A-851-90
Yee Chuen Choi (Appellant)
v .
The Minister of Employment and Immigration
and the Secretary of State for External Affairs
(Respondents)
INDEXED AS: CHO/ V. CANADA (MINISTER OF EMPLOYMENT
AND IMMIGRATION) (CA.)
Court of Appeal, Mahoney, MacGuigan and Linden
JJ.A.—Toronto, December 9; Ottawa, December 13,
1991.
Immigration — Practice — Permanent resident applicant
given pre-application questionnaire (PAQ), not told of right to
make formal application immediately — Assessment points for
occupational category reduced between completing PAQ and
filing formal application — Whether duty of fairness requires
informing prospective immigrants of alternatives — Time at
which assessment points vest — Only date of application not
arbitrary — Date of application only date within control of
applicant — Immigration authorities having obligation to fur
nish basic information about methods of application and to
provide requisite forms.
This was an appeal from a Trial Division decision dis
missing an application for certiorari and mandamus against a
visa officer's refusal of an application for permanent residency
in Canada.
On October 13, 1987, the appellant inquired, at the Commis
sion for Canada in Hong Kong, about the means of applying
for permanent residence as an independent immigrant. He was
given a pre-application questionnaire (PAQ) to fill out. He was
not told that he could make a formal application immediately.
He returned the completed questionnaire on October 16, 1987
and, on October 28, was notified that his prospects of success
were excellent and was invited to submit a formal application,
along with the processing fee of $125. The appellant submitted
the application and fee on November 6, 1987. In the interval,
on November 2, 1987, the respondent had changed the units of
assessment for occupational demand for persons in the appel
lant's line of work from 10 to 1, with the effect that, instead of
earning acceptance with 74 points (the threshold being 70) he
was rejected with 65. At that time, the practice was to apply
the rules prevailing as of the moment the application was
"paper screened" by an officer. It was departmental policy not
to mention to potential applicants that the PAQ could be dis
pensed with if they preferred to make an immediate applica
tion.
Held, the appeal should be allowed.
In Wong v. Minister of Employment and Immigration this
Court held that an application takes effect when made, not
when it is paper screened. To use the date at which the file is
handled by a particular official would subject the rights of the
applicant to the vagaries of the administrative process. The
date of application is the only date within the control of the
applicant and, therefore, is the only date which can be estab
lished without arbitrariness. On June 3, 1988, the Department
itself adopted a policy of locking in assessment points when
the application is made; but, in law, the date for occupational
assessment has always rightly been the date of application.
Although prospective immigrants who use the PAQ get an
evaluation of their prospects of acceptance without having to
pay an application fee, it is for the applicant to make his own
decision as to what best serves his interests. The immigration
authorities have an obligation in fairness to provide basic
information upon which to make that decision, and to make
available the requisite forms.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Immigration Act, R.S.C., 1985, c. I-2.
Immigration Regulations, 1978, SOR178-172.
CASES JUDICIALLY CONSIDERED
REVERSED:
Choi v. Canada (Minister of Employment & Immigration)
(1990), 11 Imm. L.R. (2d) 303 (F.C.T.D.).
APPLIED:
Wong v. Minister of Employment and Immigration (1986),
64 N.R. 309 (F.C.A.).
CONSIDERED:
Minister of Manpower and Immigration v. Tsiafakis,
[1977] 2 F.C. 216; (1977), 73 D.L.R. (3d) 139 (C.A.).
COUNSEL:
Cecil L. Rotenberg, Q.C. for appellant.
Urszula Kaczmarczyk for respondents.
SOLICITORS:
Rotenberg & Martinello, Toronto, for appellant.
Deputy Attorney General of Canada for respon
dents.
The following are the reasons for judgment ren
dered in English by
MACGUIGAN J.A.: This is an appeal from a decision
[(1990), 11 Imm. L.R. (2d) 303] of the Trial Division
on September 27, 1990, denying certiorari and man-
damus with respect to the refusal, by a visa officer at
the Canadian Commission in Hong Kong, of the
appellant's application to be a permanent resident of
Canada.
When the appellant inquired how to apply for per
manent residence as an independent immigrant to
Canada, at the Canadian Commission in Hong Kong
on October 13, 1987, he was provided with a pre-
application questionnaire (a "PAQ") to fill out, but
was not told that he could make a formal application
immediately, if he so wished (and he was not so well-
informed as to request one).
Three days later, on October 16, 1987, he returned
the completed PAQ. On October 28, 1987, he
received the PAQ back, with the information that he
had received a positive assessment, that his prospects
for successful establishment were favourable, and
that, to apply, he should now complete the enclosed
formal application. He returned the completed appli
cation form (an "IMM8") with the required fee of
$125, on November 6, 1987.
At the time of the assessment of his PAQ, the
occupational demand for his skills, as computed in
Canada under the authority of the Minister of
Employment and Immigration, was 10 units of
assessment. Effective November 2, 1987, however,
the demand was reduced to 1 unit. He ultimately
obtained 65 units, including the 1 unit for occupa
tional demand, against a requirement of a total of 70
for issuance of a visa. With the earlier occupational
demand figure, which was in effect in October, 1987,
he would have obtained 74, and have therefore quali
fied.
The appellant contended that where an applicant
for immigration has certain duties imposed upon him
by the Immigration Act, R.S.C., 1985, c. I-2 ("the
Act"), and the Immigration Regulations, 1978,
SOR/78-l72, as amended ("the Regulations"), there
is a corresponding duty of fairness in all procedures
undertaken by the immigration authorities, particu
larly since the immigration system is a time-related
one in which juridical rights flow from an applica
tion, especially where monies are collected as a
processing fee.
The Motions Judge delivered careful and compre
hensive reasons for refusing the motion before him,
the most relevant portion being as follows (at pages
316-317):
In regard to the first two of the concerns about fairness
raised by counsel for the applicant, it is my view that no duty
of fairness to the applicant was breached by responding to the
applicant's initial enquiry on October 13 in providing him with
the PAQ form. It is suggested that "imposing on him a non
regulatory system ... had the effect of deflecting the applicant
from filing his application in a timely way". That effect is
based on two assumptions which are merely speculative in my
view. The first is that the applicant, if he had been given an
application form at his initial inquiry on October 13, would
have returned it completed with the required fee before the
change in units for demand for his occupation on November 2.
While in an affidavit of March 1, 1990, Choi avers that he
would have so done, that is said with the benefit of hindsight.
The second assumption, in my view, is perhaps more telling,
that is, that the applicant could have anticipated in the fall of
1987 when he applied, that in June 1988 the Minister would
vary the practice of the "lock-in" date for assessing occupa
tional demand, to the date of receipt of the application form
(IMM8), completed and with payment of the fee. At the time
of Choi's enquiry, of his application and of the paper screening
of the application in April 1988, prevailing practice was that
the effective date for assessing occupational demand was the
date of paper screening. Even if the applicant could be pre
sumed to be aware of the procedure to be followed in assessing
his application, at the time he enquired or when he submitted
his PAQ form or his formal application, he simply could not
have anticipated that units of assessment for occupational
demand would be assessed at any other date than when his
application was assessed in a preliminary way by paper screen
ing before a decision would be made whether or not he should
be interviewed.
I have already indicated my view that staff of the Commis
sion at the Hong Kong office owed no duty to the applicant, in
response to his initial inquiry, to provide him with an applica
tion form (IMM8) or to inform him of an option to obtain one
rather than a PAQ form. The evidence is clear that he did not
ask for an application form, and that had he done so one would
have been provided to him. It is unfortunate if, in responding
to his inquiry "as to the procedure for applying for permanent
residence in Canada", he was advised by the receptionist that
"in order to be allowed to apply for permanent residence ... I
would have to complete a questionaire" [sic] ... (the PAQ
form). (Quotations from Choi affidavit of March 1, 1990.) That
was not consistent with departmental policy. The evidence
does not support a conclusion that Choi was denied an applica
tion form at the time of his initial inquiry.
Because it was only as of June 3, 1988, that occu
pational units of assessment were "locked in" as of
the date of receipt of the application rather than as
(until then) of the date of paper screening, at the time
of the appellant's application it was not foreseeable
that the new demand units scale implemented on
November 2, 1987, would be the basis on which his
application would be ultimately judged. Thus, as mat
ters appeared to the learned Motions Judge, there was
a lack of any foreseeable consequence as to timing
that led him to reject the application of the duty of
fairness since the appellant had suffered no foresee
able ill effect.
But a new argument, one not raised before the
Motions Judge, emerged in the course of argument
before this Court. In Wong v. Minister of Employment
and Immigration (1986), 64 N.R. 309, at page 311,
this Court held (per Mahoney J.A.) "that an applica
tion for an immigrant visa is made when it duly initi
ates the process leading to the issue or refusal of the
visa and not only when that processing is committed
to the particular official authorized to dispose of the
application." Any other date except the date of appli
cation would be purely arbitrary as a "lock-in" date
for the occupational demand factor, depending solely
on the vagaries of the administrative process. The
application date is the only date within the control of
the applicant, and is consequently the only date that
can be established without arbitrariness.
In fact, the major element in bringing about the
change in the "lock-in" date of the occupational
demand factor on June 3, 1988, seems to have been
the Department's awareness of the legal vulnerability
of the previous arrangement. This is revealed by the
unclassified telex in which that instruction was sent
out to parts around the world, which reads as follows
(Appeal Book I, at page 111):
- OCCUPATIONAL FACTOR-DATE OF QUOTE LOCK-IN UNQUOTE
1. CURRENT INSTRUCTIONS REQUIRE POSTS ABROAD TO USE DATE OF
PAPER SCREENING AS THE POINT AT WHICH OCCUPATIONAL FACTOR IS
CONSIDERED QUOTE LOCKED-IN UNQUOTE THROUGH TO FINAL DISPO
SITION. THIS PROCEDURE HAS BEEN CHALLENGED ON GROUNDS OF
PROCEDURAL FAIRNESS AS IT DISADVANTAGES APPLICANTS CAUGHT
IN PAPER SCREENING BACKLOG WHEN OCCUPATIONAL FACTOR IS
DECREASED. COST RECOVERY ADDS FURTHER DIMENSION AS PROCESS
ING FEE IS PAID ON RECEIPT OF APPLICATION AND NO/NO REFUND IS
PERMITTED EVEN WHEN REFUSAL RESULTS FROM SUBSEQUENT
DECREASE IN OCCUPATIONAL FACTOR.
2. IN CONSULTATION WITH CEIC IT HAS BEEN AGREED THAT, EFFEC
TIVE IMMEDIATELY, OCCUPATIONAL UNITS OF ASSESSMENT ARE TO
BE QUOTE LOCKED-IN UNQUOTE AS OF DATE OF RECEIPT OF APPLICA
TION. THIS INSTRUCTION APPLIES TO ALL APPLICATIONS RECEIVED
HENCEFORTH AS WELL AS THOSE CURRENTLY IN BACKLOG AWAITING
PAPER SCREENING.
In light of Wong, I must give effect to this new
argument presented by the appellant that the "lock-
in" date for occupational assessment has always
rightly been the date of the receipt, by the Depart
ment, of the application. As a result, the difference in
effective dates, as between October 16 and November
6, 1987, changes from being consequence-free to
being consequence-laden, and I must therefore re
examine the events surrounding the initial visit of the
appellant to the Hong Kong office and the depart
mental practices at that time.
It seems to be true, as the Motions Judge pointed
out, that the receptionist's advice to the appellant that
"in order to be allowed to apply for permanent resi
dence ... [he] would have to complete a question
naire" (Appeal Book I, at page 58) was "not consis
tent with departmental policy" (Appeal Book II, at
page 285), but that does not advance the respondent's
case very much. It is an irresistible conclusion from
the evidences that departmental policy was to with-
I Immigration Manual, s. 425(1)(a) and (c) at Appeal Book
I, at p. 47 and II, at p. 251; Examination on affidavit of Bill
Gordon, Appeal Book II, at p. 161.
hold from applicants the information that they could
proceed either by way of a PAQ, or directly and
immediately by a formal application. If the applicants
knew enough to request an application form, they
were given one. If they did not, they were dealt with
cursorily by being given a PAQ, which had the pur
pose and effect of enormously reducing the adminis
trative burden on the visa officers of full processing
and live interviews 2 —doubtless a laudable objective,
in itself, but not, it seems to me, when achieved at the
cost of withholding relevant information from appli
cants.
It is true that there may be an advantage to appli
cants, too, in not proceeding with an application
immediately. Through a PAQ, they can get a ruling
on their case at no cost to themselves, since the requi
site fee is submitted only with the application. But
that is surely a choice that should be made by the
applicants themselves, and not by the Government
for them. The Government owes it to applicants, and
to its own integrity, to present the full picture to
applicants, so that, being in possession of the ground
rules, they can make their own judgments as to how
they want to proceed.
In Minister of Manpower and Immigration v.
Tsiafakis, [1977] 2 F.C. 216, at page 224, Le Dain J.
held for this Court as follows:
[A] person who seeks to sponsor someone for admission to
Canada has a right to make an application for his admission in
the prescribed form and to have his right to sponsor deter
mined upon the basis of such an application. Since such a right
cannot be exercised unless the prescribed form can be obtained
from the immigration authorities there is a correlative duty to
provide the form.
A similar correlative duty might, perhaps, be said to
exist in the case at bar, 3 but, at the very least, when
the Canadian Government, through its agents, under
takes to supply information to immigration applicants
as to how to become immigrants, it assumes a duty to
provide this information accurately. This does not
2 For example, in 1989 there were 321,724 PAQ's received,
whereas the number of IMM8's received and screened was
only 22,010 (Appeal Book, at pp. 73 and 116).
3 The Motions Judge was, I believe, correct in inferring
from the Act itself a right in claimants to apply.
imply that Canadian authorities must provide a
detailed exegesis of Canadian immigration law and
procedures, or legal advice to prospective immigrants
as to the legal significance of the available options,
but it does mean that the immigration authorities
have an obligation in fairness to provide basic infor
mation on the methods of application, and to make
available the appropriate forms.
Fairness may, perhaps, require no more than the
accurate presentation of information. But it surely
demands that much. For governments, as for ordinary
people, honesty is the best policy.
Because of the exigencies of fairness, my conclu
sion is therefore that the time of the appellant's appli
cation should be deemed to have been Octo-
ber 16, 1987, the date on which he returned his
completed PAQ to the Hong Kong office, with the
consequence that the units of assessment for occupa
tional demand should be deemed to be 10 in his case.
The appeal should be allowed with costs, the deci
sion of the visa officer refusing the appellant's appli
cation set aside, and the matter returned to a visa
officer for reconsideration on the basis that the occu
pational demand factor for the appellant should be
deemed to be 10 units of assessment.
MAHONEY J.A.: I agree.
LINDEN J.A.: I agree.
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.