Canada (Citizenship and Immigration) v. Yu, docket IMM-1264-96

     IMM-1264-96

OTTAWA, ONTARIO, THIS 6th DAY OF JUNE 1997

BEFORE: MR. JUSTICE J.E. DUBÉ

BETWEEN:

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

     Applicant,

     - and -

     EVELYN YU,

     Respondent.

     O R D E R

     The application for judicial review is granted.

     The following questions are hereby certified under subsection 83(1) of the Immigration Act.

Does the IAD have jurisdiction under section 70(1) to entertain the appeal of a person who was landed in reliance of a fraudulent misrepresentation made by that person? In particular, has a person who has been landed on the basis of a fraudulent misrepresentation been given "lawful permission to establish herself within Canada" so as to be a "permanent resident" who can appeal under section 70(1) of the Immigration Act? Does the IAD have jurisdiction under subsection 70(1) to entertain the appeal of a person, whether or not the report on that person was made under paragraph 27(1)(e) or paragraph 27(2)(g) of the Act?

    

     Judge

     IMM-1264-96

BETWEEN:

     MINISTER OF CITIZENSHIP AND IMMIGRATION,

     Applicant,

     - and -

     EVELYN YU,

     Respondent.

     REASONS FOR ORDER

DUBÉ J:

     This application for judicial review is launched by the Minister of Citizenship and Immigration ("the Minister") against the decision of the Immigration and Refugee Board, Appeal Division ("the Appeal Division") dated March 28, 1996, allowing the respondent's ("Mrs. Yu") appeal under section 70 of the Immigration Act ("the Act") and quashing the deportation order issued against her.

1- Factual background

     The deportation order in question was issued after it was discovered that Mrs. Yu received her immigration visa on July 15, 1991 and immigrated to Canada on December 9, 1991 after her father had declared her as a "never married dependent" while she had in fact been married twice to the same man and never divorced.

     Mrs. Yu, while still single had been sponsored by her brother in November 1988. She married her fiancé on January 11, 1989 (before receiving her immigration visa) but never disclosed this to the Canadian Immigration authorities nor to her own family. On July 5, 1992, Mrs. Yu filed an undertaking of assistance for her husband listing him as her fiancé. On October 9, 1992, she returned to the Philippines and married her husband a second time, before his application was processed as her fiancé.

     At the hearing before the Appeal Division on February 29, 1996, the Minister argued that Mrs. Yu had made misrepresentations to the Canadian immigration authorities and had not therefore been lawfully granted permanent resident status, because at the time the visa was issued to her she was not a "dependent".

2- Legal issues

     Subsection 70(1) of the Act stipulates that where a removal order is made against a permanent resident that person may appeal to the Appeal Division on either of two grounds, on a question of law or fact or on the ground that, having regard to all the circumstances of the case, the person should not be removed from Canada.

     The Minister submits that the Appeal Division committed a reviewable error when it assumed jurisdiction as the visa was void ab initio having been issued on misrepresentations on the part of Mrs. Yu: she was never lawfully permitted to establish residence in Canada. The term "permanent resident" is defined in section 2 of the Act as a person who has been granted "landing". "Landing" is defined as the "lawful permission to establish permanent residence in Canada". Mrs. Yu knew of the consequences which would result if she disclosed her marriage as two of her siblings were refused visas due to the fact that they were not dependents, but married individuals. According to the Minister, she was not lawfully permitted to establish permanent residence in this country.

     Mrs. Yu contends that she was issued an immigrant visa at the port of entry and therefore the validity of her visa can no longer be questioned since she has become a permanent resident. She states that if the Minister wanted to claim that she was not a permanent resident, he ought to have proceeded pursuant to paragraph 27(2)(g) of the Act which deals with a person in Canada who is not a permanent resident and not under paragraph 27(1)(e) which deals with a person who is a permanent resident.

3- Analysis

     The parties referred inter alia to two Federal Court Trial Division decisions addressing somewhat similar situations and released at about the same time last year. The first is Jaime Cadiente Peralta¹, a decision of Richard J., and the subsequent decision is that of McKeown J. in Thi Minh Nguyet Tran².

     In Peralta, the applicant, a citizen of the Philippines, became a permanent resident of Canada on March 20, 1993, as a member of the "family class", namely an accompanying dependent son of his father. His application indicated that he was unmarried which was correct in 1991 and 1992. When he arrived in Canada in 1993, he advised the Immigration Officer at the port of entry that he was still unmarried despite having been married ten days earlier. When his misrepresentation was discovered, he was ordered deported. Mr. Peralta appealed the deportation order to the Appeal Division. The Appeal Division adopted the reasoning of this Court in Decaro³, Wong⁴ and Hundal⁵ and held that it was without jurisdiction to hear the appeal. Richard J. dealt with the second and third grounds of Mr. Peralta's appeal as follows before dismissing the application for judicial review (at page 4):

The second ground relied on by counsel for the applicant is that the Appeal Division wrongfully determined that the applicant's visa was invalid. Counsel for the applicant relied on the Hundal case. However, the Hundal case recognized four exceptions to the general principle that once a visa is issued, it remains valid. The first is the Decaro exception. It applies when it is obvious that a supervening act makes the satisfaction of the condition of the visa impossible. This exception to general principle applies in this case. The applicant's marriage prior to his entry into Canada was a supervening act that made the satisfaction of the condition of the visa impossible. Further, the applicant failed to establish that he was a dependent son.

The third ground raised by counsel for the applicant was that if he was properly found not to be a permanent resident, then his section 27 inquiry was improper in that it proceeded on the basis of a report completed pursuant to paragraph 27(1)(e) which applies to a permanent resident. However, the purpose of the inquiry under paragraph 27(1)(e) is to determine whether the applicant was granted permanent residence based on a material misrepresentation made on his application. The inquiry was properly undertaken under that provision.

(my emphasis)

     In the Tran decision, the applicant is a citizen of Vietnam. McKeown J. found that the applicant's original application form was correct. However, five years later, Mrs. Tran got married and did not disclose to the authorities that her status had changed. Her immigration visa arrived fifteen months after her marriage and approximately six years after her application for landed status was made. There was no report made against her under paragraph 27(2)(g). Mrs. Tran herself brought the change in her marital status to the attention of the authorities when she commenced an application to sponsor her husband seven months after being granted landed immigrant status in Canada. At the same time, she apologized profusely for her mistake in not disclosing this change.

     Mrs. Tran was reported as a permanent resident who was granted landing by reason of an improperly obtained visa under paragraph 27(1)(e). A deportation order was issued and she appealed under section 70 of the Act. The Appeal Division found that she was not a permanent resident of Canada because she was granted landing by means of a subterfuge and, in that sense, "it was void ab initio". The Appeal Division declined jurisdiction.

     McKeown J. noted that it was never alleged that Mrs. Tran was not a permanent resident of Canada but that she had obtained her permanent resident status through misrepresentation of a material fact: exactly what is contemplated by paragraph 27)(1)(e).

     The learned judge noted that Mrs. Tran's application was clearly true at the time it was made but that due to the passage of time her marital status changed. She herself brought that fact to the attention of the authorities. He held that Mrs. Tran should have been dealt with as a permanent resident under paragraph 27(1)(e) and subsection 70(1) of the Act and that the Appeal Division had jurisdiction to hear the appeal.

     The ratio decidendi in the Peralta decision is that the applicant having fraudulently obtained permanent resident status cannot avail himself of the appeal rights accorded by subsection 70(1) of the Act: the applicant's marriage prior to his entry into Canada was a supervening act that made the satisfaction of the condition of the visa impossible. On the other hand, in the Tran case, Mrs. Tran's application was clearly true at the time the application was made and she herself brought the change in her marital status to the attention of the authorities. There was no misrepresentation.

     In the instant case, there was misrepresentation ab initio on the part of Mrs. Yu and she compounded the misrepresentation by marrying her husband a second time without disclosing this information to the immigration authorities. In Wong, MacGuigan, J.A., stated as follows (at page 2):

... 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".

     In the case at bar, the foundation on which rested the issuance of the visa never existed: Mrs. Tran was not a dependent daughter at the time of the application for the visa as she was already married but had informed no one including her parents: the Appeal Division had no jurisdiction to entertain her appeal. As in Wong, the principal reason for the issuance of her visa ceased to exist before its issuance.

     Consequently, this application for judicial review is granted.

     Both parties have asked that the following questions be certified under subsection 83(1) of the Act. I agree.

Does the IAD have jurisdiction under subsection 70(1) to entertain the appeal of a person who was landed in reliance of a fraudulent misrepresentation made by that person? In particular, has a person who has been landed on the basis of a fraudulent misrepresentation been given "lawful permission to establish herself within Canada" so as to be a "permanent resident" who can appeal under subsection 70(1) of the Immigration Act?

     I would add a third prong to the questions which, in my view, is related to the main issue and is of general importance, namely:

Does the IAD have jurisdiction under subsection 70(1) to entertain the appeal of a person, whether or not the report on that person was made under paragraph 27(1)(e) or paragraph 27(2)(g) of the Act?

O T T A W A

June 6, 1997

    

     Judge

__________________

¹      IMM-1923-96, Richard J., November 20, 1996.

²      IMM-3111-95, McKeown J., December 18, 1996.

³      [1993] 2 F.C. 408 (F.C.A.).

⁴      (1993), 153 N.R. 237 (F.C.A.).

⁵      (1995), 30 Imm. L.R. (2d) 52 (F.C.T.D.).