IMM-396-97
BETWEEN:
ARDIE
QUIZON,
Applicant,
-
and -
MINISTER OF
CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS
FOR ORDER
REED J.
The applicant
seeks to have a decision of the Appeal Division of the Immigration and Refugee
Board ("IAD") set aside. That decision dismissed the applicant's
appeal of a deportation order. The order was issued against him because he was
found to be a person described in paragraph 27(2)(e) of the Immigration Act,
a person who:
was granted landing by reason of possession of a false or improperly
obtained passport, visa or other document pertaining to his admission or by
reason of any fraudulent or improper means or misrepresentation of any material
fact, whether exercised or made by himself or by any other person;
(underlining
added)
The applicant
was admitted to Canada as a landed immigrant, as a member of a family class.
He married a resident of Canada, Leonila Paraton, in the Philippines, in June
of 1990. They had been communicating by telephone and letter for the previous
year. She returned to Canada and on October 1, 1990, filed a request to
sponsor the applicant for landing. On January 23, 1991, the applicant applied
to be admitted as a permanent resident to Canada. Before he was issued an
immigrant visa and granted landing he entered into a ceremony of marriage with
another woman, Maria Nena Solas. This occurred on April 29, 1991. The
marriage took place before a judge in the Philippines and was duly registered.
The applicant alleges that he took part in this marriage ceremony under
duress. He and Ms. Solas had renewed their acquaintance. Cousins of Ms. Solas
found the applicant and Ms. Solas in bed together and forced him to marry her.
He did not disclose this second "marriage" to immigration officials
when he obtained his immigration visa on August 19, 1991, or when he entered
Canada on September 11, 1991.
At that time,
a person was not inadmissible to Canada on the ground that he had committed a
criminal offence outside of Canada. A conviction had to have been obtained.
Had the events of April 29, 1991, been disclosed to immigration officials, the
evidence shows that this would have caused them to investigate the bona
fides of the marriage to Leonila Paraton, to investigate whether it had
been entered into primarily for immigration purposes. The visa officer in
Manila states that had he known about the second "marriage" he would
not have issued the applicant a visa.
The applicant
did not answer any question untruthfully either in Manila or on entry into
Canada. Thus, he did not offend subsection 9(3) or 12(4) of the Immigration
Act. He simply did not volunteer any
information concerning the "marriage" of April 29, 1991. Section 12
of the Immigration Regulations, 1978 deems certain questions to have
been asked at the port of entry. That section deals with changed
circumstances (e.g. marital status) between the time of the issuance of a visa
and the date of entry into Canada. Subsection (b) also imposes an obligation
to disclose "facts relevant to the issuance of the visa [that] were not
disclosed at the time of the issue thereof".
Item 31 of the
application form (IMM8-08-89), which the applicant filed for permanent resident
status, states that the applicant understands that any concealment of a
material fact may result in his permanent exclusion from Canada.
Counsel for
the applicant argues that the decisions of both the adjudicator and the IAD
proceeded on the assumption that the second marriage had some independent legal
validity and the applicant could not be expected to guess that a void second
"marriage" was material to his immigration to Canada as the spouse of
Leonila Paraton. The second "marriage" was void under the law of the
Philippines, as it would be under the law of Canada.
The
adjudicator appears to have proceeded on the assumption that the second
"marriage" had some validity that had to be vacated by an
administrative decision or court order; the IAD did not. The essence of the
latter's decision is found in the following text of the reasons for decision:
Counsel for the appellant entered the
relevant sections of the "Civil Code of the Philippines" into
evidence, the relevant sections of which refer to a bigamous marriage as being
"void from the beginning". In his testimony, the appellant referred
to a letter received from the Philippines consulate which evidently confirms
this. Counsel argues that because the appellant's marriage to Maria Nena Solas
was void ab initio, there was in effect no marriage. If there was no marriage,
the fact that the appellant did not disclose the non existent marriage to
immigration authorities does not amount to a misrepresentation.
The Supreme Court of Canada in Brooks1
characterizes as a misrepresentation "untruths or misleading answers"
which have "the effect of foreclosing or averting further inquiries, even
if those inquiries might not have turned up any independent ground of
deportation". The Federal Court of Appeal in the Medel2
case, held that immigration claimants owe a positive duty of candor to disclose
information which could reasonably and objectively be said to be relevant. Can
the fact that the appellant entered into a second marriage after the marriage
to his sponsor and shortly before a visa was issued to him be considered
relevant? Could the fact of this second marriage be considered a material fact
which, if disclosed, might have lead the immigration authorities to make
further inquiries?
I find that the fact that the appellant
entered into a marriage in a civil ceremony which complied with all of the
formalities of marriage and which was duly registered as such, is a material
fact which should have been disclosed both to the visa officer and the
immigration officer at the port of entry. Had the immigration authorities
known of the second marriage of the appellant to Maria Nena Solas, they may
have decided to investigate the bona fides of the relationship between the
appellant and his sponsor, Leonila Paraton, they would have had the opportunity
to make inquiries as to whether bigamy is a criminal act in the Philippines (it
was at the time of the Brooks decision, as this was referred to in that case),
as it is in Canada, for marriages which take place in Canada, they could have
looked into the legality of both or either the first or second marriage in the
Philippines. All of these avenues of inquiry were closed off because the
appellant failed to disclose the existence of his second marriage entered into
while his first marriage subsisted.
Before me, the appellant stated that he
failed to disclose his second marriage to the immigration authorities firstly,
because he was not asked whether he was married to anyone else, and secondly
because he had consulted a lawyer who advised him that the second marriage was
of no force and effect. If the appellant did consult a lawyer, which he denied
doing at the inquiry before the adjudicator, he could have advised the
immigration authorities of this fact, together with the fact of his second marriage.
This would have allowed the immigration officials an opportunity to research
the law concerning bigamous marriages in the Philippines and ascertain whether
the appellant's second marriage would have an effect of his admissibility into
Canada.
_________________________
1M.M.I. v. Brooks, [1974] S.C.R. 850.
2Medel v. M.E.I., [1990] 2 F.C. 345; 10 Imm. L.R. (2d) 274 (C.A.)
Because of his failure to disclose a
material fact, I find the appellant to be a person described in section
27(1)(e) of the Act. I therefore find the removal order made against
him to be valid in law.
The test to be
applied on judicial review is whether the decision maker:
(a) acted without jurisdiction, acted beyond its jurisdiction or
refused to exercise its jurisdiction;
(b) failed to observe a principle of natural justice, procedural
fairness or other procedure that it was required by law to observe;
(c) erred in law in making a decision or an order, whether or not
the error appears on the face of the record;
(d) based its decision or order on an erroneous finding of fact
that it made in a perverse or capricious manner or without regard for the
material before it;
(e) acted, or failed to act, by reason of fraud or perjured
evidence; or
(f) acted in any other way that was contrary to law.
I cannot so
characterize the decision under review.
It is my
understanding that counsel wish to address the possible certification of a
question for appeal. If a question for certification is to be proposed counsel
should inform the Registry before the close of business on August 21, 1997.
OTTAWA, Ontario.
August 15, 1997.
Judge
Email this Content