A-1136-88
Leming Wang (Appellant)
v.
Minister of Employment and Immigration and
Secretary of State for External Affairs (Respond-
ents)
INDEXED AS: WANG v. CANADA (MINISTER OF EMPLOYMENT
AND IMMIGRATION) (C.A.)
Court of Appeal, Mahoney, Stone and Desjardins
JJ.A.—Toronto, December 13, 1990; Ottawa,
January 8, 1991.
Immigration — Practice — Appeal from trial judgment
refusing to quash visa officer's denial of permanent residence
application — Trial Judge finding visa officer in New York
assessed appellant in respect of alternative occupation,
although refusal letter silent in that regard — Visa officer's
memorandum, prepared after interview with appellant, pro
duced as exhibit to affidavit of immigration officer in Canada,
struck — Appellant's affidavit only evidence of what trans
pired at interview — No justification for deviating from
evidentiary norms by accepting visa officers' memoranda as
proof of truth of contents without affidavit — Equally incon
venient for intended immigrants, also outside Canada, to
depose to their evidence — Unjust to allow one witness to
present evidence in manner precluding testing by cross-exami
nation — As visa officers normally located with other functio
naries before whom affidavits may be sworn, inconvenience no
excuse — Expenses deterrent to frivolous cross-examination
— Appeal allowed Presumption of fairness in proceedings
rebuttable by extraneous evidence, herein limited to appel
lant's deposition — As only evidence included occupation
considered by visa officer struck, no factual basis for Trial
Judge's conclusion.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Act, R.S.C., 1985, c. F-7, s. 52(b)(1).
Immigration Regulations, 1978, SOR/78-172, ss. 8,
11(3)(b) (as am. by SOR/79-167, s. 4; 81-461, s. 1).
CASES JUDICIALLY CONSIDERED
REVERSED:
Wang (L.) v. Canada (Minister of Employment and
Immigration) (1988), 23 F.T.R. 257; 7 Imm. L.R.
(2d) 30 (F.C.T.D.).
COUNSEL:
Cecil L. Rotenberg, Q.C. and Diane C. Smith
for appellant.
Marlene I. Thomas and P. Christopher Parke
for respondents.
SOLICITORS:
Rotenberg, Martinello, Don Mills, Ontario
for appellant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for judgment
rendered in English by
MAHONEY J.A.: This is an appeal from a
reported decision of the Trial Division' which
refused certiorari quashing the decision of a visa
officer in New York City rejecting the appellant's
independent application for permanent residence
in Canada, and of mandamus requiring the
respondents to consider and dispose of the applica
tion according to law. Subsection 11(1) and para
graph 11(3)(b) of the Immigration Regulations,
1978 [SOR/78-172 (as am. by SOR/79-167, s. 4;
81-461, s. 1] are particularly pertinent.
11. (1) Subject to subsections (3) and (4), a visa officer shall
not issue an immigrant visa pursuant to section 9 or 10 to an
immigrant who is assessed on the basis of factors listed in
column I of Schedule I and is not awarded any units of
assessment for the factor set out in item 3 thereof unless ...
(3) A visa officer may
(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 sub
mitted in writing to, and approved by, a senior immigration
officer.
' (1988), 23 F.T.R. 257.
The exceptions of subsection 11(1), arranged
employment or designated occupation, are not in
play.
The appellant had been an electrical engineer as
well as a university level instructor in China and
was, at the time of his application, pursuing a
Ph.D. level program of studies in electrical engi
neering in the United States. To be landed as an
electrical engineer, one must have Canadian
professional accreditation. In his application for
landing the appellant had indicated his intention of
pursuing the occupation of Tester, Systems in
Canada and, in the letter transmitting the applica
tion, added that he was also qualified to be a
Tester, Motors and Controls and was equally will
ing to pursue that occupation. The Canadian Clas
sification and Dictionary of Occupations (CCDO)
is used as a definitional guide by immigration
officers for purposes of assessment under section 8
of the Immigration Regulations, 1978. A Tester,
Systems works with electronic systems such as
computers and radio, television and telecommuni
cations systems while a Tester, Motors and Con
trols works with electrical equipment: motors, gen
erators, alternators etc.
The visa officer's refusal letter, dated November
16, 1987, stated, in part:
According to subsection 11(1) of Canada's Immigration
Regulations, 1978, a visa officer shall not issue an immigrant
visa to an immigrant who is assessed on the basis of factors
listed in column I of Schedule I and is not awarded any units of
assessment for the factor set out in item 3 thereof, i.e.
experience.
After a careful and thorough review of your application I
regret to inform you that your request for entry as an immi
grant to Canada has been refused since you have no experience
in the occupation you intend to follow in Canada. Although
your intended occupation is Systems Tester, you have been
educated as an Electrical Engineer and as a Professor/Instruc-
tor.
The refusal letter was silent as to the alternative
occupation: Tester, Motors and Controls. Notwith
standing that he had been awarded no units of
assessment for Experience, the appellant was
awarded a total of 69 units, including the max-
imum 10 units for Occupational Demand. Subject
to prescribed exceptions, including that of subsec
tion 11(1) of the Regulations, a visa may be issued
to an independent immigrant awarded 70 units.
The appellant described his interview with the
visa officer in his affidavit. He deposed, in part:
8. The officer then left the room and upon his return said to
me that he felt that I was too qualified to do the job that I
wanted to do in Canada and that although my lawyers filled in
the job of tester, since I had a master's degree in electrical
engineering, I am an electrical engineer. The officer indicated
to me that if it was him, he would not want to do the job of
tester. I indicated to the officer that a free life is more
important to me than what type of job I did and that I was
more than willing to be employed as a tester in Canada.
9. The officer then left the room again and upon his return
indicated that he felt I was too qualified for the job I wanted to
do in Canada, although I had plenty of experience. The officer
indicated to me that I had not been a full time tester in China,
although I explained to him that I had done testing all along in
China. The officer at the interview did not go through the
C.C.D.O. definitions with me, Exhibit "C" hereto. If the officer
had done so, I would have told him that I have done virtually
all of the functions in both of these definitions and I spent
eighty percent of my time in China performing these tester
functions.
That affidavit was not subject of cross-examina
tion.
On July 7, 1988, an immigration officer, not the
visa officer, made an affidavit exhibiting a memo
randum dated June 29, 1988, prepared by the visa
officer with respect to the refusal of the appellant's
application. By order of the learned Trial Judge,
that memorandum was struck from the record. 2
No appeal was taken from that order. Thus, the
only evidence as to what had transpired at the
interview was that deposed to by the appellant.
The learned Trial Judge concluded that the fact
that the appellant had put forward evidence that
he "was a tester and it wasn't accepted" put the
matter out of the reach of the Court. He
concluded:
2 It appears that this order was made at the hearing but not
recorded at that time. An order striking the memorandum from
the record was made on consent by the Trial Judge and filed
April 26, 1989.
This is not therefore a situation in which, by error of law, there
has been a refusal to carry out the assessment of this appli
cant's intended or included occupation. Quite clearly there has
been such an assessment and it has been with specific reference
to the occupation put forward by the applicant.
With respect, the only evidence upon which the
learned Trial Judge could possibly have concluded
that the "included occupation" had been con
sidered at all by the visa officer is contained in the
memorandum which he had struck from the
record.
The Trial Judge's conclusion that the visa offi
cer had assessed the appellant in respect of the
occupation Tester, Motors and Controls is, as the
appellant submits, devoid of factual foundation.
For that reason alone, this appeal must succeed.
There are two other matters which warrant com
ment in view of the arguments made on appeal.
The appellant argued that the refusal letter
itself ought not have been treated as evidence by
the learned Trial Judge who, after quoting the
following passage:
Although your intended occupation is Systems Tester, you have
been educated as an Electrical Engineer and your employment
experience has been as an Electrical Engineer and as a
Professor/Instructor.
said:
The only reasonable interpretation of that sentence is that the
visa officer carried out the required assessment in the intended
occupation put forward by the applicant and reached an
adverse conclusion on the issue of experience.
The refusal letter is, of course, the decision subject
of the application for prerogative relief and is
properly to be considered by the Court to which
the application is made. It is evidence of the
decision made by the visa officer and the reasons
he made it but it is not conclusive evidence of
whether he arrived at it in the manner required by
law: in this case, whether he really did consider the
evidence of the appellant's experience or whether
he dealt with the application as he did to avoid a
refusal under subsection 11(3), which would
require the concurrence of a senior immigration
officer. Any presumption that the proceedings
were conducted fairly and in accordance with the
law is rebuttable by extraneous evidence which, in
the present case, was limited to the appellant's
deposition. It might be thought that, in the cir-
cumstances and having particular regard to the
silence of the refusal letter as to the alternative
occupation, any presumption of regularity ought
readily to be rebutted by uncontradicted, sworn
testimony. However, it cannot be said that the
learned Trial Judge committed a palpable error by
sustaining it.
The second matter is fundamental. It is, in
substance, an appeal against the order excluding
the visa officer's memorandum from evidence. The
respondent argues that, because of the inconve
nience of arranging depositions by visa officers
who, by definition, are outside Canada, the Court
ought to accept their notes and memoranda as
proof of the truth of their contents even though no
affidavit averring to that truth is filed. In this, as
in some of the other appeals dealt with serially, the
visa officer concerned produced notes made during
the interview and/or a memorandum made consid
erably later setting forth his recollection. These
were produced as exhibits to the affidavit of an
immigration officer in Canada who had reviewed
the pertinent file and selected material considered
relevant to the proceeding in Court.
I see no justification for deviating from evidenti-
ary norms in these circumstances. No legal basis
for acceding to the respondent's argument has
been demonstrated and, in my opinion, it is devoid
of a practical basis. In the first place, unless the
error said to vitiate the decision appears on the
face of the record, the intended immigrant also, by
definition, outside Canada must depose to his or
her evidence and, unlike the visa officer, may not
be conveniently located to do so. There is no
justice in according one witness to the proceeding
an opportunity to present evidence in a manner
that precludes it being tested by cross-examina
tion. In the second place, the suggestion of
administrative inconvenience seems flimsily based.
Given that visa officers normally inhabit premises
in which may be found other functionaries before
whom affidavits acceptable in Canadian courts
may be sworn, there seems no practical reason why
his or her version of the truth cannot, with equal
convenience, be produced in affidavit as in memo
randum form. Finally, should a disappointed appli-
cant wish to inconvenience a visa officer by a
cross-examination there is the sanction that the
right will have to be exercised, at least initially, at
some considerable expense to the applicant.
As I indicated previously, in my opinion the
appeal must be allowed because the finding that
the visa officer assessed the appellant in respect of
the alternate occupation proposed is contrary to
the evidence. On balance, considering remedy, I
am of the view that the interests of justice will be
better served by a total reconsideration of the
application, rather than one limited to the alter
nate occupation.
I would allow the appeal with costs and, pursu
ant to subparagraph 52(b)(î) of the Federal Court
Act [R.S.C., 1985, c. F-7], would render the judg
ment that the Trial Division should have given by
quashing the decision of the visa officer, dated
November 16, 1987, refusing the appellant's
application for admission to Canada as an immi
grant and ordering that it be reconsidered de novo
by a different visa officer.
STONE J.A.: I agree.
DESJARDINS J.A.: I concur.
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.