s visa;

(3) There was no breach of the applicant’s right to procedural fairness; and

(4) The visa officer did not fetter his discretion and had adequate grounds upon which to base his decision.

Accordingly, this application is dismissed.

The applicant and the respondent submitted questions for certification and I have decided that the following questions should be certified:

1. Does subsection 82.1(10) of the Immigration Act infringe section 7 of the Canadian Charter of Rights and Freedoms and, if so, is the infringement demonstrably justified in a free and democratic society, pursuant to section 1 of the Charter?

2. Does subsection 82.1(10) of the Immigration Act infringe paragraph 2(e) of the Canadian Bill of Rights?

3. Can a visa officer revoke permanent resident visas, once they have been issued, or is the visa officer functus officio?

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