Décision

[1]           The plaintiffs are challenging decisions of the Ministère de l’Immigration, de la Diversité et de l’Inclusion (“Immigration Québec”) rejecting their applications for a Quebec Selection Certificate. These decisions were based on the plaintiffs’ failure to disclose that they had paid an individual, Mr. Hari Sreedharan, to assist them in the application process. The disclosure requirement at issue is set out in section 11 of the Regulation respecting the selection of foreign nationals.[1] Pursuant to the second paragraph of section 3.2.1 of the Act respecting immigration to Québec[2] (“Immigration Act”), the Minister may — not must — refuse an application containing false or misleading information.

[2]           The plaintiffs do not deny that they retained Mr. Sreedharan’s services, nor do they deny that their applications, which mentioned Mr. Sreedharan in the section asking for each applicant’s mailing address, did not identify him as their consultant. Furthermore, the plaintiffs’ applications all indicated a negative answer to the question concerning the involvement of a paid immigration consultant. However, the plaintiffs claim that the problem has to do with the fact that they were the victims of a scheme that Mr. Sreedharan carried out in order to continue representing clients in Quebec despite having lost the right to do so in April 2013. Specifically, they contend that Mr. Sreedharan:

·        led them to believe that he was licensed to prepare and file applications on their behalf with Immigration Québec;

·        led them to believe that he actually did file applications on their behalf with Immigration Québec;

·        prepared the applications so as to have Immigration Québec believe that they had been prepared and filed by the plaintiffs themselves, without the assistance of a consultant; and

·        submitted letters and documents to Immigration Québec that purported to be from the plaintiffs, but that contained forgeries of their signature and were sent without their knowledge or authorization.

[3]           At the time Immigration Québec was considering the plaintiffs’ application, it was also conducting an investigation into Mr. Sreedharan’s activities in Quebec. That investigation led to a complaint to the Immigration Consultants of Canada Regulatory Council (“ICCRC”) which Immigration Québec filed on October 5, 2016. One week later, Immigration Québec wrote to the plaintiffs to notify them of its intention to reject their applications on the ground that they had not disclosed that Mr. Sreedharan had represented them in the application process.[3] In its notice, Immigration Québec made no mention of the fact that it had undertaken an investigation into Mr. Sreedharan’s activities which had led to the filing of a complaint with the ICCRC. Nor did it mention that Mr. Sreedharan had lost the right to work as an immigration consultant in Quebec in 2013.

[4]           The plaintiffs were given 90 days to respond. They did so in letters that are now said to have been prepared with the involvement of Mr. Sreedharan. The letters stated that Mr. Sreedharan had explained to the plaintiffs that he was not licensed to act as an immigration consultant in Quebec. For that reason, the plaintiffs assured Immigration Québec, they had completed and filed their applications on their own.[4]

[5]           The applications were rejected in March 2017 on the ground that the plaintiffs had failed to establish the truthfulness of their statements regarding the non-involvement of a paid immigration consultant.

[6]           It is the plaintiffs’ contention that they only learned of Mr. Sreedharan’s scheme after their applications were rejected by Immigration Québec. On the advice and with the assistance of Mtre Peter Shams, they requested an administrative review of the rejection decisions in early June 2017. In elaborate and detailed submissions, the plaintiffs sought to explain how Mr. Sreedharan’s alleged dishonest and unethical actions had tainted the fairness of the process that had led to the initial rejection decisions. They concluded that, because they were the victims of Mr. Sreedharan’s dishonesty, the Minister ought to find that they had not made false statements in their applications. Alternatively — in the event that it was found that they had made false statements —, they asked that the Minister exercise her discretion by not rejecting their applications.

[7]           The plaintiffs’ review requests were accompanied by several supporting documents detailing Mr. Sreedharan’s practices. Remarkably, these documents included an affidavit from Mr. Sreedharan himself, in which he admitted, among other things:

·        that he had continued to advise clients interested in immigrating to Quebec despite no longer being allowed to do so;

·        that he or his agents had ensured that the plaintiffs’ applications would not disclose his involvement in preparing and filing those applications;

·        that he had assured the plaintiffs — and led them to believe — that their applications had been properly filled out;

·        that he had never informed the plaintiffs of the complaint that Immigration Québec had filed against him with the ICCRC;

·        that he or his agents had inadequately prepared the letters responding to Immigration Québec’s October 2016 notices, in that these letters had been written with a view to protecting Mr. Sreedharan’s interests as opposed to the plaintiffs’; and

·        that the fault lied entirely with him and not with his clients.

[8]           Except for one applicant,[5] the review requests were all rejected by Immigration Québec within a matter of days. Immigration Québec’s letters, which were addressed to Mtre Shams, read as follows[6]:

Objet : Votre demande de révision administrative : […]

Maître,

Le 6 juin 2017, nous avons reçu un envoi relatif à la révision de la décision rendue dans le dossier de la personne citée en objet.

Nous sommes au regret de vous informer que le ministère de l’Immigration, de la Diversité et de l’Inclusion (MIDI) ne donnera pas suite à la demande de révision administrative puisque la demande a été rejetée en raison d’une fausse déclaration ou pour un document faux ou trompeur.

Veuillez noter qu’en vertu de l’article 3.2.2.1 de la Loi sur l’Immigration au Québec, la ministre peut refuser d’examiner toute demande de certificat présentée par une personne qui a fourni, depuis cinq ans ou moins, une information ou un document faux ou trompeur.

Quant à la faute reprochée à l’ancien représentant au dossier, le MIDI ne peut se porter responsable de l’entente qu’il a conclue avec votre client.

Veuillez recevoir, Monsieur, l’assurance de nos meilleurs sentiments.

[Emphasis added]

*           *           *

[9]           The parties disagree as to whether Immigration Québec considered the merits of the review requests and, if so, to what extent. The plaintiffs are of the view that the second and third paragraphs of the letters indicate that Immigration Québec refused to grapple with the substance of their requests. They add that, to the extent that the fourth paragraph suggests that Immigration Québec did analyze the merits of their requests, that paragraph is not sufficiently responsive to the case they presented. The plaintiffs thus contend that Immigration Québec never properly considered the unique circumstances in which their initial applications were prepared and filed. For its part, Immigration Québec contends that it did consider the merits of the review requests. It adds that the letters’ fourth paragraph indicates with sufficient clarity that the plaintiffs’ submissions had not provided sufficient grounds for disregarding the false statements regarding Mr. Sreedharan’s involvement in their applications.

[10]        On a balance of probabilities, I find that Immigration Québec did not fully consider the merits of the plaintiffs’ review requests. I do so for four reasons:

10.1.     According to its internal policy, Immigration Québec does not review immigration applications that were rejected, as opposed to refused.[7] In all likelihood, Immigration Québec was referring to that policy when it wrote, in the second paragraph of its letters to the plaintiffs, that “[Immigration Québec] ne donnera pas suite à la demande de révision administrative puisque la demande a été rejetée en raison d’une fausse déclaration ou pour un document faux ou trompeur”.[8] Furthermore, in the recent Kamran case, Immigration Québec took the position that “in the case of decisions to reject based on section 3.2.1 of the Immigration Act, the ‘lien de confiance’ is irremediably broken and the Minister is justified not to re-examine the demand in light of allegedly new or additional documents”.[9] These circumstances suggest rather strongly that the plaintiffs’ review requests were not fully considered on their merits.

10.2.     In the third paragraph of its letters, Immigration Québec invokes explicitly its power to “refuser d’examiner” — to refuse to examine — an application for a certificate made by a person who has provided false information in the preceding five years. Immigration Québec argues that this paragraph should be read not as an indication that it refused to consider the plaintiffs’ review requests, but rather as a reminder regarding future applications they might contemplate filing. However, Immigration Québec’s reading of that paragraph is not the only plausible one. As the plaintiffs pointed out, Immigration Québec did not use the future tense — “le ministre peut refuser d’examiner”[10] —, nor did it refer to future applications, like it did in other correspondence.[11] Furthermore, the broader structure of the letters favours the plaintiffs’ reading of that third paragraph, which is sandwiched between two paragraphs in which Immigration Québec is obviously providing reasons for its decisions. Had Immigration Québec’s intention merely been to remind the plaintiffs of how further applications would be handled during the next five years, one would have expected that paragraph to appear at the end of the letters, after the paragraphs setting out the reasons for its decisions.

10.3.     While the letters’ fourth paragraph refers to the allegations regarding Mr. Sreedharan’s reprehensible behaviour, the response given by Immigration Québec (“le MIDI ne peut se porter responsable de l’entente qu’il a conclue avec votre client”) is neither detailed nor particularly responsive to the plaintiffs’ submissions. This suggests that Immigration Québec did no more than examine the merits of the review requests in a preliminary and rather superficial manner.

10.4.     The fact that Immigration Québec ruled on all but one of the plaintiffs’ review requests only a few days after having received them provides a further indication that they were not fully considered on their merits.

[11]        The finding that Immigration Québec did not fully consider the merits of the plaintiffs’ review requests is of significant importance. To understand why, it is necessary to return to this Court’s decision in Kamran.

[12]        Kamran involved judicial review proceedings commenced by would-be immigrants whose applications had initially been rejected on the ground that they contained false information. The plaintiffs had subsequently asked that the decisions be reviewed on the basis of newly obtained information which allegedly showed that Immigration Québec’s conclusion as to the existence of false statements had been based on a misunderstanding of key facts. Immigration Québec had refused to consider the plaintiffs’ review requests and Justice Suzanne Courchesne found that it had been wrong to do so. The following excerpt from her decision, which Immigration Québec did not attempt to appeal, is worth quoting in full:

[57] On October 7, 2014, the Minister denied the Plaintiffs’ requests for reconsideration⁴⁸ for the reasons that the additional information should have been provided within the 60-day deadline given in the Intention to reject letters and that there was no administrative review process for decisions based on section 3.2.1 of the Immigration Act.⁴⁹

[58] The Minister pleads that in the case of decisions to reject based on section 3.2.1 of the Immigration Act, the “lien de confiance” is irremediably broken and the Minister is justified not to re-examine the demand in light of allegedly new or additional documents.

[59] The Plaintiffs submit that the Minister’s Refusal to Reassess, on the basis of an internal policy, was unlawful and that in refusing to reconsider the Decisions, she improperly fettered her discretion.

[60] The Decisions have an important impact on the Plaintiffs’ immigration project since the Minister may refuse to examine an application for a QCS made by a person who, in the past five years, has provided any false or misleading information or document relating to an application under the Immigration Act.⁵⁰

[61] The Plaintiffs were given the opportunity to provide information and explanations to complete their demand following the Intention to reject letters, in conformity with the provisions of the Act respecting administrative justice.⁵¹ As provided in section 3.2.1 of the Immigration Act, the Minister required, within a specific delay, that the Plaintiffs demonstrate the truthfulness of their declarations. They provided information which did not satisfy the Minister, for the reasons mentioned in the previous section.

[62] However, by her refusal to re-examine the Decisions when presented with new information, documents and arguments within a reasonable delay, the Minister acted contrary to the finality of section 3.2.1 of the Immigration Act, which is to eliminate applications containing untruthful declarations.⁵² An administrative practice must not be contrary to the legislative intent.⁵³

[63] The Minister recognizes that she has discretion to reconsider a decision to reject a QSC.⁵⁴ However, the Minister did not exercise her discretion since she denied any administrative revision process for decisions based on section 3.2.1 of the Immigration Act, on the basis of an internal policy.

[64] An internal policy should not invariably dictate the result of a decision and impose a position to which a public body may not derogate.⁵⁵

[65] The Minister’s refusal to consider whether the new evidence presented by the Plaintiffs warranted a reconsideration of the Decisions demonstrates that she unduly fettered the discretion afforded to her by law.

[66] This fettering of discretion by the Minister amounts to a reviewable error. The Refusal to Reassess is declared null and without effect.

________________

⁴⁸      Exhibit P-5.

⁴⁹      Exhibit P-53.

⁵⁰      Section 3.2.2.1 of the Immigration Act.

⁵¹      CQLR c.J-3., section 4.

⁵²      Journal des débats de la Commission de la Culture, exhibit P-51, p.65 to 67.

⁵³      Pierre Issalys and Denis Lemieux, « L’action gouvernementale, Précis de droit des institutions administratives », 3^rd edition, Éditions Yvon Blais, p. 115.

⁵⁴      Supra note 52.

⁵⁵      Pierre Issalys and Denis Lemieux, supra note 53, p. 109.

[13]        Immigration Québec urges the Court to distinguish Kamran. It argues that, in light of paragraph 62 of Justice Courchesne’s reasons, the case only stands for the proposition that an administrative review is required when newly discovered evidence suggests that the initial finding regarding the existence of a false statement was mistaken as a matter of fact. However, in the present case, the plaintiffs contended that the newly discovered evidence showed that the initial rejection decisions were mistaken as a matter of law — not fact —, because their arguments focused on how Mr. Sreedharan’s faults impacted, firstly, the characterization of the impugned declarations as false statements within the meaning of the Immigration Act and, alternatively, the manner in which the Minister ought to have exercised her discretion.

[14]        I do not find that distinction to be material. The point made by Justice Courchesne in paragraph 62 of her reasons was that Immigration Québec cannot refuse to consider a review request suggesting that the initial rejection decision was inconsistent with the purpose of section 3.2.1 of the Immigration Act. But that purpose is surely not limited to excluding applications containing one or several statements that are actually false: as section 3.2.1 provides that the Minister may — not must — reject an application containing a false statement, its purpose also includes avoiding the injustice that could result from an overly rigid approach that ignores the context in which a false statement was made.

[15]        This Court is, of course, not bound by its previous decisions. However, it is important for the sound administration of justice that, as a general rule, judges of first instance follow decisions previously rendered by their colleagues. Justice Sophie Bourque said as much in 2008, in a passage in which she quoted approvingly from Albert Mayrand’s famous article on the authority of precedent[12]:

Bien qu’au Québec, le juge de première instance se sente moins lié par les décisions de ses collègues, en pratique, il se conforme le plus souvent à la jurisprudence établie par le tribunal, et ce, « par courtoisie ou par solidarité professionnelle, mais surtout par souci d’une meilleure administration de la justice ».

Professor Mayrand’s emphasis on the sound administration of justice brings to mind Justice Benjamin Cardozo’s oft-cited words highlighting the practical justification for respecting precedent[13]:

[T]he labour of judges would be increased almost to the breaking point if every past decision could be reopened in every case, and one could not lay one’s own course of bricks on the secure foundation of the courses laid by others who had gone before him.

Furthermore, as the present case raises issues of public law, it seems relevant to point out that, in Canadian common law jurisdictions, it is well established that first instance judges can only depart from decisions from their own court in fairly narrow circumstances. The leading case of Re Hansard Spruce Mills Ltd.[14] was discussed in the following manner by Justice Lynn Smith in the Chief Mountain case[15]:

[90] In my view, as a general rule, previous decisions of this court should be followed in constitutional cases as much as in any other type of case. However, in deciding whether a previous decision on the same point of law should be followed, it is necessary to consider the context of both the previous decision and the current decision. It is in those contexts that the specific factors identified in Hansard Spruce Mills and Cairney should be addressed: whether the previous decision has been overtaken by more recent developments in the law; whether it was made without the benefit of full argument or without reference to some binding authority or statute; and whether it is palpably wrong.

[91] An additional factor in a constitutional case is the far-reaching impact of constitutional decisions. As our understanding of constitutional principles evolves and society changes, we may well need to revisit previous decisions and redevelop the jurisprudence relating to particular areas.

[92] That said, the starting point is that it is highly desirable to maintain consistency among decisions of the same court.

[Emphasis added]

[16]        The key question, then, is whether there are compelling reasons to depart from this Court’s holding in Kamran that Immigration Québec cannot refuse to consider a review request suggesting that the initial rejection decision was inconsistent with the purpose of section 3.2.1 of the Immigration Act.

[17]        Immigration Québec pressed the point that the requirements of procedural fairness vary according to the nature of the impugned decision and the context in which it was rendered. It also emphasized that its decisions on the plaintiffs’ review requests were administrative in nature rather than quasi-judicial, and that it was important to bear in mind that immigration is not a right, but a privilege.

[18]        Immigration Québec is right to point out that the requirements of procedural fairness are heavily context-specific.[16] Furthermore, it is well established that, generally speaking, foreign nationals do not have a right to immigrate to Québec.[17] However, the fact that immigration is a privilege rather than a right does not mean that Immigration Québec was under no duty to act fairly in its interactions with the plaintiff. The Supreme Court pointed out in Dunsmuir, after having emphasized that “[p]rocedural fairness is a cornerstone of modern Canadian administrative law”, that it is not merely when they render decisions affecting the rights of individuals that public decision makers are required to act consistently with the requirements of procedural fairness. The duty to act fairly is also engaged when their decisions impact the “privileges or interests” of individuals.[18] As Mtre Shams pointed out, Immigration Québec appears to acknowledge this, as its practice is to notify would-be immigrants of its intention to reject their applications and to provide them with an opportunity to respond to its concerns before making a final decision.

[19]        In any event, Immigration Québec’s point about the contextual nature of the requirements of procedural fairness is of little relevance to the second key proposition for which Karman stands, which is that the fettering of discretion based on an internal policy excluding any review of rejection decisions based on section 3.2.1 of the Immigration Act amounts to a reviewable error. This holding rests on sound and well-established principles.[19]

[20]        In sum, as no meaningful distinction can be made between the present case and Kamran, and because there are no compelling reasons to depart from that case’s holdings regarding the review of rejection decisions based on section 3.2.1 of the Immigration Act, Immigration Québec’s decisions to refuse to consider the plaintiffs’ review requests must be set aside.

*           *           *

[21]        While the plaintiffs’ application for judicial review is also directed at the initial rejection decisions, the preferable course of action[20] is, in my opinion, to remit the matter to Immigration Québec so as to let it consider — at the administrative review stage — whether, in light of the evidence that the plaintiffs subsequently obtained, the initial rejection decisions ought to be maintained. Proceeding in this manner seems more respectful of the autonomy of the administrative process and more consistent with the general rule according to which “judicial review is available only if the judgment or the decision cannot be appealed or contested/[le] pourvoi [en contrôle judiciaire] n’est ouvert que si le jugement ou la décision qui en fait l’objet n’est pas susceptible d’appel ou de contestation” (article 529, 2^nd paragr. C.C.P.)[21]. I thus refrain from considering the plaintiffs’ arguments directed at the initial rejection decisions.

WHEREFORE, THE COURT:

[22]        GRANTS in part the plaintiffs’ application for judicial review;

[23]        DECLARES null and without effect Immigration Québec’s decisions in respect of the plaintiffs’ requests for a review of the initial decisions rejecting their applications for Quebec Selection Certificates;

[24]        REMITS the plaintiffs’ requests for a review of the initial decisions rejecting their applications for Quebec Selection Certificates to a different decision-maker;

[25]        WITH LEGAL COSTS.