Date: 19980707
Docket: IMM-3545-97
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
JUDITH GARANILLA SANCIO CHICO
Respondent
REASONS FOR ORDER
MacKAY J.
[1] By this application for judicial review, the applicant Minister seeks an order setting aside the decision of the Immigration Appeal Division (the "IAD") dated August 6, 1997, which allowed the respondent's appeal from, and quashed, a deportation order issued to her by an adjudication officer. The IAD decision was rendered after hearing the respondent's appeal, filed pursuant to s.70 of the Immigration Act, R.S.C. 1985, c. I-2, as amended.
Background
[2] The respondent, a citizen of the Philippines, submitted an application for permanent residence in Canada on December 19, 1989 at the Canadian Embassy in Manila. She was sponsored by her mother, a Canadian citizen. At that time, the respondent indicated that her marital status was "unmarried (never married)" and that she had no children.
[3] The respondent indicated, in signing her application, that she agreed to advise Canadian immigration authorities if her marital status changed or if she had children prior to her departure for Canada. By signing the form, the respondent also indicated that she understood that any false statement or concealment of a material fact might result in her exclusion from Canada or, if admitted to Canada for permanent residence, prosecution and/or removal from Canada.
[4] Subsequently, on March 5, 1990, the applicant was married, and on June 26, 1990, she had a child. These events were not reported to Canadian immigration authorities, either before a visa was issued to her, or on her arrival and landing in Canada.
[5] On July 4, 1991, an immigrant visa was issued to the respondent as a dependent member of the family class as a "never married daughter" in reliance upon the information provided in her application form. On September 7, 1991, the respondent was granted landing at Vancouver International Airport. There, she signed an "Immigrant Visa and Record of Landing" certifying that she had no dependents and that her marital status was "single".
[6] Two years later, in 1993, the respondent provided an undertaking of assistance on behalf of her husband and child. The husband's application for permanent residence contained information regarding his marriage and the birth of their child in 1990.
[7] The existence of this relationship was brought to the attention of the immigration authorities. Thereafter, a report was made under paragraph 27(1)(e) of the Immigration Act, R.S.C. 1985, c.I-2, as amended (the "Act") alleging that the respondent was a person who had been granted landing "by reason of...any fraudulent or improper means or misrepresentation of a material fact whether exercised or made by that person or any other person". Sub-section 27(1) is reserved for permanent residents, unlike reports under s-s.27(2), which applies to visitors and other persons. The report indicated that the respondent had obtained landing by fraudulent and improper means insofar as, in applying for her visa and at her landing, she failed to advise immigration authorities that she had a family. That failure, it is said, deprived the officers of the opportunity to determine whether the grant to the respondent of permanent residence status was consistent with the Act and its regulations.
[8] On June 5, 1996, an immigration adjudicator found the respondent to be a person as described in paragraph 27(1)(e) and issued a deportation order against the respondent. This finding was appealed by the respondent to the Appeal Division, pursuant to s.70 of the Act. Amongst the issues dealt with by IAD was whether the tribunal had jurisdiction to hear the appeal, which it was submitted for the Minister it did not, given that the respondent was not a person who had been granted lawful permission to enter Canada and to establish permanent residence. The misrepresentations made by the respondent were said to void her visa. The Appeal Division found that it had jurisdiction to hear the appeal. It allowed the appeal and quashed the deportation order.
[9] The provisions of the Act here in issue are
| 27. (1) An immigration officer or a peace officer shall forward a written report to the Deputy Minister setting out the details of any information in the possession of the immigration officer or peace officer indicating that a permanent resident is a person who
...
| (e) 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; |
...
70. (1) Subject to subsections (4) and (5), where a removal order or conditional removal order is made against a permanent resident or against a person lawfully in possession of a valid returning resident permit issued to that person pursuant to the regulations, that person may appeal to the Appeal Division on either or both of the following grounds, namely,
| (a) on any ground of appeal that involves a question of law or fact, or mixed law and fact; and |
| (b) on the ground that, having regard to all the circumstances of the case, the person should not be removed from Canada. |
...
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27. (1) L'agent d'immigration ou l'agent de la paix doit faire part au sous-ministre, dans un rapport écrit et circonstancié, de renseignements concernant un résident permanent et indiquant que celui-ci, selon le cas:
...
| (e) a obtenu le droit d'établissement soit sur la foi d'un passeport, visa - ou autre document relatif à son admission - faux ou obtenu irrégulièrement, soit par des moyens frauduleux ou irréguliers ou encore par suite d'une fausse indication sur un fait important, même si ces moyens ou déclarations sont le fait d'un tiers; |
70. (1) Sous réserve des paragraphes (4) et (5), les résidents permanents et les titulaires de permis de retour en cours de validité et conformes aux règlements peuvent faire appel devant la section d'appel d'une mesure de renvoi ou de renvoi conditionnel en invoquant les moyens suivants:
| a) question de droit, de fait ou mixte; |
| b) le fait que, eu égard aux circonstances particulières de l'espèce, ils ne devraient pas être renvoyés du Canada. |
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Issue
[10] For the Minister, it is urged that the Appeal Division erred in law in assuming jurisdiction to hear and decide the respondent's appeal of her deportation order.
Arguments of the parties
[11] The applicant submits that under s-s.9(2), the applicant for a visa is obliged to answer truthfully all questions put to that person. Similarly, s-s.12(4) requires a person appearing before an immigration officer at a port of entry to answer all questions put to that person. Section 12 of the regulations obliges a visa holder to disclose to an immigration officer at the port of entry all facts relevant to the issuance of the visa that have changed since that issuance or which were not disclosed prior to the issuance.
[12] Under s-s.2(1), a permanent resident, it is urged, is a person who has been granted landing, with landing being defined as "lawful permission to establish permanent residence in Canada". It is submitted that the respondent's landing was never lawful in light of the material misrepresentations, outstanding at the time her visa was granted, concerning the respondent's marital status and lack of dependents. As a married person she no longer qualified within the statutory definition of "dependent". As a result, she did not comply with all the requirements of the Act or regulations. As the respondent was never lawfully landed, it is urged she is not a permanent resident who can avail herself of the right to appeal under s-s.70(1) of the Act. Support for this view is said to be found in MCI v. Nemsila.1 I note that Nemsila was concerned with the meaning of "domicile" within s.123 of the Act and of "lawful admission" to Canada for purposes of acquiring domicile under legislation prevailing until 1978.
[13] The applicant further submits that the visa issued to the respondent was void ab initio, given that the basis on which it was issued did not exist at the time it was issued. The respondent finds support for this view in MEI v. Wong2, MCI v. Hundal3, Braun v. MEI4, MCI v. Yu5, and MCI v. Nguyen.6 The applicant also relies upon Peralta v Canada7 and Jaber v. MCI8, and seeks to distinguish Tran v. MCI9 and MCI v. Seneca.10
[14] I note that for the respondent it was urged that permanent resident status is voidable, not void ab initio in the circumstances of this case. It is urged that implicit support for this view is found in the decision of the Court of Appeal in MCI v. Gudino11, where the Court of Appeal returned a matter to be re-determined by the IAB, despite the fact that the respondent in that matter was a member of a prohibited class at the time of his admission to Canada. Moreover there are said to be numerous Immigration Appeal Board and Immigration Appeal Division cases in which the tribunal heard appeals where the person concerned had obtained landing in Canada through material misrepresentation, fraud or deceit.
Analysis
[15] With respect, in my view this application should be dismissed.
[16] A key issue in this case, in my opinion, is whether a finding that the immigrant is a person as described in paragraph 27(1)(e) voids the visa approving entry for permanent residence, thus precluding the immigrant from exercising appeal rights to the Appeal Division. With respect, I find persuasive the reasoning of Mr. Justice Noël in Seneca. Admittedly decisions of the Trial Division appear to conflict, but Noël J. in Seneca seeks to rationalize that conflict and to deal with facts essentially similar to those in this case, in light of the scheme of the Act.
[17] In Seneca, Noël J. stated:
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As indicated earlier, the respondent in this proceeding was directed to Inquiry and found by the adjudicator to be a person described in paragraph 27(1)(e) of the Act. Paragraph 27(1)(e) states: |
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27. (1) An immigration officer or a peace officer shall forward a written report to the Deputy Minister setting out the details of any information in the possession of the immigration officer or peace officer indicating that a permanent resident is a person who |
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(e) 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 of by any other person, |
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A person directed to Inquiry pursuant to subsection 27(1) is thus brought before the adjudicator on the basis that he is, in law, a permanent resident. That, of course is a condition precedent to the jurisdiction of the adjudicator under that section and both parties in this proceeding take the position that the adjudicator had jurisdiction to deal with the respondent under that section. |
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[18] The applicant, in my view, cannot accept the validity of that determination for the purposes of approving of the removal order while challenging its validity in the context of proceedings before the IAD to appeal the removal order. In other words, if the visa was void ab initio, then, by definition, the outstanding removal order against the respondent was not issued in accord with the law, issuing as it did under s-s.27(1), rather than s-s.27(2), which relates to persons other than permanent residents.
[19] With respect, I agree with Seneca and for the reasons there set out I would uphold the decision of the IAD that it had jurisdiction to hear the appeal of the respondent. That is the nub of the issue before the Court, whether the Appeal Division acting pursuant to s-s.70(1) had jurisdiction to hear the appeal of a person determined to be one within s-s.27(1)(e) of the Act. I see nothing in the wording of s.27(1)(e) or anywhere else in the Act, indicating that that paragraph should be treated differently than other paragraphs in s-s.27(1). It cannot be concluded that violation of any one of these paragraphs would result in the visa being void ab initio. If a violation of any of the paragraphs of s.27(1) rendered a visa void ab initio, then appeal rights under s-s.70(1) would have no meaning.
Conclusion
[20] For the reasons set out, I dismiss the application for judicial review.
[21] At the conclusion of the hearing, while reserving judgment, I invited counsel to propose a question for consideration as a serious question of general importance pursuant to s-s.83(1). Counsel for the Minister subsequently proposed the following question.
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Does the IAD have jurisdiction under subsection 70(1) to entertain the appeal of a person who was landed in reliance on a material misrepresentation made by that person? In particular, has a person who has been landed on the basis of a material misrepresentation been given "lawful permission to establish herself in Canada" so as to be a "permanent resident" who can appeal under subsection 70(1) of the Immigration Act? |
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[22] In my opinion, the question as stated concerns issues wider than those raised by the facts of this case. The question raised by the facts here seems to me to be similar to that which Noël J. refers to as certified in the Reasons in Seneca, namely:
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Where an adjudicator has found that a person was granted landing by means of an improperly obtained visa pursuant to paragraph 27(1)(e) of the Act and a removal order has been issued against that person as a result, is the person entitled to appeal that order to the Appeal Division by virtue of subsection 70(1)? |
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[23] An order goes dismissing the application of the Minister and certifying the question as set out in the preceding paragraph.
W. Andrew MacKay
Judge
OTTAWA, Ontario
July 7, 1998
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1 (1996), 118 F.T.R. 310.
2 (1993), 153 N.R. 237 (F.C.A.).
3 (1995), 96 F.T.R. 306 (F.C.T.D.), affirmed (1996), 36 Imm. L.R. (2d) 153 (F.C.A.).
4 [1995] 3 F.C. 231 (F.C.T.D.).
5 (1997), 132 F.T.R. 226.
6 (January 23, 1998), Court File No. IMM-3986-96, [1998] F.C.J. No. 78.
7 (1996), 123 F.T.R. 153.
8 (December 15, 1997), Court File No. IMM-4908-96 (F.C.T.D.).
9 (1997), 128 F.T.R. 158 (F.C.T.D.).
10 (April 6, 1998), Court File No. IMM-2836-97, [1998] F.C.J. No. 504 (F.C.T.D.).
11 [1982] 2 F.C. 40 (F.C.A.).
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