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;
(c) the applicant admitted that he was neither a
Canadian citizen nor a permanent resident 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.
See also Regulation 32(1):
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.
was, sufficient to entitle the Adjudicator to reach
the conclusion which he did in fact reach. The
difficulty with this submission, in my view, is that
the evidence tendered in phase 2 was not before
the Adjudicator when he made the decision at the
conclusion of phase 1 that the applicant had
breached paragraphs 27(2)(b), (2)(e) and (2)(g).
When he reached that decision based on evidence
which had not been subjected to the credibility
tests contemplated by the Regulations referred to
supra, he committed an error in law which, in my
view, renders nugatory everything transpiring
thereafter at the inquiry.
Accordingly, and for the foregoing reasons, I
agree with the disposition of this matter as pro
posed by the Chief Justice.
* * *
The following are the reasons for judgment
delivered orally in English by
URIE J.: I have had the advantage of reading
the reasons for judgment of both the Chief Justice
and Mr. Justice Heald, with both of which I agree.
I also agree with the disposition of this application
proposed by them. I merely wish to add one or two
observations of my own.
The reliance by the Adjudicator in this case on
statutory declarations for proof of the facts stated
therein is an indication of what I perceive to be a
growing tendency to do so in the conduct of immi
gration inquiries. The difficulty in proof encoun
tered in this case by the case presenting officer
arose as a result of the refusal by the person
concerned, on advice of counsel, to testify. In that
circumstance it was necessary for him to prove the
alleged breaches of the Immigration Act, 1976, by
evidence other than that elicited from the appli
cant. He chose to make proof by tendering statu
tory declarations sworn by an immigration officer.
The deponent did not therein even purport to give
the substance of what the person concerned said to
him, let alone his actual words, but rather he
summarized what he perceived to be the effect of
what was said to him namely, that several admis
sions were made by the person concerned. Those
admissions, untested by cross-examination, formed
the very basis for the deportation order made by
the Adjudicator. The danger in accepting such
evidence is manifest.
While it is true that the evidentiary rules appli
cable in trials in courts of law need not be followed
in inquiries with the rigidity that is required in
such courts and while an Adjudicator is, by the
Act, entitled to receive and base his decision on
evidence which he considers to be credible and
trustworthy, he ought to exercise great care in the
weight which he attaches to the kind of evidence
tendered in this inquiry. That is so because its
purpose is to prove the essential ingredients which
must be proved to determine whether or not the
person concerned has violated some of the provi
sions of the Act or of the Regulations. It is not
desirable, or perhaps possible, to formulate rules
applicable in every case. However, as a first princi
ple, it seems to me that it is incumbent upon the
Adjudicator to be sure that he bases his decision
on the best evidence that the nature of the case
will allow. That ordinarily would require viva voce
evidence in the proof of essential ingredients, if it
is at all possible. Only when it is not possible to
adduce that kind of primary evidence should
secondary evidence be relied upon. The circum
stances of each case will dictate what evidence the
Adjudicator will accept and the weight which he
will give to it.
As previously indicated, I would dispose of the
application in the manner proposed by the Chief
Justice.
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.