Judgments

Decision Information

Cheung v. Minister of Employment and Immigration

Collection	Judgments
Date	1981-01-30
Report citation	[1981] 2 F.C. 764
File numbers	A-571-80
Subjects	Administrative Law

Decision Content

A-571-80

Him-Fook Cheung (Applicant) v.

Minister of Employment and Immigration (Respondent)

Court of Appeal, Thurlow C.J., Heald and Urie JJ.—Vancouver, January 26 and 30, 1981.

Judicial review — Immigration — Adjudicator issued a deportation order based on the statutory declarations of an immigration officer, reciting his interpretations of what was said by the applicant — Applicant was not allowed to cross- examine the deponent of the declarations — Whether the Adjudicator erred in law — Application to review and set aside deportation order is allowed — Immigration Regula tions, 1978, SOR/78-172, ss. 31(2), 32(1) — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.

The Adjudicator issued a deportation order based on the statutory declarations of an immigration officer, reciting his interpretations of what the applicant is alleged to have said. The declarations did not purport to give the substance of what was said. The applicant did not testify and was not allowed to cross-examine the deponent of the declarations. The question is whether the Adjudicator erred in law.

Held, the Adjudicator erred in law in denying the request of applicant's counsel for leave to cross-examine on the declarations.

Per Thurlow C.J.: The authority of the Adjudicator to refuse to allow the person concerned to present evidence can be exercised only when there are proper grounds for so doing. In the present case there were no such grounds.There were good reasons why the immigration officer should have been called as a witness since what was in his statutory declarations consisted largely of interpretations and conclusions rather than state ments of his recollection of what was said. The Adjudicator held that because the statutory declaration was that of an immigration officer, it should not be subject to challenge by the questioning of the immigration officer until some reason to doubt it had first been established by the evidence. The Adjudicator's approach was wrong.

Per Urie J.: It is incumbent upon the Adjudicator to be sure that he bases his decision on the best evidence that the nature of thé case will allow. That ordinarily would require viva voce evidence in the proof of essential ingredients, if it is at all possible. The circumstances of each case will dictate what evidence the Adjudicator will accept and the weight which will be given to it.

APPLICATION for judicial review. COUNSEL:

David Stoller for applicant. Paul Partridge for respondent.

SOLICITORS:

John Taylor Associates, Vancouver, for applicant.

Deputy Attorney General of Canada for respondent.

The following are the reasons for judgment delivered orally in English by

THURLOW C.J.: The deportation order attacked in this proceeding was based on findings by the Adjudicator that the applicant, Cheung, had (1) engaged in employment in Canada without a permit, (2) entered Canada as a visitor and remained therein after he had ceased to be a visitor and (3) remained in Canada by misrepre sentation of a material fact.

A substantial portion of the evidence on which these findings were based consisted of two statu tory declarations made by R. A. Beresh, an immi gration officer, reciting inter alia a number of admissions said to have been made to him by the applicant in the course of interviews with him in August 1980. The admissions are interpretations by Beresh of what the applicant is alleged to have said. They do not purport to be recitations of what the applicant said.

The record shows that these declarations were tendered by the case presenting officer and were received in evidence after the applicant, whose evidence was given in part through an interpreter, had said with respect to each of them in the presence of his counsel, that he understood it and had no objection to it.

At a later stage when asked if he had evidence to offer, counsel for the applicant sought to have Mr. Beresh called as a witness. The discussion that followed shows that counsel wished to test the reliability of what was in the declarations. This request was refused by the Adjudicator who in the course of the discussion expressed his reasons in the following passages:

ADJUD. Well, Mr. Vick, I presume your reason for asking

for Officer Beresh to appear is that you wish to attack the trustworthiness of the document that he has completed. Now, unless you can produce some additional evidence or, wish to produce additional evidence, 1 will have to base my deci sion on the document which is before me.

Do you have any additional evidence to produce?

COUNSEL Additional evidence apart from the evidence of Mr. Beresh?

ADJUD. Well, on behalf of your client. In other words, if you are going to attack the validity of a docu ment in front of you you must be prepared to produce evidence to attack that. Now, as you previously indicated, you are not prepared to allow your client to answer questions based on what he feels is and what you feel is his right, based on the Cole decision. I have of course indicated that I don't subscribe to your interpre tation of that decision, but the fact still remains I cannot compel him to answer questions. So, if you take the position that you wish to attack the evidence of the Commission, in order to attack that, you are going to have to produce evidence yourself to counterattack it.

COUNSEL The evidence I hope to produce, Mr. Adjudica tor, would be the evidence of Immigration officer Beresh.

ADJUD. Since that is not available to you, then if you have no further evidence then I will have to make a decision on what is before me.

ADJUD. Prior to the lunch hour, Counsel indicated to this Inquiry that when requested to present evidence on behalf of his client Mr. Cheung, that he wished to call Immigration officer Beresh to give evidence concerning his Statutory Declarations which had been entered into these proceedings, Exhibit C-6 and C-7. During the lunch hour recess I have had an opportunity to reflect on that matter and while I am still not convinced that it is necessary to call officer Beresh I would once again ask Counsel to recite for the record his purpose in calling officer Beresh to clarify whether he is prepared to present any evidence attacking the trustworthiness of Mr. Beresh's Declaration.

It is my view that the Declaration of an immigra tion officer is presumptively correct and nothing can be achieved by cross-examining that officer in his methodology in administering the Immi gration Act.

ADJUD. Well, Counsel, I would have to simply reaffirm my position, and that being that this tribunal is entitled to act on any material which is logically probative; that when an immigration officer com pletes' a Statutory Declaration that that docu ment can be considered to be credible and trust worthy and presumptively correct, unless the Person Concerned or his Counsel are prepared to place on evidence some evidence to contradict that evidence. And therefore, it is my view that the calling of immigration officer Beresh as a witness simply to embark on what may be

regarded as a `fishing expedition' would serve no useful purpose.

While an immigration inquiry is not a trial, either criminal or civil, the right of a person, whose immigration status is the subject of the inquiry, to call evidence is not one that can be lightly denied. In my opinion it cannot properly be denied for reasons such as those given by the Adjudicator. Had Beresh been called as a witness to tell what he knew, on his oath as required by Regulation 30 of the Immigration Regulations, 1978, SOR/78-172, as, in my opinion, if he had evidence to give, he should have been, unless there were compelling reasons why he could not be present, the applicant either personally or by his counsel, would have had an unqualified right under Regulation 31(2) to cross-examine him.

The Regulation reads:

31....

(2) The person concerned or his counsel shall be given a reasonable opportunity to examine any evidence and to cross- examine any witnesses presented by the case presenting officer.

The applicant's right under this Regulation to cross-examine Mr. Beresh did not arise because he was not called by the case presenting officer to give evidence.

Under Regulation 32(1), however, a further right is conferred.

The Regulation reads:

32. (1) When the case presenting officer has concluded presenting the evidence referred to in subsection 31(1), the person concerned or his counsel shall be given a reasonable opportunity to present such evidence as he deems proper and the adjudicator allows:

While the right of the person concerned under this Regulation to present "such evidence as he deems proper" is subject to the qualification expressed in the words "and the adjudicator allows" the authority of the Adjudicator to refuse to allow the person concerned to present evidence can be exercised only when there are proper grounds for so doing.

In the present case there were, in my view, no such grounds. There were, as I see it, good reasons, which the Adjudicator does not appear to have recognized, why Beresh should be called as a witness since what was in his statutory declara-

tions consisted largely of interpretations and con clusions rather than statements of his recollection of what was said. The Adjudicator, however, required the applicant, as a pre-condition of having Beresh called, to present evidence to con tradict the declaration, holding, as it seems to me, that because the statutory declaration was that of an immigration officer, it should not be subject to challenge by the questioning of the immigration officer until some reason to doubt it had first been established by other evidence.

In my view, the Adjudicator's approach to the determination of whether the person concerned should be allowed to call the immigration officer to give evidence was wrong. It was also wrong to characterize counsel's purpose as one of cross- examining the officer "in his methodology in administering the Immigration Act", whatever that may mean, and as one of embarking on a "fishing expedition" and to deny the calling of the witness on such pretexts.

Accordingly, in my view, the Adjudicator erred in law in refusing the applicant's request that Beresh be called and the findings, based as they are on the Beresh declarations, cannot stand.

In the course of argument, counsel for the Min ister pointed to evidence presented by the appli cant after the findings had been made which, he argued, would justify the findings. It is apparent, however, from the record that the findings were in no way based on that evidence and even if it would be sufficient to justify such findings, or some of them, it is not the function of this Court to weigh the evidence or to make findings on it. That is the function of the Adjudicator.

I would set aside the deportation order and refer the matter back to an Adjudicator for reconsidera tion and redetermination on the basis that the applicant will be entitled to examine immigration officer Beresh on the two statutory declarations made by him on August 18, 1980, and identified as Exhibits C-6 and C-7, if they are received or remain in evidence at the resumed inquiry.

* * *

The following are the reasons for judgment delivered orally in English by

HEALD J.: In my view the Adjudicator's deci sion herein ordering the deportation of the appli cant cannot be allowed to stand and should be set aside.

In determining that the applicant was in breach of paragraphs 27(2)(b), (2)(e) and (2)(g) of the Immigration Act, 1976, S.C. 1976-77, c. 52, the Adjudicator relied to a considerable degree on two statutory declarations sworn by immigration offi cer R. A. Beresh and dated August 18, 1980. (See transcript pages 22 and 23.) At the special inquiry, counsel for the applicant requested that the Adjudicator permit him to examine immigration officer Beresh on the contents of these two statu tory declarations. The Adjudicator refused this request stating: (see transcript page 18) "It is my view that the Declaration of an immigration offi cer is presumptively correct and nothing can be achieved by cross-examining that officer in his methodology in administering the Immigration Act." And again at page 19 of the transcript the Adjudicator stated: "And therefore, it is my view that the calling of immigration officer Beresh as a witness simply to embark on what may be regard ed as a `fishing expedition' would serve no useful purpose."

With respect, I am unable to agree with the Adjudicator that the Beresh declarations deal merely with Mr. Beresh's methodology in adminis tering the Immigration Act, 1976 or that for appli cant's counsel to cross-examine him thereon would be "embarking on a fishing expedition". On the contrary, both declarations contain much substan tive information relevant to the issues to be deter mined by the Adjudicator. In the first declaration (Exhibit C-6) Mr. Beresh declared that: (1) the applicant admitted that he had lied to Mr. Beresh about his true employment record in Canada, and (2) the applicant admitted to having been illegally employed in the years 1975 to 1977 and again in 1978.

In the second declaration (Exhibit C-7), Mr. Beresh declared, inter alia, that:

(a) the applicant admitted that he had remained in Canada since the expiry of his visitor status

without the authorization of an immigration officer;

(b) the applicant admitted to having lied to an immigration officer when he told that officer that he was a landed immigrant of Canada;

It is to be noted that in both declarations Mr. Beresh draws a number of conclusions from the conversations which he had with the applicant. Those conclusions are very detrimental to the posi tion of the applicant since they are referred to extensively in the reasons given by the Adjudicator for reaching his decision. In my view, it was essential that applicant's counsel be given the op portunity to test and challenge in cross-examina tion the evidence of Mr. Beresh as accepted and relied on by the Adjudicator. Furthermore, in my view, the Immigration Regulations, 1978 require that the applicant be given that right'.

Accordingly, I have concluded that in denying the request of applicant's counsel for leave to cross-examine Mr. Beresh on his declarations, the Adjudicator erred in law so that the deportation order made by him should be set aside.

Counsel for the respondent submitted, however, that notwithstanding the Adjudicator's refusal to allow cross-examination on the declarations, there was documentary evidence adduced by counsel for the applicant during the second phase of the inqui ry (that is, the phase during which the Adjudicator addressed himself to the question as to whether or not he should issue a deportation order or a depar ture notice after having decided during the first phase that the applicant was a person described in paragraphs (2)(b), (2)(e) and (2)(g) of section 27 of the Immigration Act, 1976) which, by itself,

' See Regulation 31(2):

31....

(2) The person concerned or his counsel shall be given a reasonable opportunity to examine any evidence and to cross- examine any witnesses presented by the case presenting officer.