Canada (Minister of Citizenship and Immigration) v. Tan, docket IMM-3954-97

Date: 19981211

Docket: IMM-3954-97

BETWEEN:

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Applicant

     - and -

     COOC HONG TAN

     Respondent

     REASONS FOR ORDER

ROTHSTEIN J.:

[1]      The issue in this judicial review is whether the Immigration Appeal Division had the jurisdiction under paragraph 70(1)(b) to decide an appeal by the respondent from the decision of an adjudicator under subsection 32(2) of the Immigration Act, R.S.C. 1985, c. I-2, ordering his deportation. The Minister brings the judicial review application as the Appeal Division found that it had jurisdiction to hear the appeal and stayed the respondent's deportation for a period of three years.

[2]      The relevant facts may be briefly stated. The respondent was born in Vietnam and moved to China. On December 1, 1989, he applied for permanent residence in Canada as a dependent. On June 11, 1993, he obtained an immigrant visa. On July 13, 1993, he was married. On September 8, 1993, he arrived at the Vancouver port of entry. When questioned by an immigration officer at the port of entry, he did not disclose that he had been married since issuance of his visa. He was granted landing by the immigration officer.

[3]      Had he disclosed his marriage, it would have been apparent that a condition of his immigrant visa was no longer complied with, in that at the relevant time, a dependent was defined in the Immigration Regulations as an unmarried son. Presumably, he would have been refused landing on that account.

[4]      The applicant's marriage prior to his landing came to the attention of the immigration authorities. It was on the basis of his misrepresentation of his marital status at the port of entry that proceedings were commenced under paragraph 27(1)(e) of the Immigration Act against him. Paragraph 27(1)(e) provides:

[5]      The thrust of the applicant's argument is that the respondent was never a permanent resident because of his misrepresentation at the port of entry. In other words, he was never landed because landing is defined in subsection 2(1) of the Immigration Act as "lawful permission to establish permanent residence in Canada" and obtaining permission by reason of misrepresentation cannot result in lawful permission.

[6]      There have been a number of recent decisions of the Trial Division of the Federal Court on the question of the jurisdiction of the Immigration Appeal Division in cases such as this. The one I find most persuasive is The Minister of Citizenship and Immigration v. Seneca, April 6, 1998, IMM-2836-97, (F.C.T.D.) per Noël J. (as he then was), as yet unreported. No useful purpose would be served by a reiteration of his articulate reasons here. Noël J. found that the Immigration Appeal Division had jurisdiction to hear and decide appeals of the nature at issue here. I adopt his reasoning and find that the Appeal Division correctly assumed jurisdiction in this case.

[7]      I would make only four brief observations in relation to arguments advanced by the applicant in the case before me. The first is that it is difficult to imagine to what type of individual paragraph 27(1)(e) could apply if, by reason of misrepresentation, permanent resident status was never conferred. Applicant's counsel suggests it might be a person who made a non-material misrepresentation or a misrepresentation that would not affect an immigration officer's decision to allow landing. If the only misrepresentation contemplated are those without legal effect, it is difficult to understand why Parliament would have been concerned about them in paragraph 27(1)(e). This explanation is without merit. The premise of paragraph 27(1)(e) is that a person obtains permanent resident status through misrepresentation. Therefore, the misrepresentation cannot be a basis for saying that permanent resident status was never conferred.

[8]      Second, an individual is considered to be a permanent resident for purposes of proceedings initiated by an immigration officer under subsection 27(1) and for purposes of an adjudication under subsection 32(2). Subsection 32(2) provides:

I find it illogical to think that it is somehow implicit in subsection 70(1) that at the appeal stage, permanent resident status is to be addressed by the Appeal Division as a condition precedent to its jurisdiction. I cannot reconcile why permanent resident status would be accepted for purposes of subsection 27(1) and subsection 32(2) but not subsection 70(1). As Noël J. found in Seneca, the obvious scheme of the Act is to include a process of appeal from a deportation order issued against a permanent resident.

[9]      Third, the applicant relies on the definition of permanent resident in subsection 2(1) of the Immigration Act and subsections 10(1) and 10(2) of the Citizenship Act:

[10]      The argument seems to be that if an individual obtains citizenship after a misrepresentation in obtaining permanent resident status, he not only loses his status as a citizen but also as a permanent resident. It is argued that a person cannot be in a preferred position in respect of his or her permanent resident status because his misrepresentation is caught before he obtained citizenship. I think this argument ignores the fact that under subsection 10(2), a process under the Immigration Act is required in order to determine that the individual obtained permanent resident status by false representation or by fraud. That, I think, is the process provided by subsection 27(1), 32(2) and 70 of the Immigration Act.

[11]      Applicant's counsel relies on subsection 24(1) of the Immigration Act but I think that subsection supports the respondent's position. Subsection 24(1) provides:

[12]      The applicant suggests that because the Immigration Appeal Division is without jurisdiction, it cannot quash or stay a deportation order and therefore the respondent ceases to be a permanent resident upon issuance of the deportation order. However, I interpret subsection 24(1) as setting out the statutory scheme by which a person ceases to be a permanent resident. The scheme expressly provides for the quashing or staying of a removal order which would otherwise result in the individual ceasing to be a permanent resident. It must follow that subsection 24(1) recognizes the possibility, arising from an appeal under subsection 70(1), that permanent resident status may not cease by reason of a quashing or stay of a removal order. That indicates the Appeal Division has the jurisdiction it assumed in this case.

[13]      For these reasons, the judicial review is dismissed. The following question is certified for appeal and should be consolidated with questions submitted in Seneca:

     Marshall Rothstein

     J U D G E

OTTAWA, ONTARIO

DECEMBER 11, 1998