Digests

Au v. Canada (Minister of Citizenship and Immigration)

IMM-946-00

2001 FCT 243, Nadon J.

26/3/01

30 pp.

Application for judicial review of decision of visa officer James Schultz refusing applicant's application for permanent residence in Canada on ground inadmissible under Immigration Act, s. 19(1)(c.2)--Applicant, born in Hong Kong in February 1957, made application for permanent residence as member of Family Class at Commission for Canada in Hong Kong in July, 1992--Visa officer Michael MacKenzie basing refusal of application for permanent residence on applicant's criminal record in Hong Kong--Applicant's sponsor successfully appealed MacKenzie's refusal to Immigration Appeal Division (IAD)--Officer Schultz refusing application for permanent residence following review of new information not available at time of applicant's previous refusal, at successful appeal to IAD--Act, s. 77(5) only prohibiting officer Schultz from reaching same conclusions on grounds dealt with by IAD--Officer Schultz's decision to refuse applicant's application based on grounds not previously considered by IAD--Officer Schultz not precluded, by reason of Act, s. 77(5), from concluding as he did--No evidence officer Schultz decided matter improperly, prejudged matter to point of being unresponsive to applicant's arguments--No reasonable apprehension of bias arises from comments made by officer Schultz--Latter not breaching duty of fairness by not disclosing documents reproduced as exhibits D, E and F to applicant--Duty of fairness not breached if applicant given opportunity to respond to concerns raised in visa officer's mind by documents--Applicant given ample opportunity during interview to respond to officer Schultz's concerns arising as result of knowledge of triad activities--Duty of fairness not requiring visa officer agree with applicant's answers--Applicant aware of case to be met, had many opportunities to disabuse officer Schultz, to respond to concerns--Visa officer not breaching duty of procedural fairness--Standard of review for officer Schultz's decision unreasonableness simpliciter--Conclusion applicant inadmissible to Canada under Act, s. 19(1)(c.2) not unreasonable--Totality of record, including confidential affidavits, supporting officer Schultz's conclusions--Application dismissed--Immigration Act, R.S.C., 1985, c. I-2, ss. 19 (as am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 3; S.C. 1992, c. 47, s. 77; idem, c. 49, ss. 11, 122(c),(d); 1995, c. 15, s. 2; 1996, c. 19, s. 83; 2000, c. 24, s. 55), 77 (as am. by R.S.C., 1985 (2nd Supp.), c. 10, s. 6; (4th Supp.), c. 28, s. 33; S.C. 1992, c. 49, s. 68; 1995, c. 15, s. 15; 1999, c. 31, s. 134).