Date: 20001110
Docket: IMM-3976-99
BETWEEN:
SUSANA OLOROSO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
- and
Docket: IMM-3977-99
BETWEEN:
JOFFREY OLOROSO, MARIEM OLOROSO
and LAILA OLOROSO
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.:
INTRODUCTION
[1] These reasons arise out of a single decision of the Appeal Division of the Immigration and Refugee Board (the "Appeal Division") wherein the Appeal Division determined that it did not have jurisdiction to hear the appeals of the applicants. The Appeal Division arrived at its determination on two grounds in relation to the applicant Susana Oloroso and on a single ground, common to all applicants, in the case of the other applicants. This distinction formed the basis for two separate applications for judicial review. The Appeal Division issued a single set of reasons in respect of all of the applicants. The applicants' applications for judicial review were heard together. Thus, this single set of reasons will apply in respect of both applications for judicial review. The decision of the Appeal Division is dated the 16th of November, 1999.
BACKGROUND
[2] Joffrey Oloroso (the "principal applicant") claimed in applications for visas that would have allowed all of the applicants to come to Canada as immigrants that he was the husband of Susana Oloroso. Mariem Oloroso and Laila Oloroso are the natural children of Joffrey Oloroso and Susana Oloroso.
[3] The applicants were issued visas in Riyadh, Saudi Arabia, on the 23rd of November, 1996. On the 30th of June, 1997, the applicants arrived at Winnipeg, Manitoba and sought landing in Canada. On examination at the port of entry, the principal applicant acknowledged to an immigration officer that he had another dependant child, John Ferdinand Oloroso, who had not previously been declared or examined for immigration to Canada. The principal applicant also disclosed that John Ferdinand was the child of he and Maria Elena Apostal. The immigration officer determined that the principal applicant and Ms. Apostal had been married and that their marriage had not been legally dissolved when the principal applicant purported to marry Susana Oloroso.
[4] In the result, on the 22nd of February, 1998, the immigration officer issued reports under paragraph 20(1)(a) of the Immigration Act1, (the "Act"), to the effect that it would be contrary to the Act to grant admission to Canada of the applicants because they were members of the inadmissible class of persons described in paragraph 19(2)(d) of the Act, that is to say, they were persons who cannot or do not fulfil or comply with all of the conditions or requirements of the Act and regulations made thereunder.
[5] In accordance with subsection 20(1) of the Act, the reports were made to a senior immigration officer. The senior immigration officer did not himself or herself make an exclusion order against the applicants, as he or she was entitled to do by virtue of subsection 23(4) or 23(4.01) of the Act, but rather referred the matter to inquiry before an adjudicator. The adjudicator, pursuant to subsection 32(5) of the Act, made exclusion orders against the applicants. It is appeals from those exclusion orders that were before the Appeal Division under paragraph 70(2)(b) of the Act. The relevant portions of subsection 70(2) of the Act read as follows:2
70.(2) Subject to subsections (3) to (5), 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) à (5), 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). [je souligne]
[6] The issue before the Appeal Division that it found determinative was whether or not the applicants were each in possession of a "valid immigrant visa". The Appeal Division determined that they were not and in the result, found it had no jurisdiction to entertain the appeals. The Appeal Division made a second finding in respect of the applicant Susana Oloroso, that being, that Ms. Oloroso obtained her immigrant visa as the spouse of the principal applicant when she was not in fact the spouse of the principal applicant by reason of the principal applicant's pre-existing and undissolved marriage. In the result, the Appeal Division determined that the applicant Susana Oloroso was not a member of the family class and that, for this additional reason, it had no jurisdiction in respect of the appeal of Susana Oloroso.
THE ISSUES
[7] The principal issue before me was whether or not the Appeal Division erred in determining that it lacked jurisdiction to hear the applicants' appeals by reason of the fact that they were not in possession of valid immigrant visas at the relevant time. A secondary issue before me was whether or not the Appeal Division erred in the further determination regarding Susana Oloroso that she was not a member of the family class and that therefore, on that ground as well, the Appeal Division lacked jurisdiction with respect to her appeal.
RELEVANT CASE LAW
[8] There has been relatively extensive case law from both divisions of this Court on the question of the jurisdiction of the Appeal Division where the validity of a "returning resident permit" is in doubt, in the case of appeals under subsection 70(1) of the Act and where the validity of an immigrant visa is in doubt under subsection 70(2) of the Act.3
[9] In Minister of Employment and Immigration v. De DeCaro4, in a majority decision, the Court of Appeal determined that a decision of the Appeal Division granting landing to a person who held a valid conditional visa, and whose spouse died subsequent to the issuance of the conditional visa, thus rendering performance of the condition attached to the visa impossible, should be set aside. It did not, however, reach that conclusion on the basis that the person concerned, when she appeared at a port of entry, had to be in possession of a "valid" visa. For the majority, Mr. Justice Pratte wrote:
| In order to arrive at this conclusion [that the decision of the Appeal Division must be set aside] it is not necessary to say, as counsel for the appellant invited the Court to do, that an immigrant or visitor appearing at a port of entry must be in possession of a valid visa and that a visa ceases to be valid once its holder no longer meets the requirements for its issue. We need only refer to the definition of the phrase "accompanying dependant" given in s. 2(1) to see that the visa issued to a person in this class is of a very special type which is issued solely to enable its holder to accompany or follow another person to Canada. In my opinion, the holder of such a visa who applies for admission to the country without "the other person" accompanying or preceding him into Canada does not meet the requirements of s. 9(1) of the Act any more than a holder of a visitor's visa who applies for admission as an immigrant does. Both did obtain a visa, but in each case the visa was conditional and met the requirements of s. 9 only if the condition imposed was fulfilled when the holder of the visa applied for admission to Canada. |
[10] With great respect, I find the foregoing analysis indistinguishable from an analysis leading to a conclusion that the visa of the person there concerned no longer remained a "valid" visa by reason of an event arising after the issuance of the visa.
[11] Mr. Justice Marceau, in separate reasons, reached a different conclusion. His reasoning would appear to have subsequently come into favour with the Court of Appeal as will be seen later in these reasons.
[12] In Minister of Employment and Immigration v. Wong5, the Court of Appeal again considered the issue of an appeal based upon a "valid" visa. There, the Appeal Division had found that it had jurisdiction to hear an appeal under paragraph 70(2)(b) of the Act, since at the time of landing, the person concerned was in possession of a valid immigrant visa.
[13] Mr. Justice Macguigan, for the Court, wrote at paragraphs [3] and [4]:
| The only issue before this Court was as to the Board's jurisdiction to hear the appeal, which turned on the question of whether the dependant daughter was in possession of a valid immigrant visa. Our consideration of this issue was greatly hampered by the fact that, although duly notified of this hearing, the respondent failed to appear either in person or by counsel, and so no arguments were made in answer to the appellant's contentions. |
| Our attention was drawn by the appellant to the recent majority decision of this Court in Le ministère de l'emploi et de l'immigration c. DeCaro [sic] ... . Whatever should be the result where an element upon which the issuance of a visa is based subsequently ceases to exist, we are at least satisfied that, where, as here, the principal reason for the issuance of a visa ceased to exist before its issuance, such a visa cannot be said to be "a valid immigrant visa". [emphasis in the original, citation omitted] |
[14] The facts that were before the Court of Appeal in Wong were closer to those in this matter than were the facts in De DeCaro in that, in Wong as here, the principal reason, or at least a principal reason, for the issuance of the visas ceased to exist before their issuance. That being said, the concern expressed by Mr. Justice Macguigan regarding the absence of contrary arguments to those advanced on behalf of the Minister, here the respondent, "...greatly hampered..." the Court in reaching its decision suggests, at least to this judge, that the issue warranted further consideration.
[15] In Canada (Minister of Citizenship and Immigration) v. Hundal6, Mr. Justice Rothstein, then of the Trial Division, considered a judicial review application where the issue was the jurisdiction of the Appeal Division under paragraph 70(2)(b) of the Act, when the validity of an immigrant visa was in question. Mr. Justice Rothstein wrote at pages 40 and 41:
| It is, of course, still necessary to deal with dicta of the Federal Court of Appeal on the issue of visa validity which is binding on me. It appear there are four exceptions to the general principle that once a visa is issued it remains valid. |
| The first I term the De Decaro exception. This may be characterized as the situation in which there is a frustration or impossibility of performance of a condition on which the visa was issued. As in the case of contracts, and I acknowledge that it is always risky to draw analogies, such a "frustration" exception to the validity of a visa is narrow. It applies only when it is obvious that a supervening act makes the satisfaction of the condition of the visa impossible. As in De Decaro, where the person upon whose continued existence dependants' visas have been granted dies, the condition of the dependants' visas obviously fails. In such case the visa becomes ipso facto invalid upon such an event. |
| But it should be made clear that in the vast majority of cases, such as many of those involving medical conditions, loss of units of assessment, loss of sponsorship and the like, a change of circumstances is not irrevocable. Indeed, I think Pratte, J.A., in De Decaro specifically did not suggest that any time a condition of a visa was not met, this automatically resulted in it becoming invalid ... . As long as it cannot be said that the condition of a visa becomes impossible to meet upon the happening of a supervening event, the visa will remain valid. Of course, the person may still not be granted landing because of the change of circumstances, but this does not affect the validity of a visa. Refusal to grant landing will be as a result of the examination by the immigration officer at the port of entry. |
| The second exception is where there is a failure to meet a condition of the granting of the visa itself before the visa is issued. This is what occurred in Minister of Employment and Immigration v. Wong ... |
| If essential components to the issuance of a visa are not present before the visa is issued, the visa that is issued will not be valid. It is void ab initio. This is the Wong exception. [emphasis added] |
[16] The third and fourth exceptions described by Mr. Justice Rothstein are not relevant for the purpose of this matter.
[17] Mr. Justice Rothstein's analysis was affirmed by the Court of Appeal7. For the Court, Mr. Justice Strayer expressed the following view :
| We are all of the view that this appeal should be dismissed. We are in accord with the analysis by the learned motions judge of the jurisprudence and with his general principle that, subject to the exceptions he identifies, "once a visa has been issued, it remains valid." |
[18] The Court of Appeal declined to say whether the De DeCaro decision should be interpreted "broadly".
[19] In McLeod v. Canada (The Minister of Citizenship and Immigration)8, the Court of Appeal reconsidered its decision in De DeCaro. The Court had before it a decision of the Appeal Division in which it held that it had before it a valid immigrant visa.
[20] Mr. Justice Strayer, for the Court, wrote at paragraph 16 and following:
| As both counsel have agreed before us, the scheme of the Act is such that the sanction of invalidity is nowhere prescribed and in fact is unnecessary for the exclusion of unqualified immigrants. Marceau J.A. in his dissent in De Decaro could find no textual support for a visa being rendered invalid by a change of circumstances. Instead, he pointed out that the immigration process is in two stages. First a visa officer may issue a visa to an applicant if he forms the conclusion that the applicant is admissible. Secondly, the visa holder must present himself at a Canadian port of entry, at which time an immigration officer acting under subsection 12(1)... of the Act must determine if he is admissible. The applicant is obliged, inter alia , to satisfy the officer in accordance with section 12 of the Regulations that he still meets the requirements of the Act including, obviously, whether the visa he holds is still sufficient, in the circumstances then obtaining, to authorize his admission. Thus there is no need to imply from the language of the Act a concept of visa invalidation through change of circumstance because the second stage process is designed to deal with that problem. |
| Rothstein J. in Hundal built on this analysis as a rationale for narrowing the application of De DeCaro. To it he added the observation, based on submissions by the respondent's counsel in that case, that if every change of condition after issue of a visa renders it invalid then there could be little or no right of appeal under paragraph 70(2)(b) for visa-holders refused admission when presenting themselves at the border, as by definition they would not be holders of valid visas. To the extent that admissions are refused at ports of entry because of changed circumstances since the issue of a visa, this would appear to be so and further supports the need for reconsideration of the jurisprudence. |
| I have concluded that there is no adequate basis for deducing from the language of the Act a sanction of invalidity based on changes of circumstances after the issue of a visa. The analysis of Marceau J. A. and of Rothstein J. have further led me to conclude that no such sanction need be implied as it is unnecessary to achieve the purposes of the Act. [emphasis added] |
[21] The foregoing is, of course, not directly applicable to the facts of this case which is closer to the "Wong exception" as described by Justice Rothstein in Hundal, supra. The foregoing does, however, raise the issue, which was argued before me, as to whether the "Wong exception" is now itself suspect, particularly if the analysis of Mr. Justice Marceau in his dissent in De DeCaro can be read broadly enough to encompass a fact situation such as that in Wong and in this matter.
[22] Finally, I turn to the decision of Mr. Justice Noël, then of the Trial Division of this Court. In Canada (Minister of Citizenship and Immigration) v. Seneca9, Mr. Justice Noël had before him a decision of the Appeal Division in which it dismissed a preliminary motion of counsel for the Minister to dismiss the appeal that was before it for lack of jurisdiction. The facts, albeit not the issue, were not dissimilar to the facts of this matter. The respondent, as here in the case of the principal applicant, a citizen of the Philippines, applied for permanent residence as a member of the family class. His application was sponsored by his Canadian fiancee. In his application, he gave false information concerning a prior marriage and the number of children he had. The respondent was issued an immigrant visa on condition that he marry his fiancee within ninety (90) days of being landed in Canada, which he purported to do. However, it was subsequently discovered that his previous marriage had never been dissolved and the respondent was convicted of bigamy. On those facts, following a closely reasoned analysis, Mr. Justice Noël dismissed the judicial review before him and confirmed the jurisdiction of the Appeal Division to hear the appeal that was before it. He wrote at paragraph [34]:
| ... In all logic, the status of a person seeking to appeal an adjudicator's removal order cannot be invoked to deny the appeal right conferred by paragraph 70(1)(a) where any conclusion drawn with respect to the appellant's status is necessarily a consequence of a finding of fact or law made by the adjudicator. The suggestion that the person concerned has no status because he or she was not "lawfully" admitted in the first place cannot take away the right of appeal on that very question. |
[23] Mr. Justice Noël's decision was affirmed in the Court of Appeal on the basis of very brief reasons10. Mr. Justice McDonald, for the Court, wrote:
| The Motions Judge reviewed in some detail the case law and the relevant legislation. We are in substantial agreement with his analysis of the law and the legislative intent behind the relevant sections of the Immigration Act, and the conclusions he reached. |
ANALYSIS
[24] Against the foregoing summary of recent case law, counsel for the applicant urged that a change in legal interpretation at the level of the Court of Appeal had taken place, particularly on the basis of its decisions in McLeod and Seneca, and with reference to the minority reasons of Mr. Justice Marceau in De DeCaro, as referred to by Mr. Justice Strayer in McLeod. Specifically, he urged that the "Wong exception" referred to by Mr. Justice Rothstein in Hundal, and as propounded by the Court of Appeal is now suspect and might very well have been overturned by the Federal Court of Appeal in McLeod, if it had been appropriate to do so on the facts of that matter and the argument that was made before the Court.
[25] I am satisfied that counsel for the applicant presents a strong case.
[26] I turn then to the minority reasons of Mr. Justice Marceau in De DeCaro. Mr. Justice Marceau wrote at page 419:
| The Act and the Regulations do not seem to me to make use of either the concept of a valid visa which can become invalid in certain circumstances or the concept of a conditional visa which, to be effective, requires the condition actually be met. |
| I note first that the only places where there is any reference to a "valid visa" in the Act are in subsections 70(2)..., 90(2), 94.1... and 94.2... and finally in paragraph 114(1)(q). Everywhere in each of these provisions, without exception, the word is used in the phrase "valid and subsisting", which undoubtedly gives it the sense of "not expired"; a visa whose term has not yet expired. The situation could hardly be otherwise, given the context: apart from the first provision, all the others - which are found in Part V on the obligations of transportation companies, Part VI on offences and punishment and Part VII which contains general provisions - are designed to penalize a transportation company which brings a foreign national to Canada without having a "valid and subsisting" visa and anyone who otherwise induces or abets the coming into Canada of such a person: the carrier or the instigator could not be required to do more than check the date of expiry of the visa shown. As regards the first provision, that in subsection 70(2), there too the wording could not refer to anything but a delay in becoming effective, since it is used in cases which have given rise to reports under subsection 20(1), namely cases where substantive conditions for granting the visa have not been observed. Accordingly, neither the Act nor the Regulations, in which the word "valid" is encountered still more rarely ..., speaks of a valid visa in any sense other than that of an unexpired visa. [emphasis in the original, citations omitted] |
[27] I note that in subsection 70(2) of the Act, quoted earlier in these reasons, the reference is to a "valid immigrant visa" and not a "valid and subsisting immigrant visa" as the foregoing quotation might imply.
[28] Mr. Justice Marceau continued at pages 421 and 422:
| As we know, issuing an immigrant visa is not the granting of landing. Such issuance simply means that the visa officer has formed the opinion that the applicant meets the requirements of the Act and Regulations for admission to Canada. The granting of a visa is undoubtedly not simply an academic exercise with no practical value or effect. The visa is evidence of a conclusion by an immigration officer, whose function is to determine from outside Canada whether applicants are admissible, and that conclusion will usually be accepted as such by his colleague at the port of entry. However, the rule is still that a foreign national arriving in Canada with a view to residing here must satisfy the immigration officer of his admissibility at the port of entry ... . This is the context in which section 12 of the Regulations applies. First, it imposes on an immigrant a duty to disclose any change in the facts which may have influenced the issuing of the visa which he holds, and if there has been such a change, it requires the immigrant to meet new requirements. The visa is not void, but as we know the visa in itself does not confer a right of entry; it is the new requirements of section 12 of the Regulations that must be met. [citation omitted] |
[29] Counsel for the applicant essentially adopted the reasoning of Mr. Justice Marceau, as quoted above, and expanded on it in written reply submissions provided after the hearing and as contemplated at the hearing itself. Counsel for the applicant in turn replied to those written reply submissions.
[30] None of the foregoing excerpts from the reasons of Mr. Justice Marceau appear to me to compel a conclusion that the adoption in McLeod of his reasoning in relation to the "De DeCaro exception" should logically be extended to circumstances, such as here, falling within the "Wong exception". However, the endorsement by the Court of Appeal of the reasoning of Mr. Justice Noël in Seneca would appear to me to extend to an endorsement of the brief passage from his reasons quoted earlier which I will repeat here for ease of reference:
| ...In all logic, the status of a person seeking to appeal an adjudicator's removal order cannot be invoked to deny the appeal right conferred by paragraph 70(1)(a) where any conclusion drawn with respect to the appellant's status is necessarily a consequence of a finding of fact or law made by the adjudicator. The suggestion that the person concerned has no status because he or she was not "lawfully" admitted in the first place cannot take away the right of appeal on that very question. |
[31] I am satisfied that the same can be said by analogy on the facts of this matter and to an appeal under paragraph 70(2)(b) of the Act. In all logic, the marital status of a person seeking to appeal an adjudicator's removal order should not be invoked to deny the appeal right conferred by paragraph 70(2)(b) where any conclusion drawn with respect to the appellant's marital status is necessarily a consequence of a finding of fact or law made by the adjudicator. The suggestion that the applicants herein have no status to appeal because, in the case of the principal applicant, he was previously married and that previous marriage had not been dissolved and, in the case of the other applicants, by reason of the principal applicant's undissolved previous marriage, they are not his lawful dependents, and that therefore their visas were improperly issued to them and are invalid, should not, in all logic, take away the right of appeal to the Appeal Division on that very question.
CONCLUSION
[32] Based upon the analogy that I find to be apt to the reasoning of Mr. Justice Noël in Seneca, as endorsed by the Court of Appeal, and on the evolution that I perceive in the reasoning of the Court of Appeal since De DeCaro, I conclude that this application for judicial review, as it relates to the Appeal Division's jurisdiction, should be allowed. The decision of the Appeal Division that it lacked jurisdiction to hear the applicants' appeals under subsection 70(2) of the Act on the ground that they were not in possession of valid immigrant visas at the time that a report with respect to them was made by an immigration officer pursuant to paragraph 20(1)(a) of the Act will be set aside and, on that ground alone, the matter, as it relates to all applicants other than Susana Oloroso, will be returned to the Immigration and Refugee Board for hearing and determination of the applicants' appeals.
[33] The Appeal Division's second finding in relation to Susana Oloroso, referred to in paragraph [7] of these reasons should, I am satisfied, fall with the determination that its finding as to jurisdiction must be set aside. Thus, the decision with respect to Susana Oloroso will also be set aside and her appeal will also be referred back to the Immigration and Refugee Board.
CERTIFICATION OF A QUESTION
[34] Counsel for the applicants recommended certification of the following question:
| Does the phrase "valid immigrant visa" in Immigration Act section 70(2)(b) mean only a visa as defined in section 2(1) of the Immigration Act, that is to say a document issued or stamp impression made on a document by a visa officer, which, at the time the visa holder sought landing, had not expired? Or does "valid immigrant visa" mean that, in addition, all essential conditions were present for the visa at the time of its issuance? |
Counsel for the respondent recommended certification of the following question:
| Can an immigrant visa issued as a result of misrepresentations be considered a "valid immigrant visa" pursuant to paragraph 70(2)(b) of the Immigration Act? |
[35] In my view, the question submitted by counsel for the respondent, while very similar in substance to that submitted by counsel for the applicant, suffers from a fundamental difficulty identified by Mr. Justice Noël in Seneca. It is only, on the facts of this matter, the view of an adjudicator that the visas here at issue were issued "...as a result of misrepresentations". That is precisely the issue that the applicants seek to appeal before the Appeal Division. I will not certify a question in the form proposed by counsel for the respondent. By contrast, I am satisfied that, with minor modifications to restrict the question to the facts of this matter and to reflect this judge's stylistic preferences, the question proposed on behalf of the applicants is a serious question of general importance and one that would be determinative, at least with respect to three of the applicants, on an appeal of my decision herein. A question in essentially the form proposed by counsel for the applicant will be certified.
_________________________
J. F.C.C.
Ottawa, Ontario
November 10, 2000
__________________
1 R.S.C. 1985, c. I-2.
2 By virtue of the definition "removal order" in subsection 2(1) of the Act , that term includes an exclusion order.
3 Subsections 70(1) of the Act reads as follows:
| 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. [emphasis added] |
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.
[je souligne] |
4 [1993] 2 F.C. 408.
5 (1993), 153 N.R. 237 (F.C.A.).
6 [1995] 3 F.C. 32 (T.D.).
7 (1996), 36 Imm. L.R. (2d) 153.
8 [1999] 1 F.C. 257.
9 [1998] 3 F.C. 494.
10 (1999), 247 N.R. 397.
Email this Content