Woolaston v. Minister of Manpower and Immigration, [1973] SCR 102

Supreme Court of Canada

Woolaston v. Minister of Manpower and Immigration, [1973] S.C.R. 102

Date: 1972-06-29

Leslie Leonard Woolaston and Roslyn Pamela Woolaston Appellants;

and

The Minister of Manpower and Immigration Respondent.

1972: May 8, 9; 1972: June 29.

Present: Abbott, Judson, Ritchie, Pigeon and Laskin JJ.

ON APPEAL FROM THE IMMIGRATION APPEAL BOARD

Immigration—Application for permanent admission made after expiry of authorized temporary stay—Deportation order affirmed by Immigration Appeal Board—Evidence that applicant prevented from making formal application before expiry date

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—Court unable to conclude Board ignored evidence—No error of law.

The male appellant, LW, then unmarried, made a timely application on August 30, 1968, for permanent admission to Canada. On being assessed he failed to meet the required minimum standard, both in the opinion of the immigration officer before whom he first appeared on October 7, 1968, and in the opinion of the Special Inquiry Officer before whom he appeared on March 20, 1969. An order of deportation was made against him and that order was subsequently affirmed by the Immigration Appeal Board.

On November 2, 1968, LW married the female appellant, RW, a non-immigrant student under a certificate which permitted her to remain in Canada until December 5, 1968. It was not until after her husband had been ordered deported on March 20, 1969, that she herself formally applied for permanent admission under an application dated April 3, 1969. Her application was not entertained by the immigration authorities who, instead, instituted deportation proceedings against her. She was ordered deported on June 23, 1969.

On appeal to the Immigration Appeal Board, the Board affirmed the order of deportation made against RW on the ground, inter alia, that she was not a qualified applicant for permanent admission under the Immigration Regulations, not being lawfully in Canada at the time of her formal application for admission.

On appeal to this Court from the decisions of the Immigration Appeal Board affirming the orders of deportation against the appellants, counsel for the spouses conceded that the husband’s appeal could not succeed unless that of the wife succeeded, in which case he proposed to submit that had the wife’s application been entertained she would have been entitled, if successful, to sponsor the admission of her husband under s. 31(1) (a) of the Regulations.

Held: The appeals should be dismissed.

Evidence that, prior to December 5, 1968, RW attended the immigration office and reported her marriage and her intention to apply for permanent residence, but was prevented from making a formal application by being informed that she could not apply on account of her marriage and would be included in her husband’s application, was before the

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Immigration Appeal Board as part of the transcript of proceedings before the Special Inquiry Officer. It could not be concluded that the Board ignored that evidence and thereby committed an error of law to be redressed in this Court. The fact that it was not mentioned in the Board’s reasons was not fatal to its decision. It was in the record to be weighed as to its reliability and cogency along with the other evidence in the case, and it was open to the Board to discount it or to disbelieve it.

What was presented as an error of law was properly a matter of fact upon which no appeal lies to this Court. It followed that the appeal of the wife must be dismissed, and in consequence that of the husband as well.

APPEALS from two decisions of the Immigration Appeal Board affirming orders of deportation against the appellants. Appeals dismissed.

J.A. Ryder, for the appellants.

S.F. Froomkin, for the respondent.

The judgment of the Court was delivered by

LASKIN J.—The appellants, husband and wife, are before this Court by its leave following separate applications for leave and separate appeals from two decisions of the Immigration Appeal Board, dated November 4, 1970, affirming orders of deportation made against them on March 20, 1969, and June 23, 1969, respectively.

The husband, then unmarried, made a timely application on August 30, 1968, for permanent admission to Canada. No objection is taken to the consequential proceedings in the course of which he was assessed under the norms set out in Schedule A to the Immigration Regulations, as enacted by P.C. 1967—1616 of August 16, 1967. He failed to meet the required minimum standard, both in the opinion of the immigration officer before whom he first appeared on October 7, 1968, and in the opinion of the Special Inquiry Officer

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before whom the male appellant appeared on March 20, 1969. On his appeal to the Immigration Appeal Board, heard on October 6, 1970, that tribunal reviewed the assessment; and although it varied it upward the male appellant still fell below the required minimum standard.

He married the female appellant on November 2, 1968, shortly after his examination by the immigration officer. She, like her husband, had entered Canada on a non-immigrant visitor’s visa. She had her status changed to that of a non-immigrant student under a certificate which permitted her to remain in Canada until December 5, 1968. It was not until after her husband was ordered deported on March 20, 1969 (without his wife being included in that order) that she herself formally applied for permanent admission under an application dated April 3, 1969. She was then clearly in breach of the Regulations by reason of the previous expiry of her period of lawful sojourn in Canada. It appears that because of this her application was not entertained by the immigration authorities, who, instead, initiated deportation proceedings against her. The deportation order made against her on June 23, 1969, was grounded on the foregoing breach of the Regulations and on the further ground that she was a member of a prohibited class under s.5(o) of the Immigration Act, now R.S.C. 1970, c.I-2, as a member of a family accompanying a member thereof who was not admissible to Canada, and the Special Inquiry Officer being of the opinion that hardship would be involved in their separation.

Her appeal to the Immigration Appeal Board was heard, without objection, concurrently with the appeal of her husband. The Board affirmed the order of deportation against her on the ground, inter alia, that she was not a qualified applicant for permanent admission under the Regulations, not being lawfully in Canada at the time of her formal application for admission. This feature of the case undercut the submission of the female appellant’s counsel, made to the Board, that she was entitled under the Canadian Bill of Rights to

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have her application for permanent admission considered in her own right and independently of that of her husband. The Board correctly noted that no issue of discrimination on the ground of sex or otherwise arose on the facts of the case.

The contention made in this Court on behalf of the wife is that reflected on the question on which leave to appeal here was given. It is as follows:

Did the Board err in law in holding that the applicant was not entitled to have her application for permanent residence processed in accordance with the Immigration Act and regulations thereunder for the sole reason that her application was filed on the 3rd of April, 1969 while her temporary stay in Canada authorized by an Immigration Officer expired on December 5, 1968, without taking into consideration uncontradicted evidence that before the last mentioned date she did attend the Immigration Office and reported her marriage solemnized November 2, 1968 and her intention to apply for permanent residence, but was prevented from making a formal application by being informed that she could not apply on account of her marriage and would be included in her husband’s application made on October 7, 1968?

In advancing this contention, counsel for the spouses conceded that the husband’s appeal could not succeed unless that of the wife succeeded, in which case he proposed to submit that had the wife’s application been entertained she would have been entitled, if successful, to sponsor the admission of her husband under s.31(1)(a) of the Regulations. I point out, without ruling upon it, the rejoinder of counsel for the Minister that the husband as a deportee at the material time would not have been eligible to be sponsored. I need not, however, rule on this counter-submission because I am of the opinion that the wife’s contention in this Court fails.

Counsel for the spouses relies on slim evidence given by the wife during the hearing held by the Special Inquiry Officer on June 23, 1969, into

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the legality of her continued stay in Canada. She testified as follows:

Q. Were you included on your husband’s original application for permanent residence?

A. No, I wasn’t.

Q. Was the reason for that because you were not married at that time?

A. Yes.

Q. After you were married, did you attend this Immigration Office to advise them that you were married and that you wished to be included in your husband’s application?

A. I did come down at a later date but I applied at the desk, and she said I could not apply because I was married at the time, and I would be included in my husband’s application.

Q. You would be included in your husband’s application?

A. Yes, that is what she told me at the desk.

Q. Would you have come down prior to the expiry of your non-immigrant status which was 5 December, 1968?

A. No I didn’t.

Q. You think it was after that?

A. Yes, I think—no, it must have been before because I could remember that it was expiring.

Q. You noticed that it was going to expire so you came down to have that adjusted, did you?

A. Yes.

The female appellant was not then represented by counsel, but she did have counsel before the Immigration Appeal Board, and the evidence upon which she now relies to raise the point of law on which leave was given was before the Board as part of the transcript of proceedings before the Special Inquiry Officer. She had indicated at the conclusion of the hearing by the Special Inquiry Officer that she wished to appeal to the Board and to appear in person before it. She gave evidence before the Board, and her counsel referred to the transcript of the special inquiry in the course of her examination, but without mentioning the portion of the evidence upon which re-

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liance is now placed. She herself did not return to this evidence in testifying before the Board.

I am unable to conclude that the Board ignored that evidence and thereby committed an error of law to be redressed in this Court. The fact that it was not mentioned in the Board’s reasons is not fatal to its decision. It was in the record to be weighed as to its reliability and cogency along with the other evidence in the case, and it was open to the Board to discount it or to disbelieve it.

I am satisfied upon a review of the entire record that what has been presented as an error of law is properly a matter of fact upon which no appeal lies to this Court. It follows that the appeal of the wife must be dismissed, and in consequence that of the husband as well.

Appeals dismissed.

Solicitors for the appellants: Cameron, Brewin & Scott, Toronto.

Solicitor for the respondent: S.F. Froomkin, Ottawa.