Judgments

[1996] 2 F.C. 410

A-242-93

Minister of Employment and Immigration (Appellant) (Respondent)

v.

Sonny Dass (Respondent) (Applicant)

Indexed as: Dass v. Canada (Minister of Employment and Immigration) (C.A.)

Court of Appeal, Stone, Strayer and MacGuigan JJ.A.—Ottawa, February 7 and 15, 1996.

Citizenship and Immigration — Status in Canada — Permanent residents — Order in Council granting exemption from requirement of Act, s. 9(1), requiring application for landing and permanent residency be made outside Canada, not same as granting of permanent residence — When, after exemption obtained, applicant for landing convicted of criminal acts covered by Act, s. 19(1)(c), Minister cannot be ordered to grant landing or to continue processing landing application — F.C.A. decision in Sivacilar v. M.E.I. considered, restricted in application to particular facts.

The respondent, a Trinidadian, entered Canada as a visitor and married a Canadian citizen shortly thereafter. In April 1989, he requested an exemption under subsection 114(2) of the Immigration Act, on compassionate and humanitarian grounds, from the provisions of subsection 9(1) of the Immigration Act in order to be allowed to apply for landing from within Canada. In May 1989, a report was sent to the Governor in Council recommending that the application be granted, with the mention: “Appears to meet requirements. Landing is recommended.”

An order in council granting him an exemption was issued in April 1990. In November, 1989 he had been involved in a domestic dispute which resulted in the laying of four criminal charges punishable by a sentence of up to 10 years imprisonment. In March, 1991 he was convicted on all four counts. As a result, respondent was rendered inadmissible under paragraph 19(1)(c) of the Immigration Act. In January 1992, the respondent was advised that the Department was unable to continue processing his application for landing. The respondent applied for certiorari to quash this “decision”, and for mandamus requiring the Minister to issue documents “showing the applicant has permanent residence”. The Trial Division reached the conclusion that because of the wording of the request for an order in council, the Department had already determined that, at that time, he was entitled to landing, subject only to the decision of the Governor in Council. Both certiorari and mandamus were granted. The parties understood this as requiring the Minister to grant landing without further consideration. This was an appeal from that decision on the basis that no decision as to landing has ever been taken with respect to the landing of the respondent who has thus never acquired the right to be landed.

Held, the appeal should be allowed.

Some of the uncertainty as to the application of the law in this sort of factual situation has resulted from the 1984 decision of this Court in Sivacilar v. Minister of Employment and Immigration. In that case, following a request “for authority to admit the applicant notwithstanding subsection 9(1)”, with the comment “all other requirements have been met”, an order in council was issued. Shortly thereafter, the wife withdrew her sponsorship of the application for landing. The Court concluded that by virtue of the order in council, the applicant had acquired the right to be landed, nothing remained to be done in granting of landing and the withdrawal of the wife’s sponsorship was without effect. That case seems to have turned on a finding of fact that in the circumstances, the Governor in Council had granted authority, not just for the applicant to apply from within Canada, but for his landing. In the present case, the request was for permission to apply for landing from within Canada. The request neither sought authority to admit the applicant for landing nor did the Governor in Council purport to authorize or grant landing as such. Also, shortly after the decision in Sivacilar , the Supreme Court of Canada in Jimenez-Perez v. Minister of Employment and Immigration, expressly found that the application for landing is separate and distinct from the application for exemption. As stated by the Trial Division in Ho v. Can. (Min. of Employment & Immigration), the Sivacilar case stands only for the proposition that an order in council granting an exemption does not confer landed status, but merely recognizes the applicant’s right to perfect his application from within Canada, and the Minister can be directed to process that application “in accordance with existing law and regulations”.

The following basic propositions were restated:

(1) The only authority given to the Governor in Council by subsection 114(2) of the Immigration Act is to exempt individuals from certain requirements or to facilitate their admission. (2) The Governor in Council has no specific authority to grant landing. (3) An application for landing, if made from within Canada, cannot be considered officially until an exemption had been granted by the Governor in Council from the requirements of subsection 9(1). (4) Under the scheme of the Immigration Act at the relevant time, it was an immigration officer or a senior immigration officer who could grant landing, not the Governor in Council, and they might do so only when satisfied that it would not be contrary to the Act or Regulations to grant landing. Furthermore, a decision is taken to have been made when notice thereof is given to the parties affected with some measure of formality (a written record of landing). Administrative correspondence is irrelevant. It is inappropriate for a court to go through the file and determine that at a certain point all requirements for landing had been met and therefore a decision to grant landing must be taken to have been made at that time. Any new circumstance, such as a serious criminal conviction, can be taken into account at any time up to when a decision concerning the grant of landing is actually made and communicated to the applicant. (5) It is of no legal consequence that immigration officers make a preliminary assessment of the merits of an application for landing and do not normally recommend an exemption be granted until they consider that the application is likely to succeed once an exemption is granted.

In the case at bar, no decision granting the respondent landing has ever been taken and it is not for the Court to determine that the requirements have been met. Nor is it for the Court to order the Minister to grant a record of landing or even require him to continue processing the landing application when the Immigration Act appears to prohibit such steps in the face of the applicant’s criminal convictions.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Immigration Act, R.S.C., 1985, c. I-2, ss. 5(2), 9(1), 14(2), 19(1)(c) (as am. by S.C. 1992, c. 49, s. 11), 23(2), 27 (as am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 4), 114(2) (as am. by S.C. 1992, c. 49, s. 102).

Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 9(1), 27(2), 115(2).

Immigration Visa Exemption Regulations No. 7, 1990, SOR/90-252.

CASES JUDICIALLY CONSIDERED

APPLIED:

Minister of Employment and Immigration et al. v. Jiminez-Perez et al., [1984] 2 S.C.R. 565; (1984), 14 D.L.R. (4th) 609; [1985] 1 W.W.R. 577; 9 Admin. L.R. 280; 56 N.R. 215; confg Jiminez-Perez v. Minister of Employment and Immigration, [1983] 1 F.C. 163 (1982), 45 N.R. 149 (C.A.); Ho v. Can. (Min. of Employment & Immigration) (1986), 47 Alta. L.R. (2d) 82; 6 F.T.R. 78 (F.C.T.D.).

CONSIDERED:

Sivacilar v. Minister of Employment and Immigration (1984), 57 N.R. 57 (F.C.A.).

REFERRED TO:

Escamilla v. Canada (Solicitor General), [1993] F.C.J. No. 869 (T.D.) (QL); Ferrerya v. Minister of Employment and Immigration (1992), 56 F.T.R. 270 (F.C.T.D.); Nagra v. Canada (Minister of Employment and Immigration), [1996] 1 F.C. 497(C.A.); Gomez v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1373 (T.D.) (QL); Hinson v. Minister of Citizenship and Immigration (1994), 85 F.T.R. 44; 26 Imm. L.R. (2d) 40 (F.C.T.D.); Bhatnager v. Minister of Employment and Immigration, [1985] 2 F.C. 315(T.D.).

APPEAL from an order of the Trial Division (Dass v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 337 (1993), 59 F.T.R. 312) granting certiorari to quash a decision of an immigration officer not to process further the respondent’s application for permanent residence, and mandamus to require the Minister to process the application “for landing and permanent residency while the applicant remains in Canada”. Appeal allowed.

COUNSEL:

Brian H. Hay for appellant (respondent).

David Matas for respondent (applicant).

SOLICITORS:

Deputy Attorney General of Canada for appellant (respondent).

David Matas, Winnipeg, for respondent (applicant).

The following are the reasons for judgment rendered in English by

Strayer J.A.:

Relief Requested

The Attorney General appeals from an order of the Trial Division of February 25, 1993 [[1993] 2 F.C. 337 which granted certiorari to quash a decision of an immigration officer not to process further the respondent’s application for permanent residence, and mandamus to require the Minister of Employment and Immigration to process the respondent’s application “for landing and permanent residency while the applicant remains in Canada”.

Facts

The respondent entered Canada as a visitor on December 6, 1988. On March 31, 1989 he married a Canadian citizen. The following month, on April 9, 1989 he requested an exemption from the requirement of subsection 9(1) of the Immigration Act [R.S.C., 1985, c. I-2] which required that he apply for landing for permanent residence from outside Canada. On April 19, 1989 he completed an application form for permanent residence. On May 18, 1989 he was advised that the Employment and Immigration Commission was prepared to request the Governor in Council to exempt him from subsection 9(1), but was warned not to take any “irreversible steps towards [his] proposed migration” until the Governor in Council granted the exemption and he had “satisfied all the immigration criteria”.

A request form was sent by an officer of the Canada Immigration Centre, Winnipeg on May 29, 1989 to Ottawa specifically requesting only one thing: approval of the Governor in Council of an exemption for the respondent from the requirement of subsection 9(1) that he apply from outside Canada for permanent residence. That request form also summarized his history and ended with the words:

Appears to meet requirements. Landing is recommended.

This was signed by S. Luhowy, an immigration officer.

As a result of a domestic dispute on November 11, 1989, the respondent was charged on four counts, two at least involving a possible sentence of 10 years imprisonment.

On April 26, 1990 the Governor in Council by Order in Council P.C. 1990-748 [Immigration Visa Exemption Regulations No. 7, 1990, SOR/90-252] specifically exempted the respondent from one requirement of the Act only, namely that of subsection 9(1).

On March 20, 1991 the respondent was convicted on all four of the counts referred to above. On December 30, 1991, the Deputy Minister, acting on a report under section 27 [as am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 4], ordered an inquiry under subsection 27(3) as to whether the respondent, by reason of his conviction, was a member of an inadmissible class. One of the provisions of the Act invoked was paragraph 19(1)(c) [as am. by S.C. 1992, c. 49, s. 11] which renders inadmissible those convicted in Canada of offences carrying a maximum sentence of 10 years or more. This particular procedure applied only to those who are not Canadian citizens or permanent residents.

On January 2, 1992 the respondent was advised by an immigration counsellor that due to the convictions and the pending inquiry the Commission was unable to continue processing his application for landing.

The respondent applied for certiorari to quash this “decision” of January 2, 1992 not to continue processing his application for landing, and for mandamus to require the Minister to issue the necessary documents “showing the applicant has permanent residence”.

In the Trial Division, the Trial Judge reached the conclusion that because of the wording for the request for an order in council the Department had already determined that at that time he was entitled to landing, subject only to the decision of the Governor in Council. He therefore issued certiorari as requested, and mandamus requiring the Minister to process the application for landing. The parties understand this to require the Minister to grant landing without further consideration.

The Attorney General appeals on the basis that no decision as to landing has ever been taken with respect to the landing of the respondent who has thus never acquired the right to be landed. He argues that therefore the learned Trial Judge should not have quashed the decision not to process further the application pending the inquiry under section 27 nor should he have ordered the Minister to grant landing to a person who, as it now appears, is legally inadmissible by reason of having committed serious criminal offences in Canada prior to becoming a permanent resident. It is argued that to force the Minister to grant landing in such circumstances is to force him to violate the Immigration Act.

Analysis

This case is one of a series involving essentially similar facts: namely, an alien enters Canada as a visitor, then applies (usually after marrying a Canadian) for landing. His application is processed up to a point and a request is made to the Governor in Council for an order under subsection 114(2) [as am. idem, s. 102] of the Immigration Act exempting the applicant from the requirement of subsection 9(1) that governs every alien seeking landing, namely that he apply for a visa before arriving in Canada. In the normal course of events an order in council is issued exempting the applicant from the requirements of subsection 9(1). It appears that in most cases the landing application is then further processed with an immigration officer ultimately granting landing by means of a record of landing signed by the immigration officer and delivered to the applicant. In the problem cases, of which this is an example, some new circumstance arises after the order in council but before the record of landing is issued, such as the withdrawal of sponsorship by the spouse or the criminal conviction of the applicant. There is then an assertion by the applicant that as the order in council has been adopted he has already been granted landing and later events are of no relevance to landing.

Some of the uncertainty in this field, and the variety of decisions in the Trial Division which reflect the difficulties involved, relate to a 1984 decision of this Court in Sivacilar v. Minister of Employment and Immigration.[1] The actual issue in that case was the validity of a departure notice. However the background facts were in some respects similar to the present case. The applicant entered Canada as a visitor in July, 1981, married a Canadian after two months, and one month later filed an application for permanent residence sponsored by his wife. In July, 1982 a report was made to the Deputy Minister under subsection 27(2) [Immigration Act, 1976, S.C. 1976-77, c. 52] with respect to his removal for having worked without a permit but the Deputy Minister did not order an inquiry. Subsequently a request was made to the Governor in Council for an exemption under subsection 9(1), a request which contained the comments that “all other requirements have been met”. The order in Council was issued on August 10, 1983 and then the wife withdrew her sponsorship. He was then advised that his application for permanent residence must be refused, and an inquiry was launched under section 27 reviving the allegations of July, 1982, this resulting in a departure notice being issued. The Court concluded that by virtue of the order in council the applicant [at page 59]:

… had acquired the right to be landed and nothing remained to be done in the granting of landing to him. His wife’s subsequent purported withdrawal of the sponsorship was accordingly without effect.

The departure notice was therefore set aside.

Considering that this case has been cited frequently in the jurisprudence in the Trial Division including in the decision under appeal, it requires some comment by way of distinguishing it from the circumstances of the present case.

Firstly I would observe that the case seems to have turned on a finding of fact that in the circumstances of that case the Governor in Council had granted authority, not just for the applicant to apply from within Canada, but for his landing. At page 59 the Court stated, in referring to the request for an order in council submitted to the Governor in Council by the immigration officer:

The document is a request for authority to admit the applicant notwithstanding subsection 9(1). Upon the adoption of the order in council P.C. 1983-2469, the applicant became a person with the right to come into or remain in Canada.

I do not know the details of the document the Court had before it in that case but it is not possible in the present case to characterize the request to the Governor in Council as “a request for authority to admit the applicant notwithstanding subsection 9(1)”. In the present case the form, signed by an immigration officer on May 25, 1989 states as follows:

I recommend that authority be sought from the governor-in-council on behalf of the person (s) listed in part A above to waive the requirements of the Immigration Act 9(1).

The resulting Order in Council simply states:

3. Subsection 9(1) of the Act does not apply to an immigrant whose name appears in the schedule.

The respondent’s name appears in that schedule amongst those of some 1,210 applicants. It is therefore apparent that in the present case the request neither sought authority to admit the applicant for landing nor did the Governor in Council purport to authorize or grant landing as such. The effect of exempting the applicant from subsection 9(1) was simply to permit him to apply for landing from within Canada.

Secondly, it is important to note the context in which the Sivacilar decision was made. At that time it had only been confirmed some two years previously, in 1982, by the decision of the Federal Court of Appeal in Jiminez-Perez v. Minister of Employment and Immigration[2] that subsection 114(2) [then s. 115(2) of Immigration Act, 1976] could be used to grant an individual exemption from the requirement that an alien apply from abroad for landing. In concluding that subsection 114(2) could be used for this purpose and that the Minister and his officials had an obligation to consider that possibility the Court stated that:

… it is not sound to separate the application for landing from the request for exemption.[3]

However on appeal the Supreme Court [[1984] 2 S.C.R. 565], while generally upholding the substance of the decision of the Federal Court of Appeal, noted that before the Supreme Court the respondents had conceded that landing could not lawfully be granted until and unless an exemption had been obtained under subsection 114(2). Therefore the Immigration Appeal Board could not in that case consider whether landing should be granted because no exemption had yet been granted. As the Court stated:

It follows that there is as yet no landing application to be sponsored. The application for landing from within Canada and the sponsorship application should be considered and adjudicated upon if and when the exemption sought by the first application is granted, subject to such rights of appeal as may be given by the Act.[4]

It will be noted that this judgment was delivered about one month after the Federal Court of Appeal decision in Sivacilar. If Sivacilar were thought to mean that a landing application could be legally considered and approved by an immigration officer prior to an exemption being granted by the Governor in Council the later Supreme Court decision in Jiminez-Perez indicates the contrary.

Thirdly, Sivacilar has been interpreted on several occasions[5] in a manner inconsistent with the judgment now under appeal. In one of these cases, Ho v. Can. (Min. of Employment & Immigration), the Associate Chief Justice in following the Sivacilar case confirmed that the order in council granting an exemption had not conferred landed status, but that in the circumstances the applicant had the right to perfect his application from within Canada and mandamus was issued directing the Minister to process such application from within Canada “in accordance with existing law and regulations”. I respectfully agree that the Sivacilar case cannot, in principle, stand for any more than that. But it will be noted in the present case that the order of the Trial Division requires the Minister to process the application without qualification and without regard to the fact that this may be contrary to the Immigration Act.[6] As noted earlier, the parties both understand this order to be a requirement of favourable processing, that is it is an order of mandamus requiring that landing be granted just as requested in the original notice of motion.

Given the diversity of jurisprudence on this subject it might be helpful to restate a few basic propositions.

(1) The only authority given under subsection 114(2) of the Immigration Act to the Governor in Council is to exempt individuals from certain requirements or facilitate their admission. The only action requested, and the only action taken, in any of the cases under discussion including the case under appeal, was the granting of an exemption from the requirements of subsection 9(1) which requires aliens to apply for landing before entering Canada.

(2) The Governor in Council has no specific statutory authority to grant landing. Whether such a grant would be possible under subsection 114(2) is debatable and is of no relevance since no such action was requested or purportedly taken in any of these cases.

(3) As pointed out by the Supreme Court in the Jiminez-Perez case, an application for landing, if made from within Canada, cannot be considered officially until an exemption has been granted by the Governor in Council from the requirements of subsection 9(1). It is therefore a legal impossibility to say that a decision has been taken granting landing, or that final consideration has been given by the appropriate officials to the grant of landing, prior to the grant of an exemption by order in council which renders the application a valid application.[7]

(4) Under the scheme of the Immigration Act at the relevant time it was an immigration officer acting pursuant to subsection 14(2), or a senior immigration officer acting pursuant to subsection 23(2), who could grant landing to an immigrant, not the Governor in Council, and they might do so only when

… satisfied that it would not be contrary to this Act or the regulations to grant landing ….

I see no reason to depart from the normal requirements of administrative law that a decision is taken to have been made when notice of that decision is given to the parties affected with some measure of formality.[8] Judicial review cannot be sought of decisions until they have been formulated and communicated to the parties affected. Why should the courts take it upon themselves to examine the interdepartmental and intradepartmental correspondence to determine if and when a decision, though never communicated, was indeed taken? A court would certainly not entertain an argument by the Minister that notwithstanding the communication of a favourable decision to an applicant the Minister is not bound by it because previously there had been an internal, interim, uncommunicated decision to the opposite effect. Why then should we reverse a communicated decision of a negative sort in favour of an uncommunicated tentative, internal but favourable assessment? This is, after all, institutional decision-making of a multifaceted nature involving the collection of information from many sources, some of which are not under the control of the Minister or indeed of Canada. I therefore think it inappropriate for the Court to go through the file and determine for itself that at a certain point all requirements had been met for landing and therefore a decision to grant landing must be taken to have been made at that time. Instead it appears to me that the appropriate procedure, and one which is normally followed, is that when a favourable decision has been made to grant landing a written record of landing, signed by an immigration officer as authorized by subsection 14(2) of the Act, is delivered to the applicant.[9] There was no such document delivered in this case. If, of course, the decision is negative that too should be considered made when communicated in a definitive manner to the applicant. Nor can I find any provision in the Act for a cut-off date beyond which an immigration officer should ignore a change of circumstances. It follows that any new circumstance, such as a serious criminal conviction, can be taken into account at any time up to when a decision concerning the grant of landing is actually taken and communicated to the applicant.

This is not to say that the officials may make unlawful decisions without review, or delay indefinitely making a decision. A decision once communicated may be open to attack on judicial review. And if there is undue delay in processing an application for landing it is always open to the applicant to apply for mandamus, not to require a specific decision but rather to require that a decision be taken.[10]

(5) It is of no legal consequence that immigration officers make a preliminary assessment of the merits of an application for landing and, it appears, do not normally recommend an exemption be granted by the Governor in Council until they consider that the application is likely to succeed once an exemption is granted. The fact that such early consideration is normally given to the merits of an application is recounted in the regulatory impact analysis statement pertinent to subsection 9(1) of the Immigration Act.[11] Counsel for the respondent vainly sought to establish from that description of this process the conclusion that a legally binding decision to grant landing is made prior to the submission to the Governor in Council. The impact statement, which in any event is not part of the Regulations, conveys no such meaning. As information must be gathered from various sources, it accords with common sense and good administration that the assessment process begin as soon as possible. Common sense would also dictate that patently futile applications for landing not be the subject of a request to the Governor in Council for an order in council. But the words employed on the form requesting the order in council, even when those words express support for the substance of the application, are neither intended to, nor can they legally, constitute a decision of an immigration officer under subsection 14(2). I regret to say that a good deal of ink has been unnecessarily spilled on the subject of the tenor of the comments on that form as if they had determinative effect.

Applying these principles to the present case, there has never been any decision communicated to the applicant other than the letter of January 2, 1992 advising him that, because of his convictions and the pending inquiry, his application for permanent residence would not be processed any further. For the reasons given I am satisfied that no decision granting him landing has ever been taken and it is not for the Court to determine that the requirements for landing have been met. Nor is it for the Court to order the Minister to grant a record of landing or even require him to continue processing the landing application when the Immigration Act appears to prohibit such steps in the face of the criminal convictions of the applicant.

Disposition

The appeal should therefore be allowed and the order of the Trial Division set aside. As the appellant does not seek costs if successful none should be awarded.

Stone J.A.: I agree.

MacGuigan J.A.: I agree.

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