Judgments

[1995] 3 F.C. 231

IMM-1693-94

The Secretary of State of Canada (Applicant)

v.

Marlon Bruan (Respondent)

Indexed as: Bruan v. Canada (Minister of Employment and Immigration) (T.D.)

Trial Division, Nadon J.—Winnipeg, January 31; Ottawa, June 9, 1995.

Citizenship and Immigration — Exclusion and removal — Inadmissible persons — Judicial review of IRB, Appeal Division decision allowing appeal from exclusion order — Sponsor died before visa issued — Only disclosed to authorities at port of entry — Under Immigration Act, s. 70(2)(b) appeal from removal order lies if, when report made by immigration officer, person possessing “valid immigrant visa” — Appeal Division lacked jurisdiction — Where principal reason for visa ceases to exist prior to issuance, visa not “valid immigrant visa”.

This was an application for judicial review of a decision of the Immigration and Refugee Board, Appeal Division allowing an appeal by the respondent from an exclusion order. The respondent is a citizen of the Philippines. His application for permanent residence was sponsored by his mother. The respondent’s mother died in July 1991 and his application was approved in September. The respondent only informed the Canadian authorities that his mother had died in 1991 when asked by an immigration officer at the port of entry whether his mother still resided at the same address. The immigration officer issued a report that it would be contrary to the Act to grant admission to the respondent because he was a member of the inadmissible class described in Immigration Act, paragraph 19(2)(d). Specifically, the respondent was not a permanent resident and could not be landed with the visa issued to him as he did not qualify under the family class as an unmarried son. Following an inquiry, the Adjudicator also concluded that the respondent did not meet the requirements of the Act and Immigration Regulations, 1978. The Adjudicator issued an exclusion order. The Appeal Division allowed the appeal on the basis of humanitarian or compassionate grounds and ordered that the removal order be quashed.

The applicant submitted that the Appeal Division did not have jurisdiction to hear the respondent’s appeal because the respondent, upon his arrival in Canada, was not in possession of a valid visa as required by Immigration Act, paragraph 70(2)(b). That paragraph provides that an appeal lies to the Appeal Division from a removal order made against a person who seeks landing and, at the time 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”. The issue was whether the respondent, upon his arrival in Canada, was in possession of a valid visa. The applicant relied on two decisions of the Federal Court of Appeal—Canada (Minister of Employment and Immigration) v. De DeCaro and Minister of Employment and Immigration v. Wong. The Appeal Division had distinguished these cases, holding that when the respondent arrived in Canada, his visa was valid since it had not expired.

Held, the application should be allowed.

The Appeal Division erred in law in concluding that it had jurisdiction to hear the respondent’s appeal.

Although neither concerned the death of a sponsor, the De DeCaro and the Wong decisions were not distinguishable. The Court was bound to follow the reasoning of Pratte J.A. in De DeCaro and more so that of MacGuigan J.A. in Wong to the effect that where, as here, the principal reason for the issuance of the visa ceases to exist prior to the issuance thereof, the visa is not a “valid immigrant visa”. Support for these decisions was also to be found in an earlier Federal Court of Appeal decision which established that a visa can be revoked or become invalid due to a change of circumstances. What constitutes a change of circumstances must be determined in each case.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Immigration Act, 1976, S.C. 1976-77, c. 52, s. 27(1)(e).

Immigration Act, R.S.C., 1985, c. I-2, ss. 6 (as am. by S.C. 1992, c. 49, s. 3), 9 (as am. idem, s. 4), 19(2)(d), 20(1)(a), 70(2) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18), (3) (as am. idem), 83 (as am. by S.C. 1992, c. 49, s. 73).

Immigration Regulations, 1978, SOR/78-172, ss. 2(1) (as am. by SOR/93-44, s. 1), 4 (as am. idem, s. 4), 6 (as am. by SOR/79-167, s. 2; 82-702, s. 2; 83-675, s. 2; 84-140, s. 2; 88-286, s. 3; 91-157, s. 1; 92-101, s. 3; 93-44, s. 5; 94-242, s. 1), 6.1 (as enacted by SOR/93-44, s. 6), 12 (as am. by SOR/83-540, s. 2; 93-44, s. 11).

CASES JUDICIALLY CONSIDERED

FOLLOWED:

Canada (Minister of Employment and Immigration) v. De DeCaro, [1993] 2 F.C. 408 (1993), 103 D.L.R. (4th) 564; 155 N.R. 129 (C.A.); Minister of Employment and Immigration v. Wong (1993), 153 N.R. 237 (F.C.A.).

APPLIED:

Minister of Employment and Immigration v. Gudino, [1982] 2 F.C. 40 (1981), 124 D.L.R. (3d) 748; 38 N.R. 361 (C.A.).

APPLICATION for judicial review of a decision of the Immigration and Refugee Board, Appeal Division allowing an appeal from an exclusion order (Bruan v. Canada (Minister of Employment and Immigration), [1994] I.A.D.D. No. 55 (QL)). Application allowed.

COUNSEL:

Mark G. Mason for applicant.

David Matas for respondent.

SOLICITORS:

Deputy Attorney General of Canada for applicant.

David Matas, Winnipeg, for respondent.

The following are the reasons for order rendered in English by

Nadon J.: The applicant seeks judicial review of a decision rendered by the Appeal Division of the Immigration and Refugee Board [[1994] I.A.D.D. No. 55 (QL)] (the Appeal Division) on February 25, 1994, pursuant to which the Appeal Division allowed an appeal by the respondent from an exclusion order made against him. As a result, the Appeal Division quashed the exclusion order and directed that the respondent be examined at a port of entry and landed in Canada.

The relevant facts can be summarized as follows:

The respondent, born on July 9, 1959, is a citizen of the Philippines. His mother, admitted to Canada on November 27, 1986, agreed to sponsor him and, accordingly completed an undertaking of assistance under the family class. At all material times, the respondent’s mother resided with her daughter (the respondent’s sister) at 2027 Sinclair Street, in Winnipeg. As the respondent’s mother was unemployed, the respondent’s sister provided for her maintenance as well as for the cost of the home in which they resided. The undertaking of assistance signed by the respondent’s mother is dated November 10, 1988. The notation “joint sponsorship” “fee paid” appears on the face of the document.

In December 1989, the respondent applied for permanent residence in Canada and indicated in his application form that his mother was his sponsor. While visiting the Philippines in July 1991, the respondent’s mother died. On September 4, 1991, the Canadian Embassy in Manila wrote to the respondent informing him that his application for permanent residence had been approved. The letter written to the respondent reads as follows:

We are pleased to advise that your application for permanent residence in Canada has been approved. The enclosed envelope[1] contains Canadian immigration visa(s) for you and your accompanying family members. You must present the visa(s) to the immigration officer at the port of entry when you arrive in Canada. Please note that the visa(s) are valid to 19 MARCH 1992. You must arrive in Canada before the visa expires.

The documents for your admission to Canada have been issued on the basis of the information you have provided. If you or any of your accompanying family members marry or otherwise change marital status before departing to Canada, or if there is any other change in the composition of your family before your intended date of departure, you should inform this office immediately to avoid delays and difficulties later.

The enclosed information sheet provides advice which may be of assistance when planning your departure and following your arrival in Canada.

The respondent testified that upon receipt of the above letter, he attended at the Canadian Embassy in Manila to pick up his visa. He further testified that he was asked to identify himself and that, after having done so, his visa was given to him. Prior to his departure from the Philippines, the respondent did not inform the Canadian Embassy that his mother had died in July 1991.

The respondent left the Philippines and arrived in Vancouver, British Columbia, on January 22, 1992. Upon arrival, the respondent was asked by the immigration officer if his mother still resided at 2027 Sinclair Street in Winnipeg and he answered that his mother had died in July 1991. The respondent was further asked if he had informed the Canadian Embassy in Manila of his mother’s death. To this question, the respondent answered that, as he had not been asked that question, he had not provided the information. As a result, on March 5, 1992, the immigration officer issued a report under paragraph 20(1)(a) of the Immigration Act [R.S.C., 1985, c. I-2] (the Act) to the effect that, in his opinion, it would be contrary to the Act to grant admission to the respondent because he was a member of the inadmissible class of persons described in paragraph 19(2)(d) of the Act.

Specifically, the immigration officer stated in his report that the respondent was not a Canadian citizen, was not a permanent resident of Canada, and could not be landed with the visa issued to him as he did not qualify under the family class category as an unmarried son. The report further indicates that the respondent no longer qualified because his mother had died in July 1991, i.e. prior to the issuance of his visa on September 4, 1991. Finally, the report indicates that the respondent had failed to report his mother’s death to the visa office abroad as he was so required.

On June 12, 1992, an inquiry was held in Winnipeg before an adjudicator of the Immigration Adjudication Branch. At the end of the inquiry, the adjudicator concluded that the respondent did not meet the requirements of the Immigration Regulations, 1978 [SOR/78-172] and, in particular, the requirements of section 12 [as am. by SOR/83-540, s. 2; 93-44, s. 12] thereof and that, as a result, the respondent’s admission to Canada would be contrary to the provisions of the Act. Consequently, the adjudicator ordered the exclusion of the respondent from Canada.

On June 12, 1992, the respondent appealed the adjudicator’s decision to the Appeal Division. The hearing before the Appeal Division was held at Winnipeg on April 26, May 6 and June 7, 1993. On February 25, 1994, the Appeal Division allowed the respondent’s appeal and ordered that the removal order be quashed.

On March 31, 1994, the applicant filed the present application for judicial review. In a nutshell, the applicant’s argument is that the Appeal Division did not have jurisdiction to hear the respondent’s appeal. Specifically, the applicant submits that, since the respondent, upon his arrival in Canada, was not in possession of a valid visa, the Appeal Division could not hear his appeal under paragraph 70(2)(b) [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18] of the Act which reads as follows:

70. …

(2) Subject to subsections (3) and (4), 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.

Also of relevance is subsection 70(3) [as am. idem] of the Act which reads as follows:

70. …

(3) An appeal to the Appeal Division under subsection (2) may be based on either or both of the following grounds:

(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 the existence of compassionate or humanitarian considerations, the person should not be removed from Canada.

As appears clearly from subsection 70(2) of the Act, the respondent herein was entitled to appeal the removal order if, upon arrival in Canada, he was in possession of a valid immigrant visa. The sole question for determination herein is whether the respondent, upon his arrival in Canada on January 22, 1992, was in possession of such a visa.

In support of his submissions, the applicant relies primarily on two (2) decisions rendered by the Federal Court of Appeal, namely Canada (Minister of Employment and Immigration) v. De DeCaro, [1993] 2 F.C. 408 and Minister of Employment and Immigration v. Wong (1993), 153 N.R. 237.

The Court of Appeal’s decisions in De DeCaro and Wong were considered by the Appeal Division. However, the Appeal Division concluded that both of these decisions were distinguishable. The Appeal Division took the position that, when the respondent arrived in Canada, the visa issued to him by the Canadian Embassy in Manila was a valid visa since it had not expired.[2] At page 24 of its decision the Appeal Division stated the following:

All of the above factors and the difference between the jurisdiction of the Appeal Division contained in the Act when dealing with an individual said to be in possession of a valid immigrant visa and the jurisdiction of the Appeal Division in dealing with a permanent resident against whom a removal order has been made, both of whom may find themselves in their respective circumstances by virtue of a change in circumstances, leads me to conclude that the term “valid immigrant visa” means a visa which has not expired or one which has not been revoked.

Although the Appeal Division held that the removal order made against the respondent was valid, it nonetheless allowed his appeal on the basis of humanitarian or compassionate grounds. The Appeal Division concluded its decision as follows [at page 30]:

The appeal having been allowed and the removal order against the appellant having been quashed, the question of course is the effect of an order that the appellant be examined as a person seeking admission at a port of entry. As the appeal was allowed on the basis of the existence of compassionate or humanitarian considerations leading to a finding that the appellant should not be removed from Canada when examined at a port of entry, effect should be given to that finding and the visa which he was issued should be given effect to result in landing in Canada. I therefore also order that the appellant be examined as a person seeking admission at a port of entry.

Analysis

I begin my analysis by looking at those provisions of the Act and the Immigration Regulations, 1978 which have relevance to the issuance of visas. Section 6 [as am. by S.C. 1992, c. 49, s. 3] of the Act sets out the general principles relating to the selection of immigrants, under which regulations are made for selection based on family relationships and dependency. The relevant sections concerning family class are: subsection 2(1) [as am. by SOR/93-44, s. 1] which sets outs the definition of “member of the family class”; section 4 [as am. by idem, s. 4], which prescribes the family class as a class of immigrants for the purposes of subsection 6(1) of the Act; section 6 [as am. by SOR/79-167, s. 2; 82-702, s. 2; 83-675, s. 2; 84-140, s. 2; 88-286, s. 3; 91-157, s. 1; 92-101, s. 3; 93-44, s. 5; 94-242, s. 1] which sets out certain criteria and qualifications surrounding the family class; and finally section 6.1 [as enacted by SOR/93-44, s. 6] contains further qualifications.

Subsection 2(1) defines “member of the family class” as follows:

2. (1) …

“member of the family class”, with respect to any sponsor, means

(a) the sponsor’s spouse,

(b) the sponsor’s dependent son or dependent daughter,

(c) the sponsor’s father or mother,

(d) the sponsor’s grandfather or grandmother,

(e) the sponsor’s brother, sister, nephew, niece, grandson or granddaughter, who is an orphan and is under 19 years of age and unmarried,

(f) the sponsor’s fiancée,

(g) any child under 19 years of age whom the sponsor intends to adopt and who is

(i) an orphan,

(ii) an abandoned child whose parents cannot be identified,

(iii) a child born outside of marriage who has been placed with a child welfare authority for adoption,

(iv) a child whose parents are separated and who has been placed with a child welfare authority for adoption, or

(v) a child one of whose parents is deceased and who has been placed with a child welfare authority for adoption, or

(h) one relative regardless of the age or relationship of the relative to the sponsor, where the sponsor does not have a spouse, son, daughter, father, mother, grandfather, grandmother, brother, sister, uncle, aunt, nephew or niece

(i) who is a Canadian citizen,

(ii) who is a permanent resident, or

(iii) whose application for landing the sponsor may otherwise sponsor.

I now turn to section 9 [as am. by S.C. 1992, c. 49, s. 4] of the Act which concerns the procedure and requirements surrounding applications for visas. Specifically, subsections 9(1) and (3) read as follows:

9. (1) Except in such cases as are prescribed, and subject to subsection (1.1), every immigrant and visitor shall make an application for and obtain a visa before that person appears at a port of entry.

…

(3) Every person shall answer truthfully all questions put to that person by a visa officer and shall produce such documentation as may be required by the visa officer for the purpose of establishing that his admission would not be contrary to this Act or the regulations.

Therefore, subsection 9(3) imposes a requirement on a person applying for a visa to truthfully answer all questions that are put to him before the issuance of a visa. In the case at bar, the applicant does not argue that the respondent did not answer truthfully the questions that were put to him by the visa officer at the Canadian Embassy in Manila.

The Appeal Division found that the respondent had been truthful throughout. The Appeal Division also found that the respondent honestly believed that his sponsorship was a joint sponsorship i.e. his mother supported by his sister. On the basis of this finding, the Appeal Division concluded that [at page 11]:

I am satisfied that the appellant believed his sponsorship to be a joint sponsorship. Although the appellant must take responsibility for the outcome, I am satisfied he did not intend to misrepresent his situation but rather acted out of an honest misunderstanding of the terms of his sponsorship and his responsibilities.

I now turn to section 12 of the Regulations which reads as follows:

12. An immigrant who has been issued a visa and who appears before an immigration officer at a port of entry for examination pursuant to subsection 12(1) of the Act is required

(a) if his marital status has changed since the visa was issued to him, or

(b) if any other facts relevant to the issuance of the visa have changed since the visa was issued to him or were not disclosed at the time of issue thereof,

to establish that at the time of the examination

(c) the immigrant and the immigrant’s dependants, whether accompanying dependants or not, where a visa was issued to the immigrant pursuant to subsection 6(1), section 9 or subsection 10(1) or (1.1) or 11(3) or (4), or

(d) the immigrant and the immigrant’s accompanying dependants, in any other case,

meet the requirements of the Act, these Regulations, the Indochinese Designated Class Regulations, the Self-Exiled Persons Class Regulations or the Political Prisoners and Oppressed Persons Designated Class Regulations, including the requirements for the issuance of the visa.

Paragraph 12(b) of the Regulations imposes upon the holder of a visa the obligation of disclosing to an immigration officer, at a port of entry, all relevant facts relevant to the issuance of his visa which have changed since the date of issuance of the visa or which were not disclosed at the time that the visa was issued. Consequently, pursuant to paragraph 12(b) of the Regulations, the respondent was obliged to disclose to the immigration officer upon his arrival at Vancouver that his mother had died before his visa was issued by the Canadian Embassy in Manila. As I have already indicated, the respondent, in answer to a question put to him by the immigration officer in Vancouver, disclosed that his mother had died prior to the issuance of his visa.

By reason of this change in circumstances, the immigration officer concluded that the respondent was unable to establish that he met the requirements for the issuance of his visa. Accordingly, the immigration officer found that the respondent was inadmissible under the Act and Regulations. That finding is not in dispute.

Does the fact that his mother died prior to the issuance of his visa, and that he did not disclose this information to the Canadian Embassy in Manila, render the respondent’s visa invalid for the purposes of subsection 70(2) of the Act?

Firstly, I start with the proposition that a person is not admissible to Canada under the Act simply because that person is in possession of a valid immigrant visa. Paragraph 19(2)(d) of the Act makes this quite clear. It reads as follows:

19. …

(2) No immigrant and, except as provided in subsection (3), no visitor shall be granted admission if the immigrant or visitor is a member of any of the following classes:

…

(d) persons who cannot or do not fulfil or comply with any of the conditions or requirements of this Act or the regulations or any orders or directions lawfully made or given under this Act or the regulations.

Paragraph 19(2)(d) makes it clear that a person can only gain admission if, at the time of entry, he or she fulfils the conditions and requirements of the Act and the Regulations. Thus, the respondent had to demonstrate to the satisfaction of the immigration officer that, on January 22, 1992, he fulfilled the conditions of the Act and the Regulations, including the requirements for the issuance of his visa. The immigration officer concluded that he did not and issued a report under paragraph 20(1)(a) of the Act. Following the inquiry before him, the adjudicator also concluded that the respondent did not meet the requirements of the Act and the Regulations. Specifically, the adjudicator was not convinced that the respondent was admissible under the family class. There is also no issue with regard to this conclusion.

I now turn to the decisions rendered by the Federal Court of Appeal in De DeCaro and Wong. The applicant submits that the Appeal Division “erred in law in its interpretation of the decision in De DeCaro”. Furthermore, the applicant submits that the Appeal Division “erred in law by failing to place any weight on the Federal Court’s decision in Wong”.

The majority decision in De DeCaro was rendered by Mr. Justice Pratte, with whom Létourneau J.A. concurred. Mr. Justice Marceau agreed with Mr. Justice Pratte that the respondent was not admissible to Canada. However, the reasons given by Mr. Justice Marceau in reaching this conclusion differ substantially from those given by Mr. Justice Pratte.

The facts of that case may be summarized as follows. In October 1988, a visa officer issued an immigrant visa to Ignazio DeCaro and to two (2) dependants who were to accompany him, namely his wife and her daughter Kristle Julie DeCaro. Ignazio DeCaro died before leaving for Canada. Mrs. De DeCaro and her daughter did not inform the immigration authorities of his death. Mrs. De DeCaro came to Canada with her daughter and another child, who was born in the United States and who had not obtained a visa for Canada. Upon arrival in Canada, Mrs. De DeCaro applied for landing for herself and her two (2) children. Landing was denied on the basis of paragraph 19(2)(d). The adjudicator found that when Mrs. De DeCaro applied for admission to Canada, she held a valid immigrant visa since her visa had not been revoked by the authorities. The adjudicator found that Mr. DeCaro’s death did not automatically invalidate Mrs. De DeCaro’s visa. Further, the adjudicator found that there was no need to refer to section 12 of the Regulations since that provision did not enact a condition of admission, consequently its infringement did not mean that the respondent could not be admitted. The Appeal Division held that it had jurisdiction in the matter and dismissed the Minister’s appeal. The Appeal Division found that it had jurisdiction because Mrs. De DeCaro had duly obtained an immigrant visa which had never been revoked or cancelled by the proper authorities. The jurisdictional point in issue in the De DeCaro decision is the same jurisdictional point which is at issue in the present case.

Following the Appeal Division’s decision, the Minister brought an appeal before the Federal Court of Appeal. The Minister’s appeal was allowed with reasons given by Mr. Justice Pratte and Mr. Justice Marceau. As these reasons differ substantially from one another, I will examine them separately.

Firstly, I wish to make it clear that both Mr. Justice Pratte and Mr. Justice Marceau, for different reasons, concluded that Mrs. De DeCaro was inadmissible to Canada because she could not, at the point of entry, establish that she met the requirements of section 12 of the Regulations. Specifically, Mrs. De DeCaro was found inadmissible because she could no longer meet the requirements for the issuance of her visa, because of the death of her husband.

The difference of opinion between Mr. Justice Pratte and Mr. Justice Marceau is in regard to the words “in possession of a valid immigrant visa” which appear in paragraph 70(2)(b) of the Act. As a result of their disagreement on that point, Mr. Justice Pratte disposed of the matter by setting aside the decision rendered by the Appeal Division and making the removal order which the adjudicator should have made under paragraph 32(5)(b) [as am. by R.S.C., 1985, (4th Supp.), c. 28, s. 11] of the Act. Thus, Pratte J.A. ordered that Mrs. De DeCaro be excluded from Canada.

As to Mr. Justice Marceau, he also set aside the decision rendered by the Appeal Division but, contrary to Mr. Justice Pratte, he referred the matter back to the Appeal Division in order for it to consider whether Mrs. De DeCaro should not be removed from Canada on compassionate or humanitarian grounds. Put another way, Mr. Justice Pratte was of the view that the Appeal Division did not have jurisdiction to hear Mrs. De DeCaro’s appeal whereas Mr. Justice Marceau was of the view that the Appeal Division did have such jurisdiction.

Mr. Justice Pratte’s reasons on the meaning of the words “in possession of a valid immigrant visa” appear at page 417 of his decision and are as follows:

Was the respondent, when she was the subject of the report under paragraph 20(1)(a), in possession of a “valid” visa? The word “valid” implies that a visa which is initially valid may subsequently cease to be so. Before her husband’s death, the respondent certainly held a valid visa even though, as I said, the visa was a conditional one; however, after that death it was impossible for the condition attached to the visa to be performed, so that the visa then ceased to have any validity. It was no longer, in my opinion, a “valid” visa.”

The applicant herein urges me to accept that point of view. On that point of view, the applicant submits that the respondent’s sponsor having died prior to the issuance of his visa, the visa was no longer valid. The applicant further submits that, consequently, when the respondent arrived in Canada, he was no longer in possession of a valid immigrant visa and, as a result, the Appeal Division could not hear his appeal under paragraph 70(2)(b) of the Act.

I now turn to the reasons given by Mr. Justice Marceau. At the outset, let me say that I prefer his reasons to those of Pratte J.A. Marceau J.A. begins his analysis by stating that the concepts of “valid visa” and “conditional visa” which appear in Pratte J.A.’s opinion, are not to be found in the Act and the Regulations. At page 419 of his reasons, Marceau J.A. writes as follows:

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 that the condition actually be met.

Marceau J.A. goes on to explain that the expression “valid visa” is usually used in the Act within the context of the phrase “valid and subsisting” which, in his view, can only mean that the visa has not expired. At page 419 of his reasons, he states:

Accordingly, neither the Act nor the Regulations, in which the word “valid” is encountered still more rarely (sections 14 [as am. by SOR/89-38, s. 2] and 50 [as am. idem, s. 22]), speaks of a valid visa in any sense other than that of an unexpired visa.

In reference to the concept of “conditional visa” Marceau J.A. states that that concept cannot be found in the Act or the Regulations. He states that the Act and the Regulations only contemplate terms and conditions in respect of the right of landing confirmed by the visa and not to the visa itself. Again, at page 420, he states:

In granting landing the officer imposes conditions which, if not eventually fulfilled, will lead to a report under paragraph 27(1)(b) of the Act.

He further states at page 420 that:

This idea of a visa issued conditionally, which automatically loses its effect simply because a condition is not performed or becomes impossible to perform, seems to me, with all due respect to my brother Judge, to be extraneous to the Act.

Marceau J.A. goes on to state that, in his view, the technique used to cover situations where there have been changes in the immigrant’s status between the time the visa was issued and the time that he or she arrives in Canada, is the one set out in section 12 of the Regulations.[3]

In Marceau J.A.’s view, the granting of an immigrant visa does not amount to the granting of landing. It simply means that the visa officer abroad was of the opinion that the applicant met the requirements of the Act and of the Regulations for admission to Canada. Notwithstanding, when the applicant arrives in Canada, he must satisfy the immigration officer that he is entitled to be admitted into the country. Section 12 of the Regulations imposes on the immigrant the obligation to establish, to the satisfaction of the immigration officer, that he meets the requirements of the Act, the Regulations and the requirements for the issuance of his visa. In so doing, the immigrant must disclose all changes to those facts which were relevant to the issuance of the visa which have taken place between the issuance of the visa and his arrival in Canada. Furthermore, the applicant must disclose all facts which were not disclosed at the time the visa was issued and which ought to have been disclosed to the visa officer abroad.

Marceau J.A. then points out that there is a discrepancy between the French and English versions of section 12 of the Regulations and that, in his view, the English version is preferable. He then concludes that part of his reasons by stating, at page 423, that:

In contrast, the English version, read literally, implies a perfectly logical system, in keeping with general principles and relatively easy to apply, as the underlying idea is simply that where a change occurs in facts which may have influenced the issuing of a visa, its holder at the point of entry must show that the change has not affected his or her ability to meet the requirements for granting the visa, so that, even if the change had occurred before the visa application was considered, it would not have caused the responsible officer to reject the application. Logic is preserved, the significance of granting the visa remains and the verification undertaken by the officer at the port of entry is limited to what is strictly necessary. [Emphasis is mine.]

Those are the reasons which led Marceau J.A. to, in effect, conclude that the Appeal Division acted within its jurisdiction when it heard Mrs. De DeCaro’s appeal. Although she was not admissible to Canada because she could not meet the requirements of section 12 of the Regulations, Mrs. De DeCaro was in possession of a valid immigrant visa when the removal order was made against her.

Although in the present case the respondent’s sponsor died before the visa was issued, I do not believe that that would affect Marceau J.A.’s reasoning as he clearly says, at page 423 of his reasons, that section 12 covers relevant facts which ought to have been disclosed at the time the visa was issued abroad. Again, the fact that the respondent has obtained a visa does not render him admissible into the country. The fact that an applicant has lied or deceived the authorities abroad may have a bearing on whether the Appeal Division is prepared to lift the removal order on the basis of compassionate or humanitarian considerations.

In the present matter, the Appeal Division concluded that there were sufficient humanitarian or compassionate grounds to lift the removal order made against the respondent. The Appeal Division reached this conclusion for the following reasons:

i) when he applied for permanent residence, the respondent met the criteria for sponsorship;

ii) because of his “impending immigration and his expectation that he would be joining his family in Canada to make a new home, Mr. Bruan took irrevocable steps to bring his life in the Philippines to a conclusion”;

iii) since his arrival in Canada, the respondent, who is unable to work in Canada, has done volunteer services in Winnipeg helping mentally retarded and physically impaired persons;

iv) the respondent was honest and truthful throughout and believed that the death of his mother was not relevant to his admission since his sister continued to support his application.

I now turn to the second Federal Court of Appeal decision, Minister of Employment and Immigration v. Wong. The facts of the case were that a Canadian citizen agreed to sponsor her father and sister, the latter as the father’s single dependent daughter. The father and sister were interviewed in Hong Kong but, before their visas were issued, the father died. Neither the sponsor nor the sister informed the Canadian authorities in Hong Kong of the father’s death and, as a result, visas were issued to the father and sister. When the sister arrived in Canada, she lied to the immigration officer. However, in due course, the father’s death certificate was provided to the authorities.

Following an inquiry, the daughter was excluded from Canada. The daughter appealed the adjudicator’s decision to the Appeal Division which held that it had jurisdiction to hear the appeal since, at the time of landing, the daughter was in possession of a valid immigrant visa. The Appeal Division then went on to hold in her favour on compassionate or humanitarian grounds. The Minister sought judicial review of the Appeal Division’s decision on the jurisdiction point only. The Federal Court of Appeal allowed the appeal and set aside the Appeal Division’s decision on the ground that it lacked jurisdiction. The Court’s reasons were given by Mr. Justice MacGuigan who, at page 238, stated:

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 dependent daughter was in possession of a valid immigration 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 (A-916-90), decided March 1, 1993. 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”.

The applicant submits that that decision cannot be distinguished from the present matter. On the other hand, the respondent submits that the Court of Appeal’s decision in Wong is not binding since the respondent (Mrs. Wong) did not appear at the hearing before the Court of Appeal nor did she offer any arguments. As a result, the Court did not have the benefit of arguments in opposition to those offered by the Minister.

Neither Wong nor De DeCaro were concerned with the death of a sponsor. In De DeCaro there had been an independent application by Mr. DeCaro and, following his successful application, a visa was issued to his wife because she was an “accompanying dependant”. In Wong, there was a sponsorship application on behalf of Mrs. Wong and her father. Mrs. Wong had been issued a visa in the category of the father’s single dependent daughter. Although the facts in those cases differ from the facts in the case at bar, I am of the view that the Court of Appeal’s decisions, and more particularly the decision in Wong, cannot be distinguished.

Although I prefer the reasons given by Marceau J.A., I am of the view that I am bound to follow the reasoning of Pratte J.A. and more so that of MacGuigan J.A. to the effect that where, as here, the principal reason for the issuance of the visa ceases to exist prior to the issuance thereof, the visa “cannot be said to be” a “valid immigrant visa”. It goes without saying that when MacGuigan J.A. gave his reasons in Wong, he was aware of Marceau J.A.’s reasons.

There is further support for the point of view expressed by Justices Pratte and MacGuigan in another Federal Court of Appeal decision, namely Minister of Employment and Immigration v. Gudino, [1982] 2 F.C. 40 The facts were that an immigrant applied for permanent residence. As a result of, inter alia, an offer of employment from an airline company in Canada, the immigrant obtained sufficient points to entitle him to permanent resident status.

Prior to the issuance of his visa, the immigrant lost his employment with the airline company. Upon issuance of the visa, the visa officer was unaware that the immigrant had lost his employment and the immigrant did not volunteer the information. On the day of the issuance of the visa, the visa officer was advised that the immigrant was no longer employed. On the following day, the immigrant was advised by telephone by the visa officer that his visa was no longer valid and that he should not proceed to Canada.

Notwithstanding, the immigrant flew to Canada and was admitted on the basis of his visa. At the point of entry, the immigrant did not inform the immigration officer of the loss of his employment prior to the issuance of his visa nor that he had been advised abroad that his visa was no longer valid and that he could not enter Canada.

The principal issue for determination was whether the immigrant was a person described in paragraph 27(1)(e) of the Act [Immigration Act, 1976, S.C. 1976-77, c. 52] i.e. a permanent resident who was granted landing by reason of improper means.

In the course of his reasons for judgment, Heald J.A. made the following statement at pages 43-44:

The principal thrust of the respondent’s submission on the issue as to whether or not he used improper means to obtain landing as a permanent resident was to the effect that the visa officer acted without authority in advising the respondent on January 24, 1978 in the telephone conversation referred to supra that the visa was no longer valid and that he should not proceed to Canada. Respondent’s counsel bases this submission upon his view that the question of employment or non-employment is not a material fact and that even if the respondent had disclosed the fact that his employment status had changed, the officer at the port of entry would have been required to land the respondent upon presentation of the visa. Counsel’s submission was that when respondent achieved the assessment quota, he became entitled to the issuance of the visa and there was no power in the visa officer in Mexico City to cancel the visa or to advise the respondent that it was cancelled, since the visa officer was functus officio once he had issued the visa.

I do not agree with these submissions. The Immigration Act, R.S.C. 1970, c. I-2, and the Regulations thereunder required that every person applying for admission to Canada as a permanent resident be in possession of a “valid and subsisting immigrant visa” (see Immigration Regulations, Part I, subs. 28(1) [SOR/62-36 as amended]). In my view, it is a necessary implication from the use of the words “valid and subsisting” that a visa can be revoked or become invalid by reason of a change in circumstance. Respondent’s counsel, however, submits that the change must be a “material change” and that material changes are only those changes which might result in an immigrant otherwise admissible under section 5 of the Immigration Act of 1970, becoming inadmissible under that section.

I think this submission may well result in an interpretation of “change of circumstances” which is too restrictive. However, on the facts of this case, the fact of loss of employment had the effect of altering respondent’s status from one who was eligible to one who was not eligible for permanent residence. Without the points awarded to him for his “arranged employment" he did not have enough points to qualify for permanent residence. Accordingly, he would become inadmissible under paragraph 5(t) of the old Act which declared inadmissible:

5. …

(t) persons who cannot or do not fulfil or comply with any of the conditions or requirements of this Act or the regulations or any orders lawfully made or given under this Act or the regulations.

Although no issue was raised in that case with respect to the jurisdiction of the Appeal Division, Heald J.A. made it abundantly clear that a visa could be revoked or become invalid due to a change of circumstances. Heald J.A.’s reasons are, in my view, in line with the reasons given by Pratte J.A. and MacGuigan J.A. in De DeCaro and Wong.

I am therefore of the view that the Appeal Division erred in law in concluding that it had jurisdiction to hear the respondent’s appeal.

For these reasons, the applicant’s application for judicial review must be allowed. The matter will be referred back to the Appeal Division for reconsideration in the light of these reasons.

At the end of the hearing, counsel for the respondent, pursuant to section 83 [as am. by S.C. 1992, c. 49, s. 73] of the Act, submitted that I should certify the following question as being a serious question of general importance:

Under what circumstances, if any, does an otherwise valid visa cease to be valid and does it include a change of circumstances as in this case or as in the Wong case?

I do not consider this question to be a serious question of general importance. What constitutes a change of circumstances that will render a valid visa invalid must be determined in each case by the trier of facts.

The issue sought to be resolved by the proposed question has already been decided, in my view, by the Court of Appeal in De DeCaro and Wong.

In the case at bar, what the respondent is seeking, in effect, is to have the Court of Appeal reexamine De DeCaro and Wong. Unfortunately for the respondent, these decisions cannot be distinguished and they are therefore determinative of the issue herein.

As I have already indicated, were I free to decide this issue, I would have followed the reasoning of Marceau J.A. However, that door is not open to me.

Consequently, I will not certify the proposed question.

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