Date: 20070605
Docket: IMM-4249-06
Citation: 2007 FC 593
Ottawa, Ontario, June 5,
2007
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
XIAO
LING ZHANG
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
In
January 2004, Chinese citizen Xiao Ling Zhang received a visa in the mail from
Canadian immigration authorities. Roughly one month after it was issued, her
visa was revoked. She was asked to return it. Instead, she flew to Canada with the invalid
document, and tried to use it to enter the country. That visa and its
invalidity are at the heart of this application, which addresses the
Immigration and Refugee Board’s jurisdiction to hear an appeal from an
applicant whose visa is not valid.
FACTS
[2]
In
November 2000, Ms. Zhang applied for a permanent resident visa at the Canadian
Visa Post in Beijing. She applied as an independent, and said she
had never been married. In 2001, she married Mr. Dian Yin Jiang in China and changed her application to reflect her marriage.
As Mr. Jiang had a sister in Canada, Ms. Zhang received an additional five
points on her application as an assisted relative.
[3]
Mr.
Jiang claimed refugee status in Canada in 2002. During his
hearing, he produced a marriage certificate between himself and another woman.
While Ms. Zhang received her visa in the mail in January 2004, the Visa Post soon
learned about her husband’s refugee hearing in Canada. Once
authorities confirmed the refugee claimant and Ms. Zhang’s husband were the
same person, they called Ms. Zhang to say there was a problem with her visa and
it had been cancelled. They
asked her to return the visa to the Visa Post. Instead, she bought a plane
ticket to Canada.
[4]
When
Ms. Zhang arrived in Canada in February 2004, immigration authorities
realized her visa has been revoked and referred her to an admissibility
hearing. On April 3, 2004, an immigration officer found Ms. Zhang inadmissible
to Canada under s.
20(1)(a) and 41(a) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27, which say:
|
20.(1)
Every foreign national, other than a foreign national referred to in section
19, who seeks to enter or remain in Canada
must establish,
(a)
to become a permanent resident, that they hold the visa or other document
required under the regulations and have come to Canada in order to establish permanent
residence;
|
20.
(1) L’étranger
non visé à l’article 19 qui cherche à entrer au Canada ou à y séjourner est
tenu de prouver :
(a)
pour devenir un résident permanent, qu’il détient les visa ou autres
documents réglementaires et vient s’y établir en permanence;
|
|
41. A person is inadmissible for failing to comply with
this Act
(a) in the case of a foreign national, through an act or
omission which contravenes, directly or indirectly, a provision of this Act;
|
41.
S’agissant
de l’étranger, emportent interdiction de territoire pour manquement à la
présente loi tout fait — acte ou omission — commis directement ou
indirectement en contravention avec la présente loi…
|
[5]
Ms.
Zhang tried to appeal the officer’s decision to the Immigration and Refugee
Board’s Immigration Appeal Division (the Board). And that is where she ran into
problems. The Board has jurisdiction to hear appeals against removal orders
from admissibility hearings. However, its jurisdiction is set out specifically
at s. 63(2) of the IRPA, which says:
A foreign national who holds a
permanent resident visa may appeal to the Immigration Appeal Division
against a decision at an examination or admissibility hearing to make a removal
order against them.
[Emphasis added]
Thus, the section limits the Board’s appeal
jurisdiction to foreign nationals who hold permanent resident visas. At Ms.
Zhang’s hearing, the Minister argued the Board had no jurisdiction under s.
63(2). Because her visa had been revoked, the Minister said she did not “hold”
a permanent resident visa.
[6]
The
Board agreed with the Minister, relying on Canada (Minister of
Citizenship and Immigration) v. Hundal, [1995] 3 F.C. 32. In
that case, Justice Marshall Rothstein found four exceptions to the general
principle that once a visa is issued, it remains valid. Having one’s visa
revoked is one of those exceptions. Ms. Zhang, for her part, argued the Hundal
decision was no longer applicable, because it was based on the former Immigration
Act. She claimed the Board had to take note of the differences between s.
63(2) of the IRPA and its equivalent provision in the former legislation, which
said:
|
70. (2) Subject to subsections (3) and
(4), an appeal lies to the Appeal Division from a removal order or
conditional removal order made against a person who
[…]
(b)
seeks landing or entry and, at the time that a report with respect to the
person was made by an immigration officer pursuant to paragraph 20(1)(a), was
in possession of a valid immigrant visa, in the case of a person seeking
landing, or a valid visitor's visa, in the case of a person seeking entry.
[Emphasis added]
|
70.
(2) Sous réserve des paragraphes (3) et (4), peuvent faire appel devant la
section d’appel d’une mesure de renvoi ou de renvoi conditionnel :
[…]
(b)
les personnes qui, ayant demandé l’admission, étaient titulaires d’un visa de
visiteur ou d’immigrant, selon le cas, en cours de validité lorsqu’elles ont
fait l’objet du rapport visé à
l’alinéa 20(1)(a).
|
Since s. 70(2)(b) of the Immigration Act
included the word “valid” and s. 63(2) of the IRPA does not, Ms. Zhang argued
Parliament intended to remove validity as a prerequisite for the Board’s
jurisdiction to hear appeals of removal orders.
[7]
The
Board rejected Ms. Zhang’s argument, writing, “Surely one cannot be said to be holding a permanent
resident visa where the visa in question is not a valid one? Further, how can
one be said to be holding a revoked visa?” While the Board acknowledged the
differences between the new and old provisions, it concluded the statutory
intent behind the two was largely the same. As such, it refused jurisdiction to
hear Ms. Zhang’s appeal. This is a judicial review of that decision.
ISSUE
Does the Board have jurisdiction, under s.
63(2) of the IRPA, to hear the
appeal of a foreign national whose visa has been revoked?
ANALYSIS
[8]
The
question at issue in this application is one of law. Accordingly, the Court
will only defer to the Board’s reasons if they were correct. Having said that,
I am quite confident they were.
[9]
Ms.
Zhang’s submissions to the Court were based on a literal reading of the IRPA.
Just as she argued before the Board, she claimed that if legislators intended to limit appeals under s.
63(2) to foreign nationals with valid permanent resident visas, they would not
have cut the word “valid” from the section when they drafted the IRPA. Any case
law discussing the notion of validity stemmed from the fact that validity was a
legislative requirement at the time - one that no longer exists.
[10]
In compelling
submissions, the Minister’s counsel went through an extensive analysis of
statutory interpretation. He explored the implications of adopting Ms. Zhang’s
interpretation of s. 63(2) under a textual, contextual and purposive analysis
of both the individual provision and the IRPA as a whole. Under each scenario,
Ms. Zhang’s interpretation of the IRPA would be inconsistent with legislative
intent.
[11]
For example, under a
textual analysis, courts should presume words have their ordinary meaning
absent any proof to the contrary. S. 63(2) of the IRPA is written in the
present tense, whereas the former s. 70(2)(b) was drafted in the past tense.
That Ms. Zhang once “held” a permanent resident visa does not place her within
the ambit of s. 63(2), according to the Minister. The provision only applies to
one “who holds” a permanent resident visa. I agree.
[12]
In
a contextual analysis, one looks at a provision within the broader scheme of
the act in which it is written. Various sections of the IRPA require foreign
nationals to continually demonstrate they are entitled to enter Canada. For
example, under s. 11(1) of the IRPA, a foreign national will only be issued a
visa if she is not inadmissible and meets the legislative requirements. Under s.
20(1)(a) of the IRPA, a foreign national trying to enter Canada must show
they “hold the visa or other documentation required under the regulations…” or
they will be denied entry. Again, I fully agree with the Minister’s submission
that the Court would be ignoring the IRPA’s overall scheme if it found Ms.
Zhang was someone who “holds” a permanent resident visa, despite the fact that
her visa was cancelled and she would otherwise not be admitted into the country.
[13]
Under a purposive
approach, one interprets statutory provisions based on Parliamentary intent.
Turning to s. 63(2), Parliament intended to give foreign nationals with
legitimate permanent resident visas the chance to appeal removal orders that
would have denied them entry despite having the visas. A removal order based on
criminality is one example. Parliament can hardly be said to have intended that
foreign nationals would be able to use visas revoked by Canadian officials in
an attempt to fraudulently enter the country, and then rely on those revoked
visas as a basis for their appeal rights.
[14]
As
the Minister so deftly argued, Ms.
Zhang’s analysis runs counter to the Supreme Court of Canada’s decision in Rizzo
& Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, because it would lead to
two absurd consequences. To find that s. 63(2) of the IRPA applies to
applicants with invalid permanent resident visas would give persons with no
right to be in Canada the right to appeal a removal order
denying their ability to be in Canada. Further, the same person found to violate
s. 20(1)(a) of the IRPA for not possessing a permanent resident visa could be
deemed to hold a permanent resident visa under s. 63(2). Their right to appeal
the decision would directly contradict the reason they were originally found
inadmissible.
[15]
In
my view, Ms. Zhang’s argument is based on the presumption that the best way to
interpret s. 63(2) of the IRPA is to compare it with the equivalent provision
in the former Immigration Act. While this might be a helpful approach in
certain cases, it is by no means the only means of statutory interpretation.
And in this particular case, general principles of statutory interpretation
make it clear that Ms. Zhang’s argument must fail.
[16]
If s. 63(2) applied to
“invalid” visas, like those that have been revoked, would it also apply to ones
that have expired? This logic defies common sense. From reading Ms. Zhang’s
submissions, it appears that any foreign national holding a visa in his hand
would be entitled to an appeal under s. 63(2), regardless of whether the
Canadian government intended to give that document any legal effect. The fact
that Ms. Zhang still held the physical copy of her visa did not change the
legal consequence of its revocation. Rather than pursuing an appeal of the
immigration officer’s removal order before the Board, she should have sought
judicial review of the officer’s decision in this Court. That option was still
open to her, despite the fact that she did not qualify for an appeal under s.
63(2).
[17]
Ms. Zhang has asked the
Court to certify the following question:
Should the words in s. 63(2) of
the IRPA, “A foreign national who holds a permanent resident visa may appeal to
the Immigration Appeal Division against a decision at an examination or
admissibility hearing to make a removal order against them,” be read as: “A
foreign national who holds a valid permanent resident visa may appeal to
the Immigration Appeal Division against a decision at an examination or
admissibility hearing to make a removal order against them”?
[18]
In
Liyanagamage v. Canada (Minister of Citizenship and Immigration)
(1994), 176 N.R. 4 at paragraph 4, the Federal Court of Appeal held that a
certified question must be one which, in the Court’s opinion, contemplates
issues of broad significance and general application, transcends the interests
of the immediate parties to the litigation, and is determinative of the appeal.
As I do not think the above question meets the first of these criteria, I will
not certify it. For all of these
reasons, this application for judicial review is dismissed.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is dismissed.
"Yves
de Montigny"
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