Judgments

[1994] 2 F.C. 612

92-T-1825

Tai Sun Chan (Applicant)

v.

The Minister of Employment and Immigration (Respondent)

Indexed as: Chan v. Canada (Minister of Employment and Immigration) (T.D.)

Trial Division, Rothstein J.—Québec, January 6; Ottawa, January 19, 1994.

Citizenship and Immigration — Judicial review — Federal Court jurisdiction — Applicant landed as “entrepreneur” — Application to review immigration officer’s decision applicant not having satisfied conditions imposed upon landing — Application properly brought as application for judicial review — Tétreault-Gadoury not applicable — Immigration Act not distinguishing between jurisdiction conferred on immigration officer and another immigration tribunal to which immigration officer’s decision may be appealed — Immigration officers having jurisdiction to decide questions of law, including validity of regulations pursuant to which such decisions made — Under Federal Court Act, appropriate procedure application for judicial review, except in certain situations such as where viva voce evidence required — S. 18.1(3) giving Court authority to make declaration of invalidity of immigration officer’s decision based on invalidity of regulation pursuant to which decision made — Multiplicity of procedures if different procedures for errors of fact, law resulting in additional cost, confusion.

The applicant was landed in 1989 as an “entrepreneur” subject to certain conditions, pursuant to former subparagraph 23(1)(d)(iv) of the Immigration Regulations, 1978, which required an immigrant to establish a business or commercial venture in Canada that would make a significant contribution to the economy, and whereby employment opportunities in Canada would be created within two years after the date of landing. In 1992 an immigration officer wrote to the applicant advising that he had not satisfied the conditions attached to his landing. The applicant filed an application for judicial review of that decision, seeking inter alia a declaration that former subparagraph 23(1)(d)(iv) was ultra vires the Immigration Act. The respondent acknowledged that the immigration officer had made certain errors, but submitted that the applicant should proceed by way of action, not by way of application for judicial review because immigration officers do not have the jurisdiction to decide questions of law. The respondent relied on Tétreault-Gadoury v. Canada (Employment and Immigration Commission) wherein La Forest J. found, based on the scheme of the Unemployment Insurance Act, 1971, that the board of referees had no jurisdiction to decide the constitutional question. His Lordship noted that, although the Act did not specifically address the question of the jurisdiction of the board of referees, the Act did expressly confer jurisdiction to consider questions of law, including constitutional questions, on the umpire to whom there was an appeal from the board of referees. Referring to the maxim expressio unius est exclusio alterius, he concluded that the board of referees had no jurisdiction to consider constitutional issues. The respondent pointed out that under the Immigration Act other tribunals have been expressly vested with the jurisdiction to decide questions of law and fact. By contrast, immigration officers are not expressly vested with such power. The issues were (1) whether immigration officers have jurisdiction to decide questions of law, in particular, questions as to the validity of the regulations applied by them (in which case, Tétreault-Gadoury would not apply); (2) if not, whether Tétreault-Gadoury applied so that this Court, upon an application for judicial review, would not have jurisdiction to decide the validity of regulations applied by immigration officers.

Held, the matter should be proceeded with as an application for judicial review.

Tétreault-Gadoury did not apply. Under the Immigration Act, there is no administrative or quasi-judicial appeal from a decision of this type by an immigration officer. There is no distinction, as in the Unemployment Insurance Act, 1971, between the jurisdiction conferred on an immigration officer and another immigration tribunal to which a decision of an immigration officer may be appealed. Although other immigration tribunals are expressly given jurisdiction to decide questions of law, they are not tribunals that consider appeals of this type from immigration officers. Any decision made by an immigration officer must be based on findings of fact and interpretations of law. In imposing conditions upon the landing and then deciding whether those conditions have been complied with, the immigration officer would most often be dealing with factual questions, but occasionally some question as to what the condition requires or whether the condition is consistent with the regulation under which it is imposed may be raised. These are questions of law as is the question as to the validity of a regulation itself. If immigration officers have jurisdiction to interpret regulations that they apply they have jurisdiction to decide the validity of such regulations. If the dicta in Tétreault-Gadoury applied, there would be no possibility of seeking judicial review of decisions of immigration officers on the basis of errors of law. Parliament did not intend such an unreasonable result.

The current Federal Court Act makes it clear that the appropriate procedure to follow when challenging a decision of a federal board, commission or other tribunal, is by way of an application for judicial review and not by way of an action. In an appropriate case (i.e. where viva voce evidence is required), an application for judicial review may be proceeded with as an action as if it had been commenced by statement of claim, but that does not change the originating procedure. Subsection 18.1(3) gives the Court full authority to make a declaration of invalidity of a decision of an immigration officer based on the invalidity of the regulation pursuant to which the immigration officer made his decision. If an error of law could only be brought before the Court by way of action, applicants seeking relief from decisions of immigration officers would be required to choose between different processes depending upon the grounds to be advanced. This could lead to the institution of two processes in a case such as this. Such a multiplicity of procedures would serve no useful purpose and the confusion and additional cost would be clear disadvantages. It had not been demonstrated that the Court would be impeded in the performance of its functions or that any party would be prejudiced by there being only one process, i.e. judicial review, for seeking relief in this Court from decisions of immigration officers.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44].

Federal Court Act, R.S.C., 1985, c. F-7, ss. 18 (as am. by S.C. 1990, c. 8, s. 4), 18.1 (as enacted idem, s. 5), 18.4 (as enacted idem).

Federal Court Rules, C.R.C., c. 663, R. 1618 (as enacted by SOR/92-43, s. 19).

Immigration Act, R.S.C., 1985, c. I-2, s. 69.4(2) (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 18).

Immigration Regulations, 1978, SOR/78-172, s. 23(1) (as am. by SOR/83-837, s. 3; 85-1038, s. 7; 90-750, s. 3).

Immigration Regulations, 1978, amendment, SOR/93-44, s. 17.

Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48.

CASES JUDICIALLY CONSIDERED

DISTINGUISHED:

Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22; (1991), 81 D.L.R. (4th) 358; 50 Admin. L.R. 1; 36 C.C.E.L. 117; 91 CLLC 14,023; 4 C.R.R. (2d) 12; 126 N.R. 1; revg Tétreault-Gadoury v. Canada (Canada Employment and Immigration Commission), [1989] 2 F.C. 245; (1988), 53 D.L.R. (4th) 384; 33 Admin. L.R. 244; 23 C.C.E.L. 103; 88 CLLC 14,050; 88 N.R. 6 (C.A.); Estrada v. Canada (Minister of Employment and Immigration) (1987), 8 F.T.R. 317; 1 Imm. L.R. (2d) 24 (F.C.T.D.); Southam Inc. v. Canada (Minister of Employment and Immigration), [1987] 3 F.C. 329; (1987), 13 F.T.R. 138; 3 Imm. L.R. (2d) 226 (T.D.).

APPLICATION for leave to bring an application for judicial review. Application granted.

COUNSEL:

T. Constance Nakatsu for applicant.

I. John Loncar for respondent.

SOLICITORS:

Cecil L. Rotenberg, Don Mills, Ontario, for applicant.

Deputy Attorney General of Canada for respondent.

The following are the reasons for order rendered in English by

Rothstein J.: The procedural issue giving rise to this order is whether the question of the validity of regulations, pursuant to which an immigration officer decided that an immigrant had not satisfied the conditions attached to his landing, is subject to judicial review by this Court.

The applicant is a citizen of Hong Kong. On August 16, 1989, he was landed as an “entrepreneur” and conditions were attached to his landing.

The nature of the terms and conditions for landing for entrepreneurs, at the time the applicant landed, was set out in former subparagraph 23(1)(d)(iv) of the Immigration Regulations, 1978,[1] SOR/78-172, as amended [by SOR/83-837, s. 3; 85-1038, s. 7; 90-750, s. 3]:

23. (1) Where terms or conditions may be imposed

…

only terms or conditions of the following nature may be imposed, namely,

(d) in the case of an immigrant,

…

(iv) where he was assessed under section 8 as an entrepreneur, the condition that, within a period of not more than two years after the date of his landing,

(A) he establish, purchase or make a substantial investment in a business or commercial venture in Canada that will make a significant contribution to the economy and whereby employment opportunities in Canada are created or continued for one or more Canadian citizens or permanent residents, other than the entrepreneur and his dependants, and

(B) he participate actively and on an on-going basis in the management of that business or commercial venture,

On October 16, 1992, A. Collerman, an immigration officer, wrote to the applicant advising that he had not satisfied the terms and conditions related to his landing. The letter stated, inter alia:

In my opinion, you have not satisfied the terms and conditions imposed on your visa upon your landing in Canada. You are the subject of a report under Section 27 of the Immigration Act since August 1991. Our report will recommend that you be directed to an Immigration Inquiry, where the issuance of a removal order may be made against you and your dependents [sic].

The applicant filed an application for judicial review of the decision of Immigration Officer Collerman. In his application, the applicant sought, inter alia, a declaration that former subparagraph 23(1)(d)(iv) of the Immigration Regulations, 1978 is ultra vires the Immigration Act, R.S.C., 1985, c. I-2, as amended. The terms and conditions, which the immigration officer found had not been satisfied, had been imposed pursuant to this subparagraph.

The applicant’s leave application was granted. After leave was granted, counsel for the respondent, acknowledging difficulties with the Immigration Officer’s decision, brought a motion requesting, inter alia:

(1) an order that the decision of Immigration Officer Collerman be set aside; and

(2) an order that the applicant’s effort to fulfil his terms and conditions of landing be reassessed by a different immigration officer.

In support of the respondent’s motion, counsel for the respondent filed the affidavit of Harley Nott, a barrister and solicitor employed by the respondent. In his affidavit, Mr. Nott acknowledged that Immigration Officer Collerman made certain errors which justified the matter being referred back for redetermination.

Applicant’s counsel was not willing to agree that the Court should summarily refer the matter back to a different immigration officer for redetermination as requested by respondent’s counsel. He submitted that in the event the applicant was not successful on the reassessment, the applicant would find himself back in this Court presenting the same arguments that are presently before the Court (i.e. that former subparagraph 23(1)(d)(iv) of the Immigration Regulations, 1978 is ultra vires the Immigration Act). As applicant’s counsel was not consenting to the motion, counsel for the respondent withdrew the motion.

Counsel for the respondent now submits that the applicant’s submission, that former subparagraph 23(1)(d)(iv) of the Immigration Regulations, 1978 is ultra vires the Immigration Act, is not properly before the Court. He submits that the applicant is seeking declaratory relief as to the validity of regulations pursuant to which immigration officers make decisions. He says that as immigration officers do not have the jurisdiction to decide questions of law, it is not proper for the applicant to proceed by way of application for judicial review.

For this proposition, respondent’s counsel relies on Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22. In that case, a constitutional question was brought before the Federal Court of Appeal [[1989] 2 F.C. 245] directly from a decision of a board of referees under the Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48. La Forest J. found, based on the scheme of the Unemployment Insurance Act, 1971, that the board of referees had no jurisdiction to decide the constitutional question. Because the jurisdiction of the Federal Court of Appeal was limited to overseeing and controlling the legality of decisions of administrative bodies and to referring matters back for redetermination, the Court did not have the jurisdiction to make a declaration on the constitutional question when the board of referees itself did not have such jurisdiction.

In the case at bar, two issues must be addressed.

(1) Do immigration officers have jurisdiction to decide questions of law and, in particular, questions as to the validity of the regulations applied by them? If the answer is yes then Tétreault-Gadoury (supra) is of no application.

(2) If immigration officers do not have jurisdiction to decide questions of law, is Tétreault-Gadoury (supra) to be interpreted and applied so that this Court, upon an application for judicial review, would not have jurisdiction to decide the validity of regulations applied by immigration officers?

As to the first issue, in arguing that immigration officers do not have the power to decide questions of law, counsel for the respondent pointed out that under the Immigration Act, other tribunals have been expressly vested with the jurisdiction to decide questions of law and fact. For example, the Immigration Appeal Division under subsection 69.4(2) [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 18] is expressly authorized to hear and determine all questions of law and fact that may arise in relation to the making of a removal order or the refusal to approve an application for landing made by a member of the family class. By contrast, immigration officers are not expressly vested with such power. He analogized the limitation on the powers of immigration officers to the limitation on boards of referees under the Unemployment Insurance Act, 1971, as determined in Tétreault-Gadoury (supra).

In Tétreault-Gadoury (supra), La Forest J. noted that although the Unemployment Insurance Act, 1971 did not specifically address the question of the jurisdiction of the board of referees, that Act did expressly confer jurisdiction to consider questions of law, including constitutional questions, on the umpire to whom there was an appeal from the board of referees. Referring to the maxim expressio unius est exclusio alterius, he concluded that the board of referees had no jurisdiction to consider constitutional questions.

However, in the case of the Immigration Act, there is no administrative or quasi-judicial appeal from a decision (of this type) of an immigration officer. There is no distinction, as in the Unemployment Insurance Act, 1971, between the jurisdiction conferred on an immigration officer and another immigration tribunal to which a decision of an immigration officer may be appealed. Although respondent’s counsel points to other immigration tribunals expressly given jurisdiction to decide questions of law, they are not tribunals that consider appeals of this type from immigration officers. I am therefore of the view that the decision of the Supreme Court in Tétreault-Gadoury (supra), based on the statutory scheme of the Unemployment Insurance Act, 1971, does not apply to the determination of the question of whether immigration officers, under the Immigration Act, have jurisdiction to decide questions of law.

It seems to me that any decision made by an immigration officer must be based on findings of fact and interpretations of law. The function of immigration officers in cases such as the one at bar is to impose conditions upon the landing of certain immigrants and then decide whether the immigrant has complied with such conditions. I would expect that in most cases the immigration officer would be dealing with factual questions, e.g. what has the applicant done in relation to the condition imposed? But occasionally, at least some question as to precisely what the condition requires or whether or not the condition is consistent with the regulation under which it is imposed may be raised. These are questions of law as is the question as to the validity of a regulation itself.

Indeed, in this judicial review application, the respondent moved to have the immigration officer’s decision set aside because, according to the affidavit of Harley Nott,

3. Officer Collerman, in assessing the Applicant’s efforts to fulfil his terms and conditions of landing, pursuant to Immigration Regulation s. 23(1)(d)(iv), made the following errors:

(a) he incorrectly concluded that an educational facility did not qualify as a business or commercial venture that would make a significant contribution to the Canadian economy when it, in fact, did; and

The determination that an educational facility does or does not qualify as a business or commercial venture that would make a significant contribution to the Canadian economy is itself a determination of law. Mr. Nott himself seems to be saying that the immigration officer erred based upon a misinterpretation of whether former subparagraph 23(1)(d)(iv) included educational facilities. Whether or not the immigration officer erred in his interpretation, the process of interpreting the regulation is itself a determination of law. I see no reason why, if immigration officers have jurisdiction to interpret the regulations that they apply (which the respondent appears to be acknowledging), they do not have jurisdiction to decide the validity of such regulations when a challenge to them is raised.

I am of the view that in making decisions, immigration officers must have jurisdiction to decide relevant questions of law and that such jurisdiction includes deciding questions as to the validity of regulations pursuant to which such decisions are made.

Even if I am wrong, and immigration officers do not have jurisdiction to decide questions of law, or at least questions as to the validity of regulations that they apply, I do not think that the limitation placed on the Federal Court by the Supreme Court of Canada in Tétreault-Gadoury (supra), applies to the circumstances of the case at bar. The way in which La Forest J. characterized the issue in Tétreault-Gadoury (supra), was whether a tribunal, not expressly provided with the power to consider all relevant law may, nonetheless, apply the Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K) [R.S.C., 1985, Appendix II, No. 44]. The issue in the case at bar does not involve the Charter.[2] Moreover, as I have earlier indicated, there is no analogy in the Immigration Act to the distinction under the Unemployment Insurance Act, 1971, between boards of referees and umpires. There is no tribunal other than the Federal Court that may consider errors of law in decisions of immigration officers.

If the dicta of La Forest J. in Tétreault-Gadoury (supra), were applicable, there would be no possibility for persons to seek judicial review of decisions of immigration officers on the basis of errors of law. This is an unreasonable conclusion and cannot have been intended by Parliament.

In answer to the unreasonableness of such a conclusion, counsel for the respondent submits that the way in which an error of law (or at least the question of the validity of regulations inherent in decisions of immigration officers) may be brought before the Federal Court, is by way of an action and not by way of judicial review.

In support of this position, respondent’s counsel relied upon some decisions of the Federal Court such as Estrada v. Canada (Minister of Employment and Immigration) (1987), 8 F.T.R. 317 (F.C.T.D.) and Southam Inc. v. Canada (Minister of Employment and Immigration), [1987] 3 F.C. 329 (T.D.). These authorities all interpret the jurisdiction and processes of the Federal Court under the Federal Court Act, R.S.C., 1985, c. F-7, as amended, prior to its amendment in 1990. The 1990 amendments significantly changed and simplified these processes.

In my view, the provisions of the current Federal Court Act make it clear that the appropriate procedure to follow when challenging a decision of a federal board, commission or other tribunal, is by way of an application for judicial review and not by way of an action. Section 18 [as am. by S.C. 1990, c. 8, s. 4] of the Federal Court Act states:

18. (1) Subject to section 28, the Trial Division has exclusive original jurisdiction

(a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and

(b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal.

…

(3) The remedies provided for in subsections (1) and (2) may be obtained only on an application for judicial review made under section 18.1.

This version of section 18 of the Federal Court Act first appeared by virtue of S.C. 1990, c. 8, s. 4. With the enactment of this section, any doubt as to how challenges against federal boards, commissions or other tribunals should be brought to this Court was clarified. This includes claims for declaratory relief. The proper procedure is an application for judicial review.

This is not to say that in an appropriate case, an application for judicial review may not be proceeded with as an action as if it had been started by way of statement of claim. Subsection 18.4(2) [as enacted idem, s. 5] provides:

18.4 …

(2) The Trial Division may, if it considers it appropriate, direct that an application for judicial review be treated and proceeded with as an action.

Thus, where viva voce evidence is required, or any other relevant consideration dictates that an application for judicial review should be proceeded with as an action, that option is available. But that does not change the originating procedure, which is an application for judicial review.

The jurisdiction of the Federal Court in an application for judicial review is set forth in subsection 18.1(3) [as enacted idem]:

18.1 …

(3) On an application for judicial review, the Trial Division may

(a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or

(b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.

Under subsection 18.1(3), the Court may declare invalid or unlawful a decision or order of a federal board, commission or other tribunal including an immigration officer. I do not see why a decision of an immigration officer, that implicitly accepts that a provision of a regulation of the Governor in Council is valid, which is a step in the decision-making process of the immigration officer, cannot be dealt with under subsection 18.1(3). In my view, subsection 18.1(3) gives the Court full authority to make a declaration of invalidity or unlawfulness of a decision of an immigration officer based on the invalidity of the regulation pursuant to which the immigration officer made his or her decision.

If respondent’s counsel’s position is correct, applicants seeking relief from decisions of immigration officers would be required to choose between different processes depending upon the grounds to be advanced by them. This could lead to two processes having to be instituted in a case such as the one at bar; an application for judicial review for some grounds and an action for a declaration for others. This multiplicity of procedures would apply only in certain circumstances, i.e. when the tribunal whose decision is being challenged did not have jurisdiction to decide a question of law. I see no useful purpose to such a multiplicity of procedures. On the contrary, the confusion and additional cost inherent in them are clear disadvantages. I do not think Parliament intended to complicate access to the Federal Court by creating an obscure requirement for the commencement of proceedings by way of action in cases such as the one at bar. It has not been demonstrated that the Court would be impeded from performing its functions or that any party would be prejudiced by there being only one process, that is judicial review, for seeking relief in this Court from decisions of immigration officers.

For these reasons, this matter should be proceeded with as an application for judicial review. The Court, pursuant to this application for judicial review, will hear and decide the issue as to whether or not certain portions of regulations of the Governor in Council, upon which the immigration officer relied in making his decision in this case, are or are not ultra vires the Immigration Act.

Respondent’s counsel requested that necessary extensions of time be granted for the filing of documents and pre-hearing processes. The necessary extensions of time are granted and a timetable satisfactory to both counsel is contained in the order accompanying these reasons.

Counsel for the applicant requested costs. The matter of costs may be spoken to at the conclusion of argument on the merits. Counsel are to have regard to Rule 1618 of the Federal Court Rules [C.R.C., c. 663 (as enacted by SOR/92-43, s. 19)].

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