T-398-90
Chang-Jie Chen (Applicant)
v.
Minister of Employment and Immigration and
Secretary of State for External Affairs (Respond-
ents)
INDEXED AS: CHEN V. CANADA (MINISTER OF EMPLOYMENT
AND IMMIGRATION) (T.D.)
Trial Division, Strayer J.—Toronto, April 23;
Ottawa, May 10, 1991.
Immigration — Application for permanent residence as
independent immigrant — Sufficient assessment units awarded
— Completion of process delayed Applicant sending immi
gration officer Christmas gift of money — Called in for
interview with different official — Not told at outset bribery
reason therefor — Admitting wrongdoing after initial denial
— Application denied (I) for lying (2) as units awarded not
reflecting establishment chances Decision quashed by cer-
tiorari — Denial of fairness — Purpose of Act, s. 19(2)(d)
explained — Regulations, s. /1(3) interpreted Criteria
related to immigrant's ability to be self-sufficient Visa
officer not to ignore units awarded, add to s. 19 crimes
excluding applicants.
Judicial review Prerogative writs Certiorari Denial
of independent immigrant's permanent residence application
— Awarded sufficient assessment units, provisionally accepted
— Completion of process prolonged Applicant sending
immigration officer Christmas gift Called in for interview
with different official Not told at outset of concern about
bribery — Admitting wrongdoing after initial denial —
Application denied for lying to officer — Decision quashed for
denial of fairness Not given adequate opportunity to
explain conduct Officer exceeding discretion under Regula
tions Not to disregard units awarded, reject immigrant for
possibly having committed offences not found in Act s. 19.
This was an application for certiorari to quash the refusal by
an immigration officer to issue a visa for permanent residence
and for mandamus requiring the respondents to consider and
process the application in accordance with law. The applicant, a
microbiology technologist and citizen of the People's Republic
of China, applied to the Canadian Consulate General in New
York for permanent residence in Canada as an independent
immigrant. He was interviewed in September 1987 by an
Immigration Programme Officer and awarded 73 units of
assessment — enough for a permanent residence visa under
subparagraph 9(1)(b)(î) of the Immigration Regulations. He
was later informed by a letter dated July 12, 1988 that he and
his wife had been provisionally accepted as immigrants, but
they would have to wait a few months for security clearance. In
December, 1988, applicant sent the immigration officer a
Christmas card in which $500. was enclosed. When the latter
notified her superior of this, applicant was called in for an
interview with a different immigration official. The officer who
conducted this interview did not immediately address the sub
ject of the apparent bribe. When asked if he had given any gifts
to the other officer, the applicant at first denied it but eventual
ly admitted his wrongdoing. His application was refused on two
grounds: (I) for having lied to an immigration officer, contrary
to subsection 9(3) of the Immigration Act, thus rendering him
inadmissible under paragraph I 9(2)(d) of the Act, and (2) that
the units awarded did not reflect applicant's chances of becom
ing established in Canada (subsection 11(3) of the Regula
tions).
The issues were whether the immigration officer had dis
charged the duty of fairness and whether his decision was based
on reasons expressly or impliedly authorized by the Act and
Regulations.
Held, the application should be allowed.
The immigration officer's decision had to be quashed for a
denial of fairness. Applicant should have been told, at the
outset, the reason for the second interview: the concern over the
apparent attempt to bribe. It was not just an ordinary interview
but the review of an earlier, favourable assessment resulting in
applicant being "provisionally accepted". Fairness required
that the officer give the applicant every opportunity to explain
his conduct. This duty had not been fulfilled.
If the applicant lied concerning his gift to the immigration
officer, that did not automatically render him inadmissible.
Paragraph 19(2)(d) speaks in the present tense and refers to
the moment when the final decision as to admissibility is made,
not to prior events. The sole purpose of the paragraph is to
render inadmissible those who do not meet the conditions of
admissibility set out in the Act.
Answering the question as to whether the discretion given by
subsection 11(3) of the Regulations had been properly exer
cised necessitated the interpretation of that provision. It was
inconceivable that it gave a visa officer an unlimited mandate
to decide who to let in. The factors identified in the Regulations
were related to the immigrant's ability to be economically
sustained other than by the state. Even the criteria of "personal
suitability" were primarily related to the ability to be self-sus
taining. Considering this emphasis on economic factors, it could
not have been intended that, in exercising his discretion, a visa
officer might ignore units of assessment and reject an immi
grant for essentially non-economic reasons. The "good reasons"
mentioned in the subsection had to be such as to permit him to
conclude that the immigrant could not become established in
the economic sense. If an immigrant was to be excluded as
immoral, for misconduct or for having a potential for criminal-
ity or sedition, that was to be accomplished by the section 19
process, not by the exercise of a visa officer's subsection 11(3)
discretion. Section 19 excludes those who have committed, or
are likely to commit, certain serious crimes. The official had
rejected applicant in that he may have committed offences
against the Immigration Act and the Criminal Code. Thus the
visa officer erred, for it was open to him neither to add to the
statutorily prohibited categories of malefactors nor to make
determinations of guilt.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Criminal Code, R.S.C., 1985, c. C-46, s. l21(1)(a)(i).
Federal Court Rules, C.R.C., c. 663, R. 324.
Immigration Act, R.S.C., 1985, c. 1-2, ss. 9(3),
19(1)(a),(2)(d),I14(1)(a).
Immigration Regulations, 1978, SOR/78-172, ss. 8(1)(a)
(as am. by SOR/85-l038, s. 3), 9(I)(b)(i) (as am. by
SOR/83-675, s. 3; SOR/85-l038, s. 4), 11(3) (as am.
by SOR/8l-461, s. I); Sch. I (as am., idem, s. 8).
CASES JUDICIALLY CONSIDERED
APPLIED:
Kang v. Minister of Employment and Immigration,
[1981] 2 F.C. 807; (1981), 37 N.R. 551 (C.A.).
REFERRED TO:
Zeng v. Canada (Minister of Employment & Immigra
tion) (1991), 12 1mm. L.R. (2d) 167 (F.C.A.); Uy v.
Canada (Minister of Employment and Immigration),
[1991] 2 F.C. 201; (1991), 12 1mm. L.R. (2d) 172
(C.A.).
COUNSEL:
Diane C. Smith for applicant.
Lois Lehmann for respondents.
SOLICITORS:
Rotenberg & Martinello, Don Mills, Ontario,
for applicant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for order ren
dered in English by
STRAYER J.:
Relief Requested
The applicant seeks certiorari to quash a deci
sion made by an officer of the respondents and
communicated to him in a letter of February 14,
1989 refusing his application for permanent resi
dence in Canada. He also seeks mandamus requir
ing the respondents to consider and process his
application for permanent residence in accordance
with the law and to determine if it would be
contrary to law to grant landing to him.
Background Facts
The applicant is a citizen of the People's Repub
lic of China. He worked in Canada from 1983 to
1985 as a microbiology technologist at McMaster
University. He then moved to the United States
working at the University of Illinois under some
form of temporary visa. By letter from his Toronto
lawyers dated July 27, 1987 he applied to the
Canadian Consulate General in New York for
permanent residence in Canada as an independent
immigrant, stating his intended occupation to be
Medical Laboratory Technologist. He was inter
viewed at the Consulate on September 29, 1987 by
Sara Trillo, an immigration programme officer.
During the course of the interview she assessed
him, as required by paragraph 8(1)(a) of the
Immigration Regulations, 1978 [SOR/78-172 (as
am. by SOR/85-1038, s. 3)], on the basis of the
factors listed in Column I, Schedule I [as am.
idem, s. 8] of the Regulations, awarding him 73
units. This was enough to satisfy the requirements
under subparagraph 9(1)(b)(î) [as am. by SOR/
83-675, s. 3; SOR/85-1038, s. 4] for the issue of a
visa for permanent residence. She says that she
indicated to him he had passed his interview and it
would then be necessary for him, his wife, and his
daughter (the latter being in China) to pass a
medical test and a security check.
Thereafter some fifteen months elapsed in which
very little progress was made. Medical clearances
were obtained for the applicant and his wife and
ultimately for their daughter in China, the latter
being achieved only after great difficulty and with
some special efforts by Ms. Trillo. He was
informed by a letter dated July 12, 1988 that he
and his wife had been "provisionally accepted as
immigrants". The letter went on to say:
If Canadian security and medical examination requirements
are met, visas for permanent residence in Canada will be issued
However when he and his solicitor both enquired
of Ms. Trillo in October, 1988 as to what was
happening she advised them that there still
remained the "background" or security clearance
and that this would take "a few months". The
applicant was becoming more anxious as his visa
permitting him to work in the United States
expired in September, 1988. On two occasions in
correspondence he offered to pay any "costs or
fees" in order to expedite the matter. On or about
December 2, 1988 he sent a Christmas card to Ms.
Trillo with a note thanking her for her efforts.
Enclosed in the Christmas card was the sum of
(U.S.) $500. Ms. Trillo immediately brought this
to the attention of her superior, Mr. R. A.
Nauman, Program Manager, Social Affairs, in
charge of immigration at the Consulate. The
matter was then put in the hands of Howard M.
Spunt, Consul (Immigration) at whose direction
the applicant was asked to come to the Consulate
for an interview on December 29, 1988.
Without going into all the factual disputes over
this interview, it appears to me that Mr. Spunt did
not either in the notification to Mr. Chen nor in
the opening segment of the interview indicate that
his primary concern was the apparent bribe which
the applicant had offered to Ms. Trillo nor did he
even indicate that he knew of the receipt of the
money by Ms. Trillo. He reviewed Mr. Chen's
application and reassessed it with results similar to
those achieved by Ms. Trillo. In particular he
awarded the applicant 7 out of 10 points, just as
Ms. Trillo had done, under the category of "Per-
sonal Suitability", being Item 9 in Column I of
Schedule I of the Regulations. He gradually got
into the subject of the apparent bribe, asking the
applicant if he had given any gifts to Ms. Trillo or
if he had misplaced any funds recently. The appli
cant at first denied any such thing but eventually
admitted that he had sent the money to Ms. Trillo.
He explained that this was an oriental custom to
give gifts during the holiday season to special
friends. He said that he and his wife had much
appreciated the efforts Ms. Trillo had made on
their behalf. (Since that time he has also suggested
that he had given the money so that if there were
any special costs involved in expediting the matter,
for example through the use of long distance tele
phone or telex, the money could be used for that
purpose.) Later in the interview he apologized for
what he then recognized as his wrongful behavi
our. The money was returned to him and he signed
a receipt for it. At the end of the interview he was
told by Mr. Spunt that his application would be
reviewed in the light of this interview.
On January 26, 1989 Mr. Spunt wrote a memo
randum to Mr. Nauman purportedly to seek the
approval of Mr. Nauman, as Senior Immigration
Officer, for the exercise under subsection 11(3) [as
am. by SOR/81-461, s. 1] of the Immigration
Regulations, 1978 of the special discretion of
refusal to issue an immigrant visa to an applicant
even though he has obtained the necessary units of
assessment required by section 9 of the Regula
tions. Such approval must be sought in writing in
accordance with subsection 11(3). Mr. Nauman
endorsed this memo the same day with the words
"I agree" and gave instructions for a suitable
refusal letter to be drafted. Subsequently on Feb-
ruary 14, 1989 the refusal letter was sent and it is
the decision embodied in that letter which the
applicant seeks to have quashed in the present
proceedings. As I understand that letter, it involves
a refusal of permanent residence for essentially
two reasons: first, that the applicant had lied to an
immigration officer contrary to subsection 9(3) of
the Act [Immigration Act, R.S.C., 1985, c. I-21
and that this meant that he had not complied with
a requirement of the Act and was therefore inad
missible pursuant to paragraph 19(2)(d) of the
Act; and second, that Mr. Spunt was exercising his
discretion under subsection 11(3) of the Regula
tions to refuse Mr. Chen's application even though
the latter had been awarded the required number
of units of assessment because, in the words of
subsection 11(3):
11... .
(3) ... there are good reasons why the number of units of
assessment awarded do not reflect the chances of the [appli-
cant] ... of becoming successfully established in Canada ....
It is worth noting in passing the potential for
frustration and even desperation on the part of
applicants for permanent residence arising out of a
process such as this. Although the applicant was
successfully interviewed and tentatively approved
in accordance with the unit assessment on Septem-
ber 27, 1987, the necessary security clearance for
him and his family was not ultimately received by
the Consulate until May 9, 1989. In the meantime
the applicant, his wife, and his daughter had all
obtained medical clearances which, through the
passage of time, had expired on October 2, 1988
(in the case of the applicant and his wife) and on
March 4, 1989 (in the case of the daughter in
China). In the meantime also the applicant was
faced with potential difficulties in the United
States, his visa having expired there in September,
1988, a year after he was first interviewed for
permanent residence in Canada. This may help to
explain Mr. Chen's conduct, even if it does not
excuse it.
I will set out any other pertinent facts as they
appear relevant to my conclusions. This applica
tion was argued in part together with that of
Parmjit Singh Mangat, T-3161-90 [Mangat v.
Canada (Minister of Employment & Immigra
tion), not yet reported] and some of the reasons
herein will also apply in that case.
Conclusions
I have concluded that the decision of Mr. Spunt
set out in the letter of February 14, 1989, must be
quashed for several reasons.
First, there was a denial of fairness. I accept, as
argued by the respondents, that this was an
administrative process only and that it was open to
one visa officer, Mr. Spunt, to review an applica
tion originally processed by another visa officer, in
order to reach a final conclusion. It is obvious that
with an organization as large as the Employment
and Immigration Commission, with retirements
and rotation of officers at particular posts, an
application which is initially considered by one
officer may be the subject of a later final decision
by another officer, taking into account new infor
mation or changed circumstances. I also accept
that it is not for the Court to sit on appeal from
findings of fact made by a visa officer. But not
withstanding all that, I believe that fairness
required in these circumstances that the visa offi
cer, at the time of the interview on December 29,
1988, tell the visa applicant at the outset the real
purpose of the interview and the major concern of
the officer, namely the alleged bribe. If one were
carrying out an interview to probe general issues
such as the existence of humanitarian grounds it
might be appropriate to proceed by indirection,
but this was more than an ordinary interview: it
was the review of an earlier favourable assessment
where the applicant had been "provisionally
accepted" (in the language of Ms. Trillo's letter of
July 12, 1988). That acceptance was now put in
jeopardy by one event — the alleged bribe. The
results of the meeting were potentially very impor
tant for the applicant and he should have known
what it was that concerned the visa officer and
required explanation. He may well have wondered,
for example, as the interview progressed, as to
whether it was his conduct or that of Ms. Trillo
which was being questioned. The visa officer, Mr.
Spunt, may have as he says acted out of good
motives to allow Mr. Chen to explain his conduct
and not to "lose face". But when Mr. Spunt was
possessed of a fact which, if unexplained, was in
his mind sufficient to reject Mr. Chen's applica
tion, it was incumbent on him to state that fact
and give Mr. Chen every opportunity to explain in
that fashion. Fairness required no less.
The remaining alleged causes of invalidity,
although argued under various rubrics by counsel,
really come down to the question of whether Mr.
Spunt's decision was based on reasons which are
authorized by the Act and the Regulations either
expressly or impliedly.
To answer this question I would begin by con
sidering the first reason given by Mr. Spunt in the
letter of February 14th refusing the application for
permanent residence. As mentioned above, that
reason is based on paragraph 19(2)(d) of the
Immigration Act which provides that immigrants
shall not be granted admission if they
19....
(d) ... cannot or do not fulfil or comply with any of the
conditions or requirements of this Act or the regulations ....
The failure to comply relied upon by Mr. Spunt in
the case of the applicant is found in subsection
9(3) of the Act which provides:
9....
(3) Every person shall answer truthfully all questions put to
that person by a visa officer and shall produce such documenta
tion as may be required by the visa officer for the purpose of
establishing that his admission would not be contrary to this
Act or the regulations.
Thus it was said that the applicant failed to
comply with the Act because he did not answer
truthfully when first asked about a gift sent to Ms.
Trillo. It appears to me, however, that I am
obliged to apply the rationale adopted by the
Federal Court of Appeal in Kang v. Minister of
Employment and Immigration' where that Court
said that the requirements referred to in paragraph
19(2)(d) do not include the requirement to tell the
truth as set out in subsection 9(3). The Court said
that paragraph 19(2)(d) speaks in the present
tense and refers to the moment when a final
decision is made on admissibility and not to events
prior to that. Further, and more importantly, the
Court said that the sole purpose of paragraph
19(2)(d):
... is to render inadmissible all those who do not meet the
conditions of admissibility prescribed by or under the Act.'
The Court of Appeal did not consider a false
answer to a question to involve a condition of
admissibility. It did recognize that there might be
circumstances in which a false answer might justi
fy refusal of admission, but such an answer did not
' [1981] 2 F.C. 807 (C.A.).
2 Ibid., at p. 810.
have the "automatic effect" of barring admission
pursuant to paragraph 19(2)(d).
The other reason given by Mr. Spunt for his
decision involved the exercise of his discretion
under subsection 11(3) of the Regulations. This
raises very difficult questions as to the proper
interpretation of that subsection which provides as
follows:
11. ...
(3) A visa officer may
(a) issue an immigrant visa to an immigrant who is not
awarded the number of units of assessment required by
section 9 or 10 or who does not meet the requirements of
subsection (1) or (2), or
(b) refuse to issue an immigrant visa to an immigrant who is
awarded the number of units of assessment required by
section 9 or 10,
if, in his opinion, there are good reasons why the number of
units of assessment awarded do not reflect the chances of the
particular immigrant and his dependants of becoming success
fully established in Canada and those reasons have, been
submitted in writing to, and approved by, a senior immigration
officer.
More specifically, the basic question is — on what
grounds can the visa officer exercise his discretion
in forming the opinion that there are "good rea
sons" why the number of units awarded do not
reflect adequately the chances of an immigrant
becoming "successfully established" in Canada? It
is inconceivable that this was intended to give a
visa officer an unlimited mandate to decide wheth
er a particular immigrant is generally suitable or
not as a future member of Canadian society, given
the existence of other, extensive, provisions in the
Act for identifying those who are suitable or
unsuitable. It may first be observed that subsection
11(3) cannot be taken to overlap the grounds of
mandatory exclusion set out in the description of
the "inadmissible classes" found in section 19.
Indeed that section has its own provision, subsec
tion 19(3), for temporary exceptions to be made by
a "senior immigration officer or an adjudicator" to
those exclusionary rules. Instead the discretion
provided to a visa officer in subsection 11(3) of the
Regulations must be seen as integral to the exer
cise by the Governor in Council of his regulation-
making authority under paragraph 114(1)(a) of
the Act to establish selection standards (the source
of the "point system" or "units of assessment").
That paragraph authorizes the Governor in Coun
cil to make regulations:
1i4.(1)...
(a) providing for the establishment and application of selec
tion standards based on such factors as family relationships,
education, language, skill, occupational experience and other
personal attributes and attainments, together with demo
graphic considerations and labour market conditions in
Canada, for the purpose of determining whether or not an
immigrant will be able to become successfully established in
Canada.
The selection standards so adopted and applicable
to the applicant by paragraph 8(1)(a) and sub-
paragraph 9(1)(b)(i) of the Regulations are found
in Column I, Schedule I of those Regulations. The
factors identified in Column I are: "Education",
"Specific Vocational Preparation", "Experience",
"Occupational Demand", "Arranged Employment
or Designated Occupation", "Demographic Fac
tor", "Age", "Knowledge of English and French
Languages", "Personal Suitability", and "Rela-
tive". While it is nowhere clearly spelled out, the
selection standards authorized for use by para
graph 114(1)(a) of the Act, and the actual factors
identified in Schedule I of the Regulations, appear
to be essentially related to the ability of an immi
grant to make a living in Canada or to be economi
cally sustained other than by the State. Of the
factors in Column I there might be some ambigui
ty about "Knowledge of English and French Lan
guages", although such knowledge apart from
being socially important is obviously very impor
tant for the making of a living. The criteria for
assessing points for "Age" obviously give a prefer
ence to those in their prime working years. The
factor of "Personal Suitability", while seemingly
ambiguous, according to the criteria set out in
Column II authorizes the awarding of units:
9. Personal suitability ... to reflect the personal suitability of
the person and his dependants to become successfully estab
lished in Canada based on the person's adaptability, motiva
tion, initiative, resourcefulness and other similar qualities.
These enumerated criteria of personal suitability,
while not wholly irrelevant to social success, seem
primarily related to the ability to support oneself.
The term "and other similar qualities" should, I
think, be read ejusdem generis with the enumer
ated criteria which precede it.
Given this emphasis on economic factors as
identified by both Parliament and the Governor in
Council for determining whether an immigrant
can become "successfully established" in Canada,
it is difficult to read the discretionary power grant
ed to a visa officer by subsection 11(3) of the
Regulations as allowing him to ignore the number
of units of assessment and to determine, for essen
tially non-economic reasons, that an immigrant
does not have a chance of becoming successfully
established in Canada. While the subsection only
requires that the visa officer have "good reasons",
those reasons must be such as lead him to believe
that the immigrant cannot become successfully
established in the economic sense. They do not
include such reasons as that an immigrant will
probably not be a good neighbour, a good resident,
or ultimately a good citizen of Canada; or that the
immigrant is a bad or immoral person if judged on
his past conduct. Section 19 excludes persons in
carefully specified situations on the basis of their
past conduct or their potential for criminality or
sedition. If they are to be excluded for such rea
sons, it must be done under the process contem
plated by section 19 and not through a visa officer
exercising his discretion under subsection 11(3) of
the Regulations because he feels that a particular
immigrant is undesirable. Presumably the security
check which is regarded as a pre-condition for
admission is intended to facilitate the application
of the criteria in provisions such as paragraphs
19(1)(c)-(g) or 19(2)(a) and (b), just as the medi
cal examinations assist in the application of para
graph 19(1)(a). The security check results in this
case had not even been received by the Consulate
when Mr. Spunt rendered his decision.
The decision in question as purportedly made
under subsection 11(3) is flawed for other reasons.
That subsection requires that prior to the exercise
of such discretion a visa officer must submit his
reasons in writing to a senior immigration officer
who must approve them. This Mr. Spunt purport
ed to do in his memorandum of January 26, 1989
to Mr. Nauman. But the reasons submitted by him
in that memorandum for a negative exercise of
discretion are invalid as unrelated to the purposes
of subsection 11(3).
The first reason he gives is that Mr. Chen lied at
the interview with him. Apart from the unfairness
of that interview, which I have dealt with above,
for the reasons which I have set out as to the
nature of permissible criteria for judging success
ful establishment I do not consider that lying to a
visa officer is per se proof of inability to become
suitably established. There is little doubt that what
Mr. Chen did was wrong but Mr. Spunt in no way
demonstrated to a senior immigration officer how
this shortcoming would prevent Mr. Chen from
making a living in Canada or cause him to become
a burden to the Canadian State.
A second reason given for the exercise of discre
tion was that, in the view of Mr. Spunt, the
applicant "may have committed an offence"
against the Immigration Act and an offence under
subparagraph 121(1)(a)(i) of the Criminal Code
[R.S.C., 1985, c. C-46] (dealing with attempted
bribery of government officials). Again, this is not
a proper reason for the negative exercise of discre
tion under subsection 11(3). As I have said before,
section 19 of the Immigration Act specifically
precludes certain people, carefully defined, who
have in the past committed, or are likely in the
future to commit, certain kinds of serious crimes. I
do not accept that visa officers can under subsec
tion 11(3), whether in the name of "personal
suitability" or otherwise, add at will to the prohib
ited categories of past or future malefactors. Fur
thermore, it is not acceptable on grounds of fair
ness for a visa officer to - make such determinations
of guilt.
The third reason given by Mr. Spunt to Mr.
Nauman for the exercise of discretion was that the
applicant
... has displayed personal suitability which is incompatible
with what is required for an immigrant in his category.
This raises difficult questions as to the relationship
between an assessment made in accordance with
sections 8 and 9 and Schedule I, and a finding
under subsection 11(3) that such an assessment of
units should not be determinative of whether a
person can become successfully established. If the
unit assessment is wrong, then the visa officer
should change that assessment. In this case Mr.
Spunt reviewed the assessment of "personal suita
bility" made by Ms. Trillo as 7 units out of 10 and
he confirmed it. I fail to see how he can then offer
as a reason for a negative exercise of discretion
that the applicant does not have a sufficient degree
of personal suitability. It is conceivable that the
discretionary power under subsection 11(3) could
properly be used where an immigrant was so lack
ing in one of the factors listed in Column I that a 0
rating would not adequately reflect the negative
impact of that deficiency on his ability to become
successfully established. But it appears to me that
a pre-condition for exercising the discretion on
that ground would be to rate that factor at 0 in the
assessment.
The discretionary power in subsection 11(3) is
an extraordinary one which, it has been held, must
be exercised in strict conformity with the require
ment of submitting written reasons to a senior
immigration officer and getting his approval. 3 I
have no doubt this means that the reasons given
for such exercise of discretion must be the real
reasons, and must be lawful reasons which these
were not.
3 Zeng v. Canada (Minister of Employment & Immigration)
(1991), 12 1mm. L.R. (2d) 167 (F.C.A.); Uy v. Canada (Min-
ister of Employment and Immigration), [1991] 2 F.C. 201
(C.A.).
The applicant also put some reliance on the
doctrine of "legitimate expectations", said to be
based on statements allegedly made by Ms. Trillo
at the end of the interview on September 27, 1987,
and on her letter of July 12, 1988 advising the
applicant that he and his wife had been "provision-
ally accepted". Given my other conclusions, I need
not address this issue.
Disposition
I will therefore grant the order of certiorari
quashing the decision recorded in the letter from
Mr. Spunt to the applicant of February 14, 1989. I
will also issue an order of mandamus requiring
that the respondents consider and process the
application of the applicant for permanent resi
dence in Canada in accordance with law; and more
specifically that he be given a new interview, and
that his application be determined, by a different
visa officer at a different visa office in the United
States most convenient for the parties.
The respondents have requested that the issue of
costs be addressed after a substantive disposition
of this application. I will therefore leave it to the
applicant to endeavour to get agreement on an
order as to costs and if this can be done it can be
submitted in writing under Rule 324 [Federal
Court Rules, C.R.C., c. 663]. If not, the parties
can arrange for the matter to be spoken to at an
appropriate time.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.