Podlaszecka v. Minister of Manpower and Immigration, [1972] SCR 733

Supreme Court of Canada

Podlaszecka v. Minister of Manpower and Immigration, [1972] S.C.R. 733

Date: 1972-01-25

Stefania Podlaszecka Appellant;

and

The Minister of Manpower and Immigration Respondent.

1971: October 27; 1972: January 25.

Present: Abbott, Martland, Hall, Pigeon and Laskin JJ.

ON APPEAL FROM THE IMMIGRATION APPEAL BOARD

Immigration—Application for permanent residence by person admitted to Canada as non‑immigrant—Regulations requiring immigrant visa and medical certificate not applicable—Immigration Act, R.S.C. 1952, c. 325, s. 7(3)—Immigration Regulations, Part 1, ss. 28(1), 29(1)(b).

The appellant was admitted to Canada as a non-immigrant on a visitor’s visa and subsequently applied for permanent residence in this country. Her application was not approved and she was requested to leave Canada by July 5, 1967. A second application for permanent residence in Canada was made by the appellant on May 6, 1968. This application was also refused and the applicant was requested to leave by August 1, 1968. Appellant did not leave Canada and, on May 5, 1969, a registered letter was sent informing her that she had been examined by an immigration officer who had made a report to a Special Inquiry Officer, under s. 23 of the Immigration Act. In this report the officer stated his opinion that the appellant could not be admitted because (a) she would not have been admitted if examined outside Canada on account of being assessed 32 units instead of the required minimum of 50; (b) she was not in possession of an unexpired passport; (c) she was not in possession of an immigrant visa issued by a visa officer pursuant to s. 28(1) of the Immigration Regulations, Part 1; (d) she did not have a medical certificate as prescribed by s. 29(1) of the Regulations. The letter further informed her that there would be an inquiry as a result of which a deportation order might be made. The inquiry was held on May 7, 1969, and a deportation order made on the four grounds above mentioned.

On appeal, the Immigration Appeal Board held the first two grounds ill-founded, but found grounds

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(c) and (d) valid. Leave to appeal was given by this Court on those last two grounds.

Held (Abbott and Pigeon JJ. dissenting): The appeal should be allowed and the deportation order quashed.

Per Martland, Hall and Laskin JJ.: The appellant had status under s. 7(3) of the Immigration Act. She had a valid and subsisting non-immigrant visa when she entered Canada and was entitled to apply in Canada for permanent residence within the period of her temporary stay, which she did. Regulation 28(1) could not be applied to her without destroying her status under s. 7(3).

As to ground (d), it was necessary to determine whether s. 29(1) (b) is applicable to a person like the appellant who, having come within s. 7(3) of the Act, is “deemed to be a person seeking admission to Canada”. Section 29(1) (b) applies to an “immigrant”, a term defined in s. 2(7) of the Act as “a person who seeks admission to Canada for permanent residence”. Although it comes to the same thing in the present case, a person who acquires status under s. 7(3) is not specifically designated an “immigrant”. In so far, therefore, as s. 29(1) (b) makes possession of a medical certificate obtainable outside Canada a condition of original admission of a person to Canada for permanent residence, it could not apply to a person like the appellant.

By virtue of s. 21 of the Act, it is within the contemplation of the Act and the Regulations that a person already lawfully in Canada may be required to produce a medical certificate when he seeks permanent residence. However, the appellant’s failure to include such a certificate with her application was not a disqualifying consideration in the absence of a requirement under the official form or a notice or request to provide such a certificate.

Espaillat-Rodriguez v. The Queen, [1964] S.C.R. 3, distinguished.

Per Abbott and Pigeon JJ., dissenting: The only question arising on the two grounds on which the deportation order now rested was whether the Court was bound by its decision in Espaillat-Rodriguez v. The Queen, supra, and the only reason suggested that that case should no longer be considered binding was that it had been decided on a certiorari while there is now a right of appeal to the Immigra-

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tion Appeal Board with a further right of appeal to this Court by leave on questions of law. The conclusions of the majority in the Espaillat-Rodriguez case as to the construction and effect of s. 7(3) of the Act and of s. 28(1) of the Regulations in no way depend on the circumstance that the proceedings were initiated by certiorari. They are an essential part of the reasoning leading to the conclusion that the deportation order was validly made on the grounds stated which are the same as in the instant case.

APPEAL from a decision of the Immigration Appeal Board, whereby the Board dismissed an appeal from a deportation order. Appeal allowed, Abbott and Pigeon JJ. dissenting.

J. Polika, for the appellant.

A.M. Garneau and P. Bétournay, for the respondent.

The judgment of Abbott and Pigeon JJ. was delivered by

PIGEON J. (dissenting)—On November 17, 1966, the appellant was admitted to Canada as a non-immigrant for a period to expire May 16, 1967. She had a visitor’s visa issued at Warsaw on her Polish passport. On the last day of her authorized stay as a visitor, she informed the Immigration authorities by letter that she wished to apply for permanent residence in Canada. On June 14, 1967, she signed an application for permanent admission on a form provided by the Immigration authorities and entitled “Application for permanent admission by a non‑immigrant in Canada”. Under this heading, the following was printed:

IMPORTANT: If your application is refused, you will be notified of the date by which you are expected to effect voluntary departure from Canada, failing which, you may be the subject of an inquiry under the Immigration Act to determine your right to remain in Canada.

On June 15, 1967, a registered letter was sent by an Immigration officer to the appellant in which she was advised that her application for

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admission as an immigrant could not be approved and she was requested to leave Canada by July 5, 1967.

By Order in Council P.C. 1967-1616 dated August 16, 1967, effective October 1, 1967, important amendments were made to the Immigration Regulations. In particular, a new section 34 defined the expression “applicant in Canada” and provided that notwithstanding s. 28, such an applicant who “is not in possession of an immigrant visa or letter of pre‑examination but, in the opinion of an immigration officer would on application be issued a visa or letter of pre-examination if outside Canada” may be admitted in Canada for permanent residence subject to a number of enumerated conditions.

On May 6, 1968, appellant made a new application for permanent residence in Canada on an official form. On July 18, 1968, a registered letter was sent by an immigration officer informing her that her application to remain permanently in Canada “had been considered in relation to the Immigration regulations governing admission of applicants in Canada”, that this application was refused and that she was requested to leave Canada by August 1, 1968.

Appellant did not leave Canada and, on May 5, 1969, another registered letter was sent informing her that she had been examined by an immigration officer who had made to a Special Inquiry Officer, under s. 23 of the Immigration Act, a report that may be summarized as follows:

Appellant cannot be admitted because:

(a) she would not have been admitted if examined outside Canada on account of being assessed 32 units instead of the required minimum of 50;

(b) she is not in possession of an unexpired passport;

(c) she is not in possession of an immigrant visa;

(d) she does not have a medical certificate as prescribed.

The letter further informed her that there would be an inquiry as a result of which a deportation

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order might be made. The inquiry was held on May 7, 1969, and a deportation order made on the four grounds above mentioned.

On appeal, the Immigration Board, in reasons dated September 26, 1969, held the first two grounds ill-founded. On ground (a), the Board would not take into consideration the application made in 1968, although it was filed on the appeal, being of the view that the provision authorizing it to receive additional information did not enable it to take into account evidence that was not presented before the Special Inquiry Officer and was necessary to support the deportation order. On ground (b), the Board said this was ill-founded because appellant’s passport was valid to September 19, 1967, and, therefore, valid when she first sought admission to Canada for permanent residence on May 16, 1967. However, the Board found grounds (c) and (d) valid on the basis of the decisions rendered in Re Mannira[1] and Espaillat-Rodriguez v. The Queen[2].

Leave to appeal was given by this Court on those last two grounds and at no time did counsel for the Minister request that consideration be given to the other grounds for the purpose of supporting the conclusion of the Board should its decision be reversed with respect to the other two. In view of my conclusion on those, I do not find it necessary to consider whether the findings of the Board on the other two ought thus to be dealt with as separate issues that cannot be raised again without a cross-appeal or whether they ought to be treated in the same way as grounds of negligence which, although rejected in the Court below, can be urged again to support a conclusion founded on other imputations which have to be held ill‑founded. However, I wish to make it clear that I am in no way approving of the Board’s formalistic and stultifying view of its power to receive additional information. This, it seems to me, is completely at variance with the view taken by this Court and by

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courts of appeal generally, of the power to receive additional evidence as exemplified by decisions such as Brown v. Gentleman[3].

In my opinion, the only question that arises on the two grounds on which the deportation order now rests is whether we are bound by the decision of this Court in the Espaillat-Rodriguez case. Since that case was decided, there has been no change in the wording of s. 7(3) of the Immigration Act and there has also been no material change in the relevant provisions of the Immigration Regulations, bearing in mind that appellant’s case rests on the Regulations as they stood when she made her first application for permanent residence. She does not contend that she is entitled to admission under the amendments made in 1967. The only reason for which it is suggested that the Espaillat-Rodriguez case should no longer be considered binding is that it was decided on a certiorari while there is now a right of appeal to the Immigration Appeal Board with a further right of appeal to this Court by leave on questions of law.

In my view, this last-mentioned change in the law cannot make any difference. The Espaillat‑Rodriguez case was not decided on the basis of the limited scope of judicial review available on a certiorari. The decision was on the construction of s. 7(3) which was read as written and not with the addition of a mutatis mutandis. The essential part of the reasons of the majority is as follows (at pp. 7-8):

In its essential features the present appeal does not differ in any material respect from that in Ex parte Mannira. In both cases the appellant had entered Canada as a non-immigrant. As such, under s. 7(3) of the Act, he had no higher rights than a would-be immigrant presenting himself at a port of entry for admission as a permanent resident of Canada. In both cases appellant was not in possession of the immigrant visa or the medical certificate

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required under the regulations. Such regulations were passed under s. 61 which in its terms authorizes the Governor in Council to make regulations respecting “the terms, conditions and requirements with respect to the possession of… passports, visas or other documents pertaining to admission; …” Regulation 28(1) is such a regulation…

***

In the Immigration Act, Parliament has provided for the control of immigration to Canada and for the selection of prospective immigrants. The regulations passed under the authority of the Act clearly contemplate that the examination of persons seeking permanent admission to Canada in order to determine their suitability whether from a medical standpoint, an internal security point of view or otherwise, should be conducted abroad, in the homeland of the prospective immigrant. No doubt there are sound reasons for such a requirement.

The administrative responsibility of granting or refusing the immigrant visa, required by the regulations as a condition precedent to landing in Canada, has been entrusted to certain designated officers located outside Canada. Immigration officers at points of entry in Canada are given no authority to grant such a visa.

The Minister of Citizenship and Immigration is given wide discretionary powers under the Act and it may well be that he has power to waive the visa requirements. The record shows that in the present case he was not prepared to take such action.

These conclusions as to the construction and effect of s. 7(3) of the Act and of s. 28(1) of the Regulations, in no way depend on the circumstance that the proceedings were initiated by certiorari. They are an essential part of the reasoning leading to the conclusion that the deportation order was validly made on the grounds stated which are the same as in the instant case.

I would dismiss the appeal.

The judgment of Martland, Hall and Laskin JJ. was delivered by

LASKIN J.—I am of the opinion that the procedures employed in the present case in respect of the appellant’s application for permanent resi-

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dence in Canada were in conformity with the applicable prescriptions of the Immigration Act, R.S.C. 1952, c. 325, as amended, and that, accordingly, the objection to jurisdiction fails. On making an application for permanent residence in Canada while in the country as a non‑immigrant, the appellant took herself out of s. 19(1) (e)(vi) of the Act and came within s. 7(3) which required that she present herself for examination. The stipulation in s. 7(3) that she “shall for the purposes of the examination and all other purposes under this Act be deemed to be a person seeking admission to Canada” made s. 23 and its associated ensuing sections applicable.

Although s. 7(3) does not say so expressly, its incorporating reference to other provisions of the Act must be taken mutatis mutandis. Nothing turns on that part of s. 23 which speaks of the “examination of a person seeking to come into Canada”. These words cover both the non‑immigrant who seeks entry for a special or limited temporary purpose (as defined in s. 7(1) and (2)) and the immigrant who seeks admission for permanent residence (as defined in s. 2(i); and s. 23 as a whole bears this out.

The two grounds upon which the Immigration Appeal Board upheld the deportation order of May 7, 1969, against the appellant were (1) that she was not in possession of a valid and subsisting immigrant visa issued by a visa officer pursuant to s. 28(1) of the Immigration Regulations, Part 1; and (2) that she was not in possession of a medical certificate as prescribed by s. 29(1) of those Regulations. Leave to appeal to this Court was given on these two issues. For the reasons set out below, I have concluded that neither of these two grounds can properly be invoked against the appellant, and hence the deportation order cannot stand. Before turning to my reasons, I would emphasize, as did the Immigration Appeal Board, that the appellant is not subject to s. 34 of the Regulations which came into force on October 1, 1967. Her application for permanent residence was made by let-

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ter on May 16, 1967, and formally on June 17, 1967, and her position under the law must be considered accordingly.

Since s. 28 of the Regulations refers both to an immigrant visa (in subs. (1)) and to a nonimmigrant visa (in subs. (3)), according to whether a person seeks permanent or temporary entry, and since the visa in either case is obtainable only outside of Canada from an officer outside, I am reinforced in my view of the mutatis mutandis application of s. 7(3) of the Act and Regulations. The appellant had a valid and subsisting non-immigrant visa when she entered Canada. She was entitled to apply in Canada for permanent residence within the period of her temporary stay, and did so. Regulation 28(1) cannot be applied to her without destroying her status under s. 7(3) of the Act, and I would not give it that effect when it has subject-matter in its proper context.

Section 29(1) of the Regulations, so far as applicable here, reads as follows:

No immigrant shall be granted landing in Canada

(b) if he is not in possession of a medical certificate, in the form prescribed by the Minister, showing that he does not fall within one of the classes described in paragraph (a), (b), (c) or (s) of section 5 of the Act.

These last-mentioned paragraphs refer respectively to the following prohibited classes: mentally defective persons, diseased persons, physically defective persons and persons medically certified as abnormal.

The granting of landing in Canada, under the wording of s. 29(1), means (according to the definition of “landing” in s. 2(n) of the Act) the lawful admission of an immigrant to Canada for permanent residence. Although “admission” is defined as well (see s. 2(a)), and includes “entry into Canada” and “landing in Canada”, its application to the appellant in its sense of entry into Canada was spent when the appellant came in on a non-immigrant visa. This is manifest from the definition of “entry’ ’in s. 2(f). What must be determined, therefore, is whether s. 29(1)(b) is

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applicable to a person like the appellant who, having come within s. 7(3) of the Act, is “deemed to be a person seeking admission to Canada”.

Section 29(1)(b) applies to an “immigrant”, a term defined in s. 2(i) of the Act as “a person who seeks admission to Canada for permanent residence”. Although it comes to the same thing in the present case, a person who acquires status under s. 7(3) is not specifically designated an “immigrant”. It is understandable that there should be hesitation in classifying a person, already lawfully in Canada and who seeks to remain there, in the same way for all purposes as a person who is outside Canada but is seeking lawful entry for permanent residence.

Section 29(1) presents no difficulty of application if, like s. 28(1), it looks to original law-ful admission for permanent residence. That this is its general application is emphasized by s. 29(2) and (3) of the Regulations and by s. 30 as well. These provisions read as follows:

29. (2) Where at an examination of an immigrant under the Act the immigration officer has any doubt as to the physical or mental condition of such person, he may refer the immigrant for further medical examination by a medical officer.

(3) A transportation company that brings to Canada an immigrant who is required under this section to be in possession of a medical certificate and who is not in possession thereof and who is found to fall within the class of persons described in paragraph (a), (b), or (c) of section 5 of the Act is guilty of an offence.

30. The passing of any test or medical examination outside of Canada or the issue of a visa, letter of pre-examination or medical certificate as provided for in these Regulations is not conclusive of any matter that is relevant in determining the admissibility of any person to Canada.

In so far, therefore, as s. 29(1) (b) makes possession of a medical certificate obtainable outside Canada a condition of original admission of a

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person to Canada for permanent residence, it cannot apply to a person like the appellant.

I do not, however, exclude the mutatis mutandis application of s. 29(1)(b) to a person like the appellant who has come within s. 7(3). That, in my view, is indicated by s. 21 of the Act which provides that “where so required under the regulations, a person seeking admission to Canada or a person referred to in section 19 shall undergo a mental or physical examination or both by a medical officer”. The term “medical officer” is not defined in the Regulations, as is the term “visa officer”, but in the Act; s. 2 (p) thereof shows that a medical officer may be a person in Canada authorized to sign a medical certificate. It is, hence, within the contemplation of the Act and the Regulations that a person already lawfully in Canada may be required to produce a medical certificate when he seeks permanent residence.

In the present case, the record shows that the appellant completed Form 690, the form of application for permanent admission by a non-immigrant in Canada. She answered questions on that form relating, inter alia, to physical disabilities, mental illness, and tuberculosis. No objection was taken to the accuracy of the information so given which indicated no defect of health. Nowhere in the form is there any reference to an additional requirement of a medical certificate. She could have been asked to provide one, and to this extent s. 29(1) (b) of the Regulations could have application in furtherance of s. 21 of the Act. But her failure to include such a certificate with her application is not, in my opinion, a disqualifying consideration in the absence of a requirement under the form or a notice or request to provide such a certificate. Section 29(1) (b) cannot be used as a trap for a s. 7(3) applicant.

The Immigration Appeal Board came to its conclusion of affirmation of the deportation order in obedience to the judgment of this Court in

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Espaillat-Rodriguez v. The Queen[4]. That case was brought up through certiorari proceedings taken in Ontario. At the time it was initiated and finally determined in this Court, the only appeal against a deportation order was that prescribed by s. 31 of the Immigration Act, R.S.C. 1952, c. 325. Under that provision an appeal could be considered by an Immigration Appeal Board only if so directed by the Minister who was, none the less, also empowered to review the decision of such a Board. Beyond this, there was only the possibility of review by certiorari, limited by the privative terms of s. 39 of the Act. Section 39 was repealed when the Immigration Appeal Board was established.

In 1967, the Immigration Appeal Board Act was passed (see 1966-67 (Can.), c. 90) and brought into force by proclamation, with effect from November 13, 1967. It provided generous scope for appeals from deportation orders to the Board constituted under the Act, and, further, for more limited rights of appeal, by leave on questions of law and jurisdiction, to this Court. There is no doubt that a wider avenue for appeal (and review in that connection) exists under this Act than was available prior thereto. Espaillat-Rodriguez v. The Queen, supra, is to be viewed as a decision on the scope of review by certiorari when limited by a privative clause. The majority judgment in that case concluded as follows (at p. 9): “The order of deportation against appellant having been made under the authority of and in compliance with the provisions of the Immigration Act, under s. 39 a court has no jurisdiction to interfere with the order.” Cartwright J., as he then was, dissented, taking the position that the legal issues before the Court, which, as in the present case, involved the interpretation and application of ss. 28(1) and 29(1) of the Regulations to a s. 7(3) applicant for admission, were open to review on certiorari, despite the privative terms of the then s. 39 of the Act. That they are open in this case under the Immigration Appeal Board Act admits of no doubt; and this

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Court may therefore set aside orders of the Board where there has been an error of law.

The fact that the deportation proceedings in this case were initiated before the Immigration Appeal Board Act was enacted and became effective is answered by the transitional terms of that Act. Section 33(a) provided that it “applies in respect of any order of deportation made after the coming into force of this Act, and any order of deportation made before the coming into force of this Act that has not been executed, where no appeal therefrom has been taken under s. 31 of the Immigration Act.” There was no such appeal; rather the appeal provisions of the Immigration Appeal Board Act were invoked.

I would allow the appeal, set aside the decision of the Immigration Appeal Board and quash the deportation order.

Appeal allowed, ABBOTT and PIGEON JJ. dissenting.

Solicitor for the appellant: Julian Polika, Toronto.

Solicitor for the respondent: D.S. Maxwell, Ottawa.