Date: 19991129
Docket: IMM-6715-98
OTTAWA, ONTARIO, THIS 29TH DAY OF NOVEMBER, 1999.
BETWEEN:
MINISTER OF CITIZENSHIP AND IMMIGRATION
- and -
LASCELLES NOEL POWNALL
Respondent
ORDER
The application for judicial review of the decision of the Immigration Appeal Division is dismissed.
The following question is certified pursuant to subsection 83(1):
| Is a person who obtained a visa and was granted landed status by fraudulently misrepresenting his or her identity thereby not in possession of "lawful permission to establish permanent residence in Canada" and thus not a "permanent resident" within the meaning of subsection 70(1) of the Immigration Act ? |
J.F.C.C.
Date: 19991129
Docket: IMM-6715-98
BETWEEN:
MINISTER OF CITIZENSHIP AND IMMIGRATION
- and -
LASCELLES NOEL POWNALL
Respondent
REASONS FOR ORDER
EVANS J.
[1] The Federal Court of Appeal has recently held that a person who obtains a visa or is granted landed status by misrepresenting a material fact is not thereby disqualified from being a permanent resident in Canada, and is thus eligible to appeal to the Immigration Appeal Division of the Immigration and Refugee Board against a deportation order: Canada (Minister of Citizenship and Immigration) v. Seneca (A-261-98; September 29, 1999) (F.C.A.); Jaber v. Canada (Minister of Citizenship and Immigration) (A-917-97; September 30, 1999) (F.C.A.).
[2] The respondent in this case, Linval Keith Edwards, a citizen of Jamaica, was granted landed status in Canada by fraudulently misrepresenting himself to be his brother, Lascelles Noel Pownall. The issue raised is whether a misrepresentation of identity is different from a misrepresentation of other material facts. If it is, then Mr. Edwards is not a permanent resident and the Immigration Appeal Division had no jurisdiction to entertain his appeal and, "having regard to all the circumstances of the case", to stay the execution of the deportation order.
[3] In this application for judicial review the Minister of Citizenship and Immigration seeks an order setting aside the Board"s decision on the ground that it erred in law in concluding that Mr. Pownall was a "permanent resident" with a right of appeal under subsection 70(1) of the Immigration Act , R.S.C.1985, c. I-2, and thus exceeded its jurisdiction in granting a stay.
[4] The respondent first came to Canada in 1979 or 1980. Under the alias of Frank Sergi he was convicted in 1980 of minor property offences, and in 1981 of possession of marijuana. He was ordered deported and left Canada in January 1982.
[5] In 1983 Mr. Edwards returned to Canada illegally without the consent of the Minister, and used another alias to obtain employment. In 1986 he married Abalone Petersen in Toronto and she applied to sponsor him for permanent residence under the name of Linval Edwards. However, their marriage broke up and in June 1990 Ms. Petersen withdrew her sponsorship.
[6] In October 1991 the respondent was ordered deported for a second time and left Canada in November 1991.
[7] However, before his deportation the respondent had entered a relationship with Claudia Williams by whom he had a son. Following his removal to Jamaica he received a letter from Ms. Williams indicating that she was ill and unable to care for their child. Realizing that, in view of his immigration history, he would not be permitted to return to Canada under his own name, Mr. Edwards obtained a Jamaican passport and a Canadian visitor"s visa by adopting the identity of his younger brother, Lascelles Noel Pownall. Mr. Edwards entered Canada in July 1992 under the name of Pownall.
[8] In April 1993, Mr. Edwards and Ms. Williams were married and in the next year Ms. Williams sponsored the respondent"s application to be granted landed status from within Canada under his assumed name of Lascelles Noel Pownall. The respondent also completed an application for landing in his assumed name and falsely answered questions on the form, denying that he had a criminal record and that he had been ordered to leave Canada. The respondent"s application for permanent residence was approved in October 1995.
[9] Meanwhile, Mr. Edwards and Ms. Williams had a second child and Mr. Edwards worked to support his family. However, in June 1997 the respondent"s fingerprints were submitted by his employer to the police as part of a routine criminality check. It was determined that the respondent"s fingerprints matched those of Linval Edwards.
[10] An immigration inquiry was held in July 1997 and the adjudicator found the respondent to be a person described in paragraph 27(1)(e) of the Immigration Act in that he had been granted landing by reason of a misrepresentation of material facts. The respondent was ordered deported from Canada under subsection 32(2) and he appealed to the Immigration Appeal Division under subsection 70(1) of the Act.
| C. THE APPEAL DIVISION"S DECISION |
[11] The Minister brought a preliminary motion to dismiss the appeal for want of jurisdiction on the ground that subsection 70(1) of the Immigration Act provides that, where a removal order is made against a permanent resident, the person concerned may appeal to the Appeal Division. Subsection 2(1) defines a permanent resident as one who has, inter alia, "been granted landing". In turn, "landing" is defined in subsection 2(1) of the Act as "lawful permission to establish permanent residence in Canada".
[12] The Minister argued that, since a visitor"s visa was issued and landing was in the name of Lascelles Noel Pownall, it could not be said that Linval Edwards, the respondent, has ever been granted lawful permission to establish permanent residence in Canada. Therefore, the respondent is not a permanent resident and has no recourse to the appeal provisions of subsection 70(1).
[13] Relying on one of its earlier decisions (De Ocampo v. Minister of Citizenship and Immigration (I.A.D.; T97-05979; July 7, 1998)) and two decisions of this Court (Canada (Minister of Citizenship and Immigration) v. Seneca, [1998] 3 F.C. 494 (F.C.T.D.) and Canada (Minister of Citizenship and Immigration) v. Chico (IMM-3545-97; July 7, 1999) (F.C.T.D.)), the Appeal Division dismissed the Minister"s preliminary motion and determined that it had jurisdiction to hear the matter.
[14] The Board found that the respondent had fraudulently misrepresented himself to the immigration authorities on numerous occasions and that he had lawfully been ordered deported under paragraph 27(1)(e). The Board also concluded that Mr. Edwards reentered Canada in 1992 by using his brother"s identity in order to care for his wife and young children. Indeed, his wife"s mental health had deteriorated alarmingly and she was under a court order to stay away from the children.
[15] Mr. Edwards has been the primary caregiver for his children prior to and after he came to the attention of Immigration Canada in 1997. It was their dependence on him, and the good care that he seemed to be taking of them, that persuaded the Board to grant a three year conditional stay of his removal to Jamaica, despite his serious record of Immigration Act infractions.
[16] In this application for judicial review counsel for the Minister repeated the jurisdictional argument made before the Immigration Appeal Division and tactfully invited me not to follow the decisions of my colleagues on which the Board had relied, including Seneca, supra, and Chico, supra. I delayed giving reasons in this case until the appeal in Seneca, supra, was decided.
[17] The Federal Court of Appeal confirmed the decision and analysis of the Trial Division in Seneca, supra (Canada (Minister of Citizenship and Immigration) v. Seneca (A-261-98; September 29, 1999) (F.C.A.)), and reached the same result in another similar case (Jaber v. Canada (Minister of Citizenship and Immigration) (A-917-97; September 30, 1999) (F.C.A.)). Since the reasoning of the Federal Court of Appeal for the most part adopted that of the Trial Division in Seneca, supra, and Chico, supra, it was not necessary for me to ask for additional submissions from counsel.
[18] Thus, even if I were so inclined, it is no longer open to me to hold that a person who obtained landing by fraudulently misrepresenting a material fact is not a permanent resident for the purpose of either section 27 or section 70 of the Act.
[19] In both Seneca, supra and Jaber, supra, the applicants had obtained visas by misrepresenting their marital status. The only argument available to the Minister in this case is that a misrepresentation of identity is distinguishable from misrepresentations of other material facts for the purpose of determining whether the respondent was a permanent resident within the meaning of section 70. Indeed, in Eugenio v. Canada (Minister of Citizenship and Immigration) (1997), 38 Imm. L.R. (2d) 165 (I.A.D.) the Appeal Division had held that a person who obtained landing by misrepresenting his identity was not a permanent resident. However, that case pre-dated the Trial Division"s decisions in Seneca, supra, and Chico, supra.
[20] In my opinion the reasoning in neither Seneca, supra, nor Jaber, supra, provides any support for drawing such a distinction. Central to the reasoning in those cases was that subsection 27(1) recognises that a person who was granted landing on the basis of false representations is nonetheless a permanent resident, albeit one who is liable to deportation under paragraph 27(1)(e).
[21] An argument that a fraudulent misrepresentation of a material fact renders a grant of landing void ab initio is simply unsustainable in the face of subsection 27(1), despite the provision that "landing" means "lawful permission to establish permanent residence in Canada". Indeed, as the Federal Court of Appeal noted in Jaber , supra,
| Sections 27 to 32, in the Removal afer admission section, recognize that landing may have in fact been granted to undeserving people and set out the procedure by and the grounds for which such a person thus admitted may be deported. |
In my view to accept the respondent"s argument with respect to the absolute nullity of the act [scil. of granting landing] would not only be contrary to the procedure established by Parliament, but would lead to absurdities.
[22] The Court also said that it was irrelevant whether the person was ordered deported pursuant to paragraph 27(1)(e), or paragraph 27(2)(g), the analogous provision relating to the deportation of persons other than permanent residents. Whether a person is a permanent resident with a right of appeal to the Appeal Division under subsection 70(1) cannot depend on which provision Immigration Canada invokes in a particular case to remove a person.
[23] Counsel advanced two arguments for reading into subsection 27(1) the implied limitation that it did not apply to a person who had misrepresented his identity. First, he drew by way of analogy on the law of contract and marriage, where a mistake of identity has been held to be sufficiently fundamental to avoid the contract or the marriage.
[24] I do not find this argument persuasive because the formation of a contract or a marriage is an essentially consensual act; hence, facts that negate a meeting of minds may render the agreement void. In contrast, the grant of a visa or of landed status is a unilateral act of the Minister or her officials. Moreover, private law analogies are apt to be quite misleading as guides to the interpretation of a detailed statutory scheme designed to implement a public program.
[25] It would have been different if the real Mr. Pownall had been granted landing and Mr. Edwards, who, let us suppose, having entered Canada without permission, subsequently assumed Mr. Pownall"s identity and his immigration documents. It seems to me that, if he were ordered deported in those circumstances, Mr. Edwards could not subsequently claim a right of appeal under subsection 70(1) as a permanent resident. This is because he had not been granted landing in that he did not have lawful permission to establish permanent residence in Canada. However, that is not our case.
[26] Second, counsel argued that the misrepresentation of a person"s identity is different from the misrepresentation of other material facts because it effectively prevents the immigration authorities from conducting a security check on the person"s immigration history and criminal record. I can see that this may well be the case, as indeed it was here. However, it does not follow that this consideration has any bearing on whether a person has a full right of appeal against deportation under this statutory scheme.
[27] If it is undesirable as a matter of public policy that those who obtain landed status in Canada by misrepresentations or other fraudulent means, should have a right of appeal to the Board on "equitable grounds" against their removal, the remedy lies with Parliament, not this Court.
[28] The following question is certified pursuant to subsection 83(1) as a "serious question of general importance" that is necessary for the disposition of this case:
| Is a person who obtained a visa and was granted landed status by fraudulently misrepresenting his or her identity thereby not in possession of "lawful permission to establish permanent residence in Canada" and thus not a "permanent resident" within the meaning of subsection 70(1) of the Immigration Act ? |
[29] Finally, I should note that in the draft reasons that I circulated to counsel in order to receive their submissions on any question that they wished me to certify, I had awarded costs in a lump sum to the applicant "as the successful party in this application". In addition to a question raising the issue that I have formulated above, counsel for the Minister asked me to certify a question on my award of costs. I then realised that when I had prepared my draft reasons I had failed to keep in mind Rule 22 of the Federal Court Immigration Rules, 1993 which contains an important exception to the broad discretion over costs conferred by Rule 400(1) of the Federal Court Rules, 1998.
[30] Despite the representations ably made by Mr. Barnwell on the issue, I have never considered, and do not now consider, that there are "special reasons" justifying an award of costs in this case, especially given the deceptive conduct of Mr. Edwards in his dealings with Immigration Canada.
[31] For these reasons the application for judicial review of the decision of the Immigration Appeal Division is dismissed.
.
OTTAWA, ONTARIO "John M. Evans"
November 29, 1999. J.F.C.C.
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