Ma v. Canada (Minister of citizenship and immigration)

Ma v. Canada (Minister of citizenship and immigration)
Court (s) Database
Federal Court Decisions
Date
2002-12-17
Neutral citation
2002 FCT 1303
File numbers
IMM-2355-01
Notes
Reported Decision
Decision Content
Federal Court Reports Ha v. Canada (Minister of Citizenship and Immigration) (T.D.) [2003] 2 F.C. 620
Federal Court Reports Ha v. Canada (Minister of Citizenship and Immigration) (T.D.) [2003] 2 F.C. 620
Date: 20021217
Docket: IMM-2355-01
Neutral citation: 2002 FCT 1303
Ottawa, Ontario, Tuesday the 17th day of December 2002
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
MAI HA
THA MAI HA
THIEN MAI HA
ARCHIEPISCOPAL CORPORATION OF WINNIPEG
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
DAWSON J.
[1] The individual applicants ("applicants") are citizens of Cambodia who bring this application for judicial review of the decision of a visa officer at the Canadian High Commission in Singapore which denied their application for permanent residence in Canada as Convention refugees seeking resettlement in Canada.
FACTUAL BACKGROUND
[2] The applicants are sisters and range in age from 29 to 41 years of age. In 1975 they, together with their parents and three other siblings, were forced to flee to Vietnam to escape the Khmer Rouge in Cambodia. The applicants have lived in Vietnam ever since. Their parents and three siblings immigrated to Canada in 1986 and in 1994.
[3] On September 8, 1998, the applicants applied at the Canadian High Commission in Singapore for permanent residence in Canada as Convention refugees seeking resettlement. Their application was sponsored by the St. Ignatius Refugee Committee, which is associated with the Archiepiscopal Corporation of Winnipeg, the corporate applicant.
[4] Initially a letter dated August 24, 1999 was sent to the applicants refusing their application. The applicants then applied for judicial review of that decision, and on the consent of the Minister the application for judicial review was allowed. The applicants' file was then reassigned to the current visa officer. An interview was scheduled for February 28, 2001. In response to two letters from the applicants' counsel requesting that he be allowed to attend the interview, the visa officer replied in writing on February 8, 2001 to the effect that:
Please note that we do not allow lawyers or representatives to attend the interview. You may wait in the waiting room but you will not be allowed to attend the interview.
[5] The interview took place on February 28, 2001 in the absence of the applicants' lawyer. On March 9, 2001, the visa officer decided to refuse the application for permanent residence. In so concluding, the visa officer found that the applicants did not meet the definition of Convention refugees seeking resettlement because they had not demonstrated a well-founded fear of persecution. The visa officer further concluded, as written in the refusal letter, that "there is another "durable solution" as you have become permanently resettled in Vietnam".
[6] The decision of the visa officer is recorded in more detail in the Computer Assisted Immigration Processing System ("CAIPS") notes where the officer wrote with respect to Mai Ha:
APPLICANT DOES NOT MEET THE DEFINITION OF A CONVENTION REFUGEE AND ALTHOUGH SHE IS SPONSORED BY A GROUP THERE ARE NO GROUNDS TO APPROVE HER APPLICATION. I AM NOT SATISFIED THERE ARE HUMANITARIAN OR COMPASSIONATE FACTORS THAT WOULD WARRANT APPROVAL OF HER APPLICATION ON THOSE GROUNDS.
[7] The visa officer then referred the file to a program manager in order for the application to be reviewed for humanitarian and compassionate ("H & C") considerations. On March 28, 2001, the program manager confirmed the decision of the visa officer and determined that there were no humanitarian and compassionate factors warranting approval of the application. Refusal letters dated April 11, 2001 were sent to the applicants.
THE ISSUES
[8] In challenging the decision of the visa officer the applicants raise five issues:
1. Did the visa officer err by not considering the compelling reasons exception?
2. Was the visa officer's finding of a "durable solution" in Vietnam perverse and capricious?
3. Did the visa officer breach the duty of fairness by improperly delegating the H & C decision to his program manager?
4. Was the duty of fairness breached when counsel was not allowed to attend the interview? and
5. Did the visa officer fetter his discretion by creating a rule that counsel cannot attend interviews?
ANALYSIS
(i) Did the visa officer err by not considering the compelling reasons exception?
[9] The Immigration Act, R.S.C. 1985, c. I-2 ("Act") in subsection 2(1) defined Convention refugee as:
"Convention refugee" means any person who
(a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or
(ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and
(b) has not ceased to be a Convention refugee by virtue of subsection (2),
but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act.
« réfugié au sens de la Convention » Toute personne_:
a) qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques_:
(i) soit se trouve hors du pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays,
(ii) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ou, en raison de cette crainte, ne veut y retourner;
b) qui n'a pas perdu son statut de réfugié au sens de la Convention en application du paragraphe (2).
Sont exclues de la présente définition les personnes soustraites à l'application de la Convention par les sections E ou F de l'article premier de celle-ci dont le texte est reproduit à l'annexe de la présente loi.
[10] Subsection 2(2) defined how cessation of refugee status occurred and was as follows:
(2) A person ceases to be a Convention refugee when
(a) the person voluntarily reavails himself of the protection of the country of the person's nationality;
(b) the person voluntarily reacquires his nationality;
(c) the person acquires a new nationality and enjoys the protection of the country of that new nationality;
(d) the person voluntarily re-establishes himself in the country that the person left, or outside of which the person remained, by reason of fear of persecution; or
(e) the reasons for the person's fear of persecution in the country that the person left, or outside of which the person remained, cease to exist.
(2) Une personne perd le statut de réfugié au sens de la Convention dans les cas où_:
a) elle se réclame de nouveau et volontairement de la protection du pays dont elle a la nationalité;
b) elle recouvre volontairement sa nationalité;
c) elle acquiert une nouvelle nationalité et jouit de la protection du pays de sa nouvelle nationalité;
d) elle retourne volontairement s'établir dans le pays qu'elle a quitté ou hors duquel elle est demeurée de crainte d'être persécutée;
e) les raisons qui lui faisaient craindre d'être persécutée dans le pays qu'elle a quitté ou hors duquel elle est demeurée ont cessé d'exister.
[11] There was an exception to the basis for cessation contained in paragraph 2(2)(e) of the Act, and that exception was found in subsection 2(3) of the Act which provided:
(3) A person does not cease to be a Convention refugee by virtue of paragraph (2)(e) if the person establishes that there are compelling reasons arising out of any previous persecution for refusing to avail himself of the protection of the country that the person left, or outside of which the person remained, by reason of fear of persecution.
(3) Une personne ne perd pas le statut de réfugié pour le motif visé à l'alinéa (2)e) si elle établit qu'il existe des raisons impérieuses tenant à des persécutions antérieures de refuser de se réclamer de la protection du pays qu'elle a quitté ou hors duquel elle est demeurée de crainte d'être persécutée.
[12] On the basis of this legislative scheme, once a decision-maker was satisfied that refugee status could not be claimed because of a change in country conditions within paragraph 2(2)(e) of the Act, the decision-maker was obliged to further consider the applicability of subsection 2(3) of the Act. (See: Yamba v. Canada (Minister of Citizenship and Immigration), (2000) 254 N.R. 388 (FCA)).
[13] In the present case, the applicants provided evidence of compelling reasons on which they relied in order to invoke subsection 2(3) of the Act. However, the visa officer admitted on cross-examination and that he was "not really" familiar with the exception to the cessation clause and did not really consider it.
[14] The Minister concedes that the visa officer erred by not considering the cessation clause and also by not further considering whether the compelling reasons exception applies. However, the Minister also says that the error is not material because the visa officer properly found that the applicants had the possibility of a "durable solution" so they did not fall within the definition of Convention refugee seeking resettlement.
[15] This leads to consideration of the next asserted ground of error.
(ii) Was the visa officer's finding of a "durable solution" in Vietnam perverse and capricious?
[16] In considering whether the applicants met the definition of Convention refugee seeking resettlement, the visa officer relied in large part upon the fact that the applicants could apply for citizenship in Vietnam. The officer therefore concluded that the applicants had the possibility of a "durable solution" available to them such that they were not within the definition of Convention refugee seeking resettlement.
[17] The term "Convention refugee seeking resettlement" was defined in subsection 2(1) of the Immigration Regulations, 1978, SOR/78-172 ("Regulations"). The definition was:
"Convention refugee seeking resettlement" means a person, other than a person whose case has been rejected in accordance with the Comprehensive Plan of Action adopted by the International Conference on Indo-Chinese Refugees on June 14, l989, who is a Convention refugee
(a) who is outside Canada,
(b) who is seeking admission to Canada for the purpose of resettling in Canada, and
(c) in respect of whom there is no possibility, within a reasonable period of time, of a durable solution.
« _réfugié au sens de la Convention cherchant à se réinstaller_ » Personne, autre qu'une personne dont le cas a fait l'objet d'un rejet conformément au plan d'action global adopté le 14 juin 1989 par la Conférence internationale sur les réfugiés indochinois, qui est un réfugié au sens de la Convention :
a) qui se trouve hors du Canada;
b) qui cherche à être admis au Canada pour s'y réinstaller;
c) à l'égard duquel aucune solution durable n'est réalisable dans un laps de temps raisonnable.
[18] The term "durable solution" contained in the definition was in turn defined in subsection 2(1) of the Regulations:
"durable solution", in respect of a Convention refugee seeking resettlement, means
(a) the voluntary repatriation of the Convention refugee to the Convention refugee's country of citizenship or of habitual residence,
(b) the resettlement of the Convention refugee in the Convention refugee's country of citizenship or of habitual residence, in a neighbouring country or in the country of asylum, or
(c) an offer of resettlement by a country other than Canada.
« _solution durable_ » À l'égard d'un réfugié au sens de la Convention cherchant à se réinstaller, s'entend :
a) soit de son rapatriement volontaire vers le pays de sa citoyenneté ou de sa résidence habituelle;
b) soit de sa réinstallation dans le pays de sa citoyenneté ou de sa résidence habituelle, dans un pays voisin ou dans le pays d'accueil;
c) soit d'une offre de réinstallation émanant d'un pays autre que le Canada.
[19] In order to interpret these provisions the applicants say regard should be made to Section E of Article 1 of the United Nations' Convention Relating to the Status of Refugees ("Convention"), referred to in the definition of Convention refuge. Section E of Article 1 provides:
This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.
Cette Convention ne sera pas applicable à une personne considérée par les autorités compétentes du pays dans lequel cette personne a établi sa résidence comme ayant les droits et les obligations attachés à la possession de la nationalité de ce pays.
[20] The applicants say that in order for the Regulations to be consistent with the Convention and with the Act, "resettlement" as used in the Regulations in the definition of Convention refugee seeking resettlement must mean that the resettled person is recognized by the competent authorities of the country in which he or she has taken residence as having the rights and obligations which are attached to the possession of nationality of that country. If a person does not have those rights and obligations then he or she cannot, it is submitted, be considered to be resettled. The applicants therefore submit that the possibility of applying for Vietnamese citizenship would be legally relevant to the visa officer's refusal only if an application to the authorities of Vietnam for citizenship would result in the confirmation of a pre-existing status.
[21] In the present case the applicants say that any application on their behalf for citizenship would not result in the confirmation of pre-existing status. In order to obtain Vietnamese citizenship more is required than simply filling out a form. The applicants say that five criteria must be fulfilled, three of which are discretionary in the eyes of the authorities. This is distinguishable from the situation considered by Mr. Justice Rothstein in Bouianova v. Canada (Minister of Employment and Immigration) (1993), 67 F.T.R. 74 (T.D.), where applying for Russian citizenship was a mere formality. In that case it therefore followed that the applicant could not deny having a country of nationality just because the applicant chose not to make an application for citizenship.
[22] The Minister argues in response to this submission that resettlement for the purpose of "durable solution" does not require possession of the same degree of rights and obligations that a person must possess in order to be excluded pursuant to Article 1E of the Convention. The Minister says that provided there is some level of integration into the country of first asylum, and the person is not at risk, that person should be considered resettled for the purpose of having a "durable solution".
[23] Neither counsel provided any case law in support of their respective submissions on this issue.
[24] In my view, the plain meaning of the words used in the definition of a Convention refugee seeking resettlement does not support the applicants' interpretation. I so conclude because the definition of Convention refugee seeking resettlement, read with the definition of "durable solution", speaks of a person in respect of whom there is no possibility, within a reasonable period of time, of resettlement in the person's country of origin, or in a neighbouring country, or in the country of asylum. The phrase no possibility of resettlement connotes a much lower standard than words found in Article 1E of the Convention which contemplate the same rights as are attached to the possession of nationality. In that circumstance, I conclude that the regulatory definition cannot be read as requiring the same level of connection with the country of residence as does Article 1E.
[25] While it is true that the "durable solution" exclusion in the Regulations does work to exclude refugee claimants from Canada on the basis that they have protection elsewhere, I accept the submission of the Minister that a crucial difference exists between the two exclusionary provisions.
[26] That difference flows from the fact that Article 1E of the Convention is applied to those who are in Canada. Canada, as a signatory to the Convention, has an obligation to provide the protection of the Convention to persons within its territory. The high standard for exclusion found in Article 1E of the Convention reflects the fact that where a person is excluded from the application of the Convention, the person becomes subject to deportation to the country in which he or she possesses the rights of nationality.
[27] In contrast, the definition of Convention refugee seeking resettlement applies to a person seeking admission from outside of Canada who is in a country of refuge. Canada has no obligation at law to resettle refugees from abroad. This is reflected in the Resettlement Handbook, published by the United Nations High Commissioner for Refugees where on page 3 of chapter 1 it is observed that:
No country is legally obliged to resettle refugees. Only a small number of States do so on a regular basis; allocating budgets, devising programmes and providing annual resettlement targets. Some countries regularly accept refugees for resettlement, sometimes in relatively large numbers, but do not set annual targets. Accepting refugees for resettlement is a mark of true generosity on the part of Governments and UNHCR welcomes the opportunities that continue to be offered by States for the resettlement of refugees.
[28] In this context, I conclude that resettlement for the purpose of a "durable solution" does not require the person seeking resettlement to possess the same level of rights and obligations that a person must possess in order to be excluded pursuant to Article 1E of the Convention.
[29] It follows from this conclusion that the visa officer did not err in law by considering the fact that the applicants are entitled to apply for citizenship in Vietnam. Nor, as a matter of law, is it necessary that the application for Vietnamese citizenship would result in the confirmation of a pre-existing status in order for an applicant to have a possibility, within a reasonable period of time, of a "durable solution".
[30] The applicants also argue that the decision that there was a "durable solution" was, on the evidence, perverse and capricious.
[31] In their application for permanent resident status, the applicants stated that they lived in a refugee camp which included only two families. The security was said to be poor so the applicants were afraid to live alone. The applicants stated:
Since 1994 we do not have any support from UNHCR (United Nations High Commission for Refugees). Our present living is very difficult. In Vietnam, we can't work or resident [sic] at any place of [sic] Vietnam except the Camp 979A Song Be, Vietnam. We only have casual work in the camp, which is not enough to support our living. Also, we don't have any right in this country such as: no right to vote, no right to travel anywhere and no right to open business as Vietnamese. If we want to travel anywhere in Vietnam, there will be a lot of complicated paper work to do to apply for it. The reason is we are just refugees in Vietnam.
[32] In rejecting their application, the visa officer concluded that the applicants were locally integrated and so had become permanently resettled in Vietnam. To so conclude the visa officer relied particularly upon the facts that the applicants were no longer living in a refugee camp, but had rented a house in Ho Chi Minh City where they worked as tailors. The officer therefore noted in the CAIPS notes that the applicants were free to live and work in Vietnam.
[33] With respect to the visa officer's conclusion that the applicants were free to live and work in Vietnam, on cross-examination the officer responded as follows:
48. Q Did you have any knowledge whether they were in Ho Chi Minh City legally or illegally?
A What you mean by "legally or illegally"?
49. Q Well, legally means in conformity with Vietnamese law.
A I did not raise that question, that issue. But what I know is that they rent an apartment in Ho Chi Minh.
50. Q Are you familiar with the system of residence control in Vietnam?
A Not very much.
51. Q Have you heard of it?
A Is it the household registry system? Yes.
[34] The visa officer also relied upon the fact that the applicants were eligible to apply for citizenship in Vietnam. With respect to that right, the visa officer stated in his affidavit in opposition to this application that during each interview he put the citizenship legislation to each applicant who, the officer concluded, did not raise any doubts as to their eligibility under the law. However, the CAIPS notes prepared by the officer record that Mai Ha told the officer that other people had tried but could not obtain citizenship in Vietnam. Thien Mai Ha also told the officer that other people had tried to obtain citizenship but that the "government does not allow".
[35] In order to assess the reasonableness of the visa officer's decision that the applicants were locally integrated it is relevant to consider the purpose of resettlement in the context of refugee protection.
[36] Chapter OP 4 of the Overseas Selection and Processing of Convention Refugees Seeking Resettlement and Members of the Humanitarian Designated Classes ("OP 4") in effect at the material time, outlined Canada's refugee policy and provided guidelines for processing applications from Convention refugees seeking resettlement. The chapter instructed that:
Resettlement is both an instrument of protection and one of the three durable solutions to refugee situations. The other durable solutions are repatriation and local integration in a country of first asylum.
[...]
Resettlement forms a durable solution for persons who may have extreme difficulty in integrating locally in the country of first asylum, and who cannot return to their country of citizenship or habitual residence.
[...]
To be eligible for resettlement in Canada a person who meets the Convention refugee definition:
· must be outside Canada,
· is not likely to repatriate voluntarily in the near future,
· is not locally integrated in the country of asylum, and
· does not have another offer of resettlement.
[37] In the present case, there was no suggestion of either voluntary repatriation or another offer of resettlement, so the issue was whether the applicants were locally integrated into the country of asylum.
[38] As to what constitutes local integration, OP 4 instructed visa officers that:
The factors to consider when deciding if an applicant is not locally integrated include whether:
· formal asylum has been granted;
· there is a risk of refoulement;
· the applicant can seek and accept employment;
· the applicant's children can attend school;
· the applicant can return to the country or territory of asylum; or
· the applicant can acquire permanent residence or citizenship in the future.
[39] Given the importance placed on compliance by Minister's delegates with ministerial guidelines, as explained by the Supreme Court of Canada in Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1 at paragraph 36, those are factors which were relevant for the visa officer to consider in the specific context of answering the question whether there was no possibility, within a reasonable period of time, that the applicants would become locally integrated.
[40] The evidence before the visa officer was as follows. The applicants had been in Vietnam since 1975. They had, at least, a right to apply for Vietnamese citizenship, but the visa officer had no idea what the outcome of what such application might be and the applicants expressed the view that any application would not be successful. They had not applied. The applicants had rented a house in Ho Chi Minh City, where they were living and they were working in Ho Chi Minh City as tailors. The officer was aware that there was a system of residence control in Vietnam, but made no inquiry as to whether the living arrangements were in accord with the system of residence control. There was no suggestion of a risk of refoulement.
[41] Reviewing the decision of the visa officer against the factors he was obliged to consider and the evidence before the officer, I am satisfied that the officer considered relevant criteria and did not consider irrelevant matters. On the unqualified statements made by the applicants to the officer that they were now living and working in Ho Chi Minh City, I am unable to conclude that the officer's decision that the applicants were locally integrated was either patently unreasonable or clearly wrong. Because the decision, in my view, withstands scrutiny against both the standard of patent unreasonableness and reasonableness simpliciter, it is not necessary for me to determine with more precision which standard of review is applicable.
[42] On the applicants' behalf it is argued that in considering whether there is "no possibility, within a reasonable period of time, of a durable solution" one must consider the length of time the applicants had been in Vietnam. In the present case, it is said that even if the applicants were resettled tomorrow it would not be within a reasonable period of time.
[43] In response, the Minister argues that a visa officer is to apply an applicant's situation to the legislation at the time the decision is made. In the present case, at the time the decision was made the officer found the applicants to be locally integrated and this was sufficient. I agree.
[44] The definition of Convention refugee seeking resettlement speaks to a case where there is "no possibility" of resettlement within a reasonable period of time. This, in my view, indicates the forward-looking nature of the test. If one is resettled, no matter how long one took to achieve that status, it cannot be said that there is no possibility of resettlement.
[45] It is also argued on the applicants' behalf that it is perverse and capricious to conclude that the applicants could move and work within Vietnam when the visa officer knew that there were relevant laws, but made no inquiries about the application of those laws to the applicants.
[46] However, again I accept the submission of the Minister that the onus was on the applicants to present all of the relevant facts to the visa officer. Given that the applicants were no longer living in a refugee camp, it is reasonable that they bore the onus of explaining to the officer anything which rendered precarious their then current status of living and working in Ho Chi Minh City.
(iii) Did the visa officer breach the duty of fairness by improperly delegating the H & C decision to his program manager?
[47] The nub of the applicants' argument is that it is the visa officer who should have considered their application on H & C grounds, and that as the Minister's delegate the visa officer could not sub-delegate that power to the Program Manager. This argument is based upon the following analysis of the Act.
[48] Subsection 114(2) of the Act was as follows:
114(2) The Governor in Council may, by regulation, authorize the Minister to exempt any person from any regulation made under subsection (1) or otherwise facilitate the admission of any person where the Minister is satisfied that the person should be exempted from that regulation or that the person's admission should be facilitated owing to the existence of compassionate or humanitarian considerations.
114(2) Le gouverneur en conseil peut, par règlement, autoriser le ministre à accorder, pour des raisons d'ordre humanitaire, une dispense d'application d'un règlement pris aux termes du paragraphe (1) ou à faciliter l'admission de toute autre manière.
[49] Section 37 of the Act provided:
37. (1) The Minister may issue a written permit authorizing any person to come into or remain in Canada if that person is
(a) in the case of a person seeking to come into Canada, a member of an inadmissible class; or
(b) in the case of a person in Canada, a person with respect to whom a report has been or may be made under subsection 27(2).
37. (1) Le ministre peut délivrer un permis autorisant_:
a) à entrer au Canada, les personnes faisant partie d'une catégorie non admissible;
b) à y demeurer, les personnes se trouvant au Canada qui font l'objet ou sont susceptibles de faire l'objet du rapport prévu au paragraphe 27(2).
[50] Consolidated Instrument of Delegation One, Immigration Manual IL3 delegated to the officer level in Canada and the managerial level abroad the authority vested in the Minister pursuant to section 2.1 of the Regulations.
[51] It is argued that both paragraph 37(1)(a) and subsection 114(2) of the Act were part of the Act when the original legislation came into force in 1978. Section 2.1 of the Regulations was then enacted in 1993 and it is said to have blurred the distinction between subsection 114(2) and section 37 of the Act. Section 2.1 of the Regulations expanded the powers of the Minister, allowing him or her to decide to admit an inadmissible person into Canada on a temporary (subsection 37(1)) or permanent (subsection 114(2)) basis.
[52] The relevance of this is said to be that a person who applied at a visa post abroad, but who was inadmissible due to a failure to meet the requirements of the Act or Regulations required of all immigrants, might have been allowed into the country under subsection 37(1) or subsection 114(2) of the Act by a senior immigration officer. A visa officer did not have power to admit such an immigrant. However, if an immigrant met all of the general requirements of the Act, but fitted within none of the programs which allowed for admission into Canada, the visa officer was said to retain a residual discretion to admit the immigrant on H & C grounds. There must, it is argued, have been a failure to meet a general requirement of the Act before a senior immigration officer had jurisdiction to make a decision on H & C grounds.
[53] Therefore, on the applicants' behalf it is said that it is the visa officer who had the residual discretion to admit persons, including the applicants, on humanitarian grounds, not the Minister or his delegate.
[54] In order to argue that the applicants did not fail to meet a general requirement of the Act and Regulations, they say that the requirements of programs in the Regulations were not requirements imposed on every immigrant. Thus, while section 14 of the Regulations imposed a requirement on every immigrant in respect of passports and travel documents, section 7 of the Regulations relating to Convention refugees seeking resettlement did not apply to every immigrant.
[55] The residual nature of the visa officer's discretion is said to have been reflected in subsection 9(4) of the Act which contained the only authority in the Act for the issuance of a visa. Subsection 9(4) stated:
9(4) Subject to subsection (5), where a visa officer is satisfied that it would not be contrary to this Act or the regulations to grant landing or entry, as the case may be, to a person who has made an application pursuant to subsection (1) and to the person's dependants, the visa officer may issue a visa to that person and to each of that person's accompanying dependants for the purpose of identifying the holder thereof as an immigrant or a visitor, as the case may be, who, in the opinion of the visa officer, meets the requirements of this Act and the regulations. [underlining added]
9(4) Sous réserve du paragraphe (5), l'agent des visas qui est convaincu que l'établissement ou le séjour au Canada du demandeur et des personnes à sa charge ne contreviendrait pas à la présente loi ni à ses règlements peut délivrer à ce dernier et aux personnes à charge qui l'accompagnent un visa précisant leur qualité d'immigrant ou de visiteur et attestant qu'à son avis, ils satisfont aux exigences de la présente loi et de ses règlements. [Le souligné est de moi.]
[56] Thus, it is argued that a visa officer had two decisions to make when considering an application. The first was whether the applicant met the requirements under the Act and the Regulations. The second was whether the visa officer would exercise his or her discretion to issue a visa. Meeting the requirements of the Act and Regulations is said not to have entitled a person to entry. Rather, meeting those requirements met a threshold, making the person eligible to enter. Whether or not an immigrant was allowed entry depended on how the discretion of the visa officer was exercised.
[57] While the discretion of the visa officer was guided by the Regulations, the criteria in the Regulations are said not to have exhausted the discretion of a visa officer. Otherwise, the applicants argue, if the discretion of the visa officer was limited to granting visas to those persons who fit within the regulatory programs, then the officer's discretion would be improperly fettered. Therefore, even if a person fit within none of the programs set out in the Regulations, an applicant might still have been admitted to Canada depending upon the discretion of a visa officer. One basis for the exercise of this residual discretion, in line with the purposes and principles of the Act, is said to have been entry on H & C grounds.
[58] In order to consider the applicants' argument it is necessary to consider the whole of the relevant legislative scheme contained in the Act and Regulations. Subsections 9(1), 9(2) and 9(4) of the Act together provided:
9. (1) Except in such cases as are prescribed, and subject to subsection (1.1), every immigrant and visitor shall make an application for and obtain a visa before that person appears at a port of entry.
[...](2) An application for an immigrant's visa shall be assessed by a visa officer for the purpose of determining whether the person making the application and every dependant of that person appear to be persons who may be granted landing.
[...]
(4) Subject to subsection (5), where a visa officer is satisfied that it would not be contrary to this Act or the regulations to grant landing or entry, as the case may be, to a person who has made an application pursuant to subsection (1) and to the person's dependants, the visa officer may issue a visa to that person and to each of that person's accompanying dependants for the purpose of identifying the holder thereof as an immigrant or a visitor, as the case may be, who, in the opinion of the visa officer, meets the requirements of this Act and the regulations.
9. (1) Sous réserve du paragraphe (1.1), sauf cas prévus par règlement, les immigrants et visiteurs doivent demander et obtenir un visa avant de se présenter à un point d'entrée.
[...]
(2) Le cas du demandeur de visa d'immigrant est apprécié par l'agent des visas qui détermine si le demandeur et chacune des personnes à sa charge semblent répondre aux critères de l'établissement.
[...]
(4) Sous réserve du paragraphe (5), l'agent des visas qui est convaincu que l'établissement ou le séjour au Canada du demandeur et des personnes à sa charge ne contreviendrait pas à la présente loi ni à ses règlements peut délivrer à ce dernier et aux personnes à charge qui l'accompagnent un visa précisant leur qualité d'immigrant ou de visiteur et attestant qu'à son avis, ils satisfont aux exigences de la présente loi et de ses règlements.
[59] The effect of those provisions was that a person outside Canada who wished to become a permanent resident of Canada must have applied for an immigrant visa before arriving at port of entry. Each application was then reviewed by a visa officer for the purpose of determining if the person was entitled to an immigrant visa. Where a visa officer was satisfied that it would not be contrary to the Act or Regulations to grant landing, the visa officer might issue a visa to identify the holder of the visa as a person who appeared to meet the requirements of the Act and the Regulations.
[60] Turning to the exercise of the discretion conferred by subsection 9(4) of the Act, the nature of that exercise was considered by the Federal Court of Appeal in Rajadurai v. Canada (Minister of Citizenship and Immigration) (2000), 266 N.R. 119 (F.C.A.). Madam Justice Sharlow wrote as follows at paragraphs 18 to 25:
18 A visa officer performing the task required by subsection 9(4) must first assess the applicant's qualifications. In most instances, the applicant must meet the selection criteria for immigrants as set out in the Immigration Regulations, 1978. The selection criteria are intended to determine whether or not and the degree to which the immigrant will be able to become successfully established in Canada. Selection is made by awarding points for a number of factors. A person who meets the definition of "assisted relative", as these two appellants did, would meet the selection criteria if they achieved 65 points. That is 5 points less than the number of points required by a person who is not an assisted relative.
19 In a separate but related enquiry, the visa officer must determine whether the applicant falls into one of the classes of persons who must be denied admission. There are two categories of inadmissible persons, those listed in subsection 19(1) of the Immigration Act, who are simply inadmissible to Canada, and those listed in subsection 19(2) who are generally inadmissible but may in certain circumstances be permitted to come to Canada for a period not exceeding 30 days.
20 The list of inadmissible classes in subsection 19(1) includes persons who suffer from certain impairments to their physical or mental health, who are unable or unwilling to support themselves, who have committed certain kinds of criminal offences, who are members of certain criminal organizations, or who pose certain security risks. There is no suggestion that either appellant is inadmissible under subsection 19(1).
21 The list of inadmissible classes in subsection 19(2) includes persons with less serious criminal records. It also includes a catch-all category in paragraph 19(2)(d):
(2) No immigrant and, except as provided in subsection (3), no visitor shall be granted admission if the immigrant or visitor is a member of any of the following classes:
...
(d) persons who cannot or do not fulfil or comply with any of the conditions or requirements of this Act or the regulations or any orders or directions lawfully made or given under this Act or the regulations.
* * *
(2) Appartiennent à une catégorie non admissible les immigrants et, sous réserve du paragraphe (3), les visiteurs qui :
...
(d) soit ne se conforment pas aux conditions prévues à la présente loi et à ses règlements ou aux mesures ou instructions qui en procèdent, soit ne peuvent le faire.
22 Thus, for example, a person who fails to meet the selection criteria could, for that reason, be a member of an inadmissible class pursuant to paragraph 19(2)(d). However, that is not an inevitable conclusion. A person who does not meet the selection criteria may request relief under subsection 114(2), which reads as follows:
114(2) The Governor in Council may, by regulation, authorize the Minister to exempt any person from any regulation made under subsection (1) or otherwise facilitate the admission of any person where the Minister is satisfied that the pe