Derek D. Martin (Appellant)
v.
Minister of Manpower & Immigration (Respond-
ent)
Court of Appeal, Thurlow and Pratte JJ., Perrier
D.J.—Montreal, P. Q., June 29, 1972.
Immigration—Deportation order—Refusal of Immigration
Appeal Board to grant special relief—Appeal from—Wheth-
er Board took account of other than compassionate and
humanitarian consideration—Findings of fact—Whether
grounds for reversal—Immigration Appeal Board Act,
R.S.C. 1970, c. I-3, s. 15(1)(b)(ii).
M, a musician and a United States citizen, was married to
a Canadian citizen in Montreal in 1965 and lived there with
his wife and child until 1967 when he was ordered deported
for lack of certain documents required by the Immigration
Regulations. His wife and child remained in Canada, and M
returned here from time to time. In 1970, he was again
ordered deported on the ground of the earlier deportation
and lack of consent by the Minister under section 35 of the
Immigration Act to his admission to Canada. The Immigra
tion Appeal Board on appeal declined to grant M special
relief under section 15 of the Immigration Act, stating that
it had serious doubts as to his credibility, good faith and
sense of responsibility, that his separation from his family
was due to the nature of his work and would not be solved
by the granting of special relief, and that in any event his
wife could sponsor him for entry into Canada under section
31 of the Act.
Held, dismissing Ms appeal, in declining to grant M
special relief under section 15(1) of the Immigration Appeal
Board Act the Board did not exceed its jurisdiction under
subsection (1)(b)(ii) to take account only of compassionate
or humanitarian considerations. All the matters considered
by the Board were relevant to determine whether compas
sionate or humanitarian considerations existed, and
although the Court might not agree with the Board's find
ings of fact there was insufficient ground for reversing
them.
Boulis v. Minister of Manpower & Immigration (which
was decided by the Supreme Court of Canada on
March 30, 1972), discussed.
APPEAL from Immigration Appeal Board.
M. Riback, Q.C. for appellant.
G. R. Leger for respondent.
THURLOW J.—The appellant is a citizen of
the United States. He was born in 1938, had a
grade 8 education and thereafter earned his
living as a musical entertainer. He entered
Canada sometime in the year 1964 and in
November of the following year was married at
Montreal to a Canadian citizen. In 1966 a child
of the marriage was born in Canada. In June
1967, when the appellant and his wife and child
were living in Montreal, where the wife and
child still reside, the appellant and his wife went
to Immigration authorities in search of a way by
which his presence in Canada might be legiti
mized, and some forms were completed but the
result was that he was ordered to be deported
on the grounds that he was not in possession of
a letter of pre-examination and a medical cer
tificate as required by the Immigration Regula
tions. The appellant did not appeal from the
deportation order but, following his deportation,
he returned to Canada from time to time and on
one of such occasions, early in 1970, he was
apprehended by police at Montreal. On Febru-
ary 2, 1970, following a special inquiry, a
second deportation order was made against him
based on the earlier deportation and the lack of
the consent of the Minister under section 35 of
the Immigration Act to his being admitted to or
permitted to remain in Canada. The appellant
thereupon appealed to the Immigration Appeal
Board which heard his appeal on June 7, 1971,
and dismissed it on July 5, 1971. At the same
time, the Board declined to grant special relief
under section 15 of the Immigration Appeal
Board Act and directed that the deportation
order be executed as soon as practicable. Writ
ten reasons for this judgment were given by the
Board on or about August 24, 1971.
Thereafter the appellant was granted leave to
appeal to this Court and now appeals, not on
the ground that the deportation order was not
validly made, but on the ground that the Board
erred in declining to grant relief therefrom
under section 15(1)(b)(ii) of the Immigration
Appeal Board Act. More specifically, the deci
sion was attacked on the ground that the Board
improperly applied criteria of its own for deter
mining whether the appellant should be permit-
ted to remain in Canada instead of or in addi
tion to the considerations prescribed by section
15 of the Act and that the Board's findings were
erroneous.
Section 15(1) of the Immigration Appeal
Board Act provides as follows:
15. (1) Where the Board dismisses an appeal against an
order of deportation or makes an order of deportation
pursuant to paragraph 14(c), it shall direct that the order be
executed as soon as practicable, except that the Board may,
(a) in the case of a person who was a permanent resident
at the time of the making of the order of deportation,
having regard to all the circumstances of the case, or
(b) in the case of a person who was not a permanent
resident at the time of the making of the order of deporta
tion, having regard to
(i) the existence of reasonable grounds for believing
that if execution of the order is carried out the person
concerned will be punished for activities of a political
character or will suffer unusual hardship, or
(ii) the existence of compassionate or humanitarian
considerations that in the opinion of the Board warrant
the granting of special relief,
direct that the execution of the order of deportation be
stayed, or quash the order or quash the order and direct the
grant or [sic] entry or landing to the person against whom
the order was made.
The jurisdiction of the Board under this sec
tion has frequently been referred to as its
"equitable" jurisdiction, possibly because it is a
jurisdiction to relieve the harshness which the
strict application of the Immigration Act may
occasion in particular cases. To call this juris
diction "equitable" is no doubt convenient but
the use of that expression should not be allowed
to cloud the fact that the powers conferred by
section 15 are statutory and are thus governed
by the language of the statute itself. There is
therefore no necessary resemblance between
the principles to be applied under this section
and the principles of equity which were devel
oped with respect to property rights over a long
period of time in courts of equity in England
and in this country. Rather what appears to me
to be required of the Board is that, within the
limits of the powers conferred, it have a look at
the broad humanitarian aspects involved in the
deportation of the person concerned from this
country and determine whether they warrant a
departure from the course which the rules of
the Immigration Act would impose.
The precise question posed for the Board is,
however, not the same for all cases arising
under this section, because the statute itself
distinguishes between them. Thus the Board's
authority to grant relief in cases concerning
permanent residents, which fall within para
graph (a) of section 15(1), is to be exercised
"having regard to all the circumstances of the
case", whereas in cases of persons who are not
permanent residents, which fall within para
graph (b), the exercise of the Board's authority
is dependent upon (1) the existence of reason
able grounds for believing that if execution of
the order is carried out the person concerned
will be punished for activities of a political
character or will suffer unusual hardship, or (2)
the existence of compassionate or humanitarian
considerations that in the opinion of the Board
warrant the granting of special relief. It is also
to be noted that under (1) only the result to the
person to be deported is involved whereas
under (2), the scope is not similarly restricted,
but may embrace as well compassionate or
humanitarian considerations from the point of
view of others as well, the test being whether
such considerations in the opinion of the Board
warrant the granting of special relief. It seems
to follow that criteria which may be relevant
under section 15(1)(a) will not necessarily be
relevant under section 15(1)(b), or vice versa,
and that it is necessary to examine each case
presented, not on the basis of general consider
ations applicable to all cases, but from the point
of view of the applicability of the particular
provision to particular situations as they arise.
The appellant's case fell for consideration
solely under section 15(1)(b)(ii) and, as I view
it, posed for the opinion of the Board the ques
tion whether the compassionate or humanitarian
considerations which were involved with
respect to the appellant, his wife and his child,
in enforcing the order at the expense of separat
ing the appellant from his wife and son, or of
compelling the wife and son to leave Canada in
order to reside with him in whatever other
country might admit them, warranted the grant
ing of special relief. If so, the Board was
authorized to grant relief of the kind provided
for, which might have been anything from a
mere stay of execution to an outright quashing
of the deportation order and a grant of entry or
landing. It might, for example, in a case such as
this, have consisted of a stay for a period suffi
cient to enable the appellant to obtain the docu
ments the lack of which resulted in his deporta
tion in 1967. Thereafter the Board would have
had power to review the matter and deal with it
under subsections (3) and (4) of section 15.
The Board commenced its discussion with
respect to the exercise of its section 15 powers
with the following general statement:
As to its equitable jurisdiction under section 15 of the
Immigration Appeal Board Act, the Court considers that the
special relief, therein provided, is in fact an exception to the
Immigration laws and regulations and indeed a privilege
which can benefit the appellant by mitigating the rigidity of
the law under justifiable circumstances more particularly
set forth in section 15. The very nature of section 15 with
its extensive powers of suspending the application of the
Immigration laws and regulations must be exercised by the
Court most judiciously if these laws which were passed by
Parliament for a specific purpose are to continue to have
force of law.
Among the general criteria that have been considered by
the Court as being essential in a judicious exercise of its
equitable jurisdiction under section 15 is, on the one hand,
the credibility, the good faith and a normally responsible
attitude of the appellant and on the other hand the existence
of a serious immigration problem with compassionate and
humanitarian overtones, an adequate solution of which is
not already provided for in the law itself.
The Board then proceeded to find (1) that it
entertained serious doubts as to the appellant's
credibility; (2) that the appellant's good faith
could also be questioned; (3) that the appel
lant's attitude in relation to his status in Canada,
and even with regard to his application for his
wife's immigrant visa in the United States,
could not be considered normally responsible
and (4) that the separation of the appellant's
family was due not so much to a problem of
immigration as to the nature of the appellant's
employment and that the granting of special
relief was not likely to solve the appellant's and
his family's problem. In each case the Board
cited excerpts from the evidence in support of
its finding. I shall return to these later in these
reasons. The Board's conclusion was expressed
in the following paragraph:
The Court considers that it would not be justified in this
instance to suspend the application of the Immigration laws
and regulations in order to grant special relief to the appel
lant, particularly since the law provides the means for the
appellant to return legally to Canada if he wishes to do so.
From this decision an appeal lies, with leave,
to this Court under section 23 of the Immigra
tion Appeal Board Act as amended by section
64(3) of the Federal Court Act, but only on a
"question of law, including a question of
jurisdiction".
In the recent case of Boulis v. Minister of
Manpower and Immigration (March 30, 1972,
unreported), Abbott J., speaking for the majori
ty of the Court, discussed as follows the scope
of such an appeal when taken from a decision
of the Board under section 15.
I agree with my brother Laskin that this Court has juris
diction to entertain such an appeal. Indeed it did so recently
in Grillas v. The Minister of Manpower and, Immigration
decided on December 20, 1971 (as yet unreported),
although the grounds of law urged on that appeal were not
the same as those put forward here.
In my opinion however, such an appeal can succeed only
if it be shown that the Board (a) has refused to exercise its
jurisdiction or (b) failed to exercise the discretion given
under s. 15 in accordance with well established legal princi
ples. As to those principles, Lord Macmillan speaking for
the Judicial Committee said in D. R. Fraser and Co. Ltd. v.
Minister of National Revenue, [1949] A.C. 24 at p. 36:
The criteria by which the exercise of a statutory discre
tion must be judged have been defined in many authorita-
tive cases, and it is well settled that if the discretion has
been exercised bona fide, uninfluenced by irrelevant con
siderations and not arbitrarily or illegally, no court is
entitled to interfere even if the court, had the discretion
been theirs, might have exercised it otherwise.
In the same case, Laskin J., speaking for
himself and Pigeon J., said:
Parliament has imposed an onerous as well as sensitive
duty on the Board to deal with claims for political asylum
and to apply compassionate or humanitarian considerations
to claims of lawful entry to Canada. The judicialization of
power to grant entry in such cases necessarily involves the
Board in difficult questions of assessing evidence, because
its judgment on the reasonableness of grounds of belief that
a deportee will be punished for political activities or will
suffer unusual hardship (the underlining is mine) if the
deportation is carried out, involves it in estimating the
policies and reactions of foreign governmental authorities in
relation to their nationals who claim asylum in Canada when
unable to establish a claim to entry under the regular
prescriptions. The Parliament of Canada has made it clear,
in my opinion, that the granting of asylum should rest not
on random or arbitrary discretion under s. 15(1)(b)(î) but
rather that a claim to the Board's favourable interference
may be realized through evidence upon the relevance and
cogency of which the Board is to pronounce as a judicial
tribunal. The Board has thus been charged with a responsi
bility which has heretofore been an executive one. The right
of appeal to this Court is proof enough that the carrying out
of this responsibility was not to be unsupervised. At the
same time, the Board must be accorded the trust in its
careful and fair dealing with the cases that come before it
for s. 15(1)(b) relief that its status as an independent court
of record demands. Its reasons are not to be read micro
scopically; it is enough if they show a grasp of the issues
that are raised by s. 15(1)(b) and of the evidence addressed
to them, without detailed reference. The record is available
as a check on the Board's conclusions.
In the present case, what the Board's reasons
appear to me to show is that the Board consid
ered the situation (1) from the point of view of
whether the appellant was a person who by his
conduct in relation to his entry into Canada and
the inquiry showed himself to be deserving of
special relief (2) from the point of view of
whether the granting of special relief would
solve the problem of separation of the appellant
from his wife and child and (3) from the point
of view of whether there were other means
available to the appellant for obtaining lawful
entry to Canada. It is also apparent that the
Board was aware that compassionate or human
itarian considerations arising from the probable
effect of the deportation in separating the
appellant from his wife and child existed in the
situation and that the Board considered the
problem from the point of view of the effect of
the appellant's deportation on the interests of
the wife and child as well as of the appellant.
In my opinion these were all relevant matters
for consideration by the Board for the purpose
of reaching a conclusion on whether the com
passionate or humanitarian considerations exist
ing in the situation warranted the granting of
special relief and I do not think the Board can
be said to have erred in law in taking them into
account in reaching its decision.
On the appellant's other submission, that the
findings of fact made by the Board with respect
to his credibility and good faith are not support
able in law, I have had more difficulty. With
respect to the doubt expressed as to the appel
lant's credibility, I would not have regarded the
passages cited by the Board from the evidence
at the special inquiry as raising any serious
doubt as to the appellant's credibility, particu
larly since (1) they consist of but two matters
on which the appellant's evidence varied from
that of his wife and which appear to be matters
of no great significance, (2) there appears to be
no reason why it is not possible that it is the
wife's version that is erroneous and (3) neither
the appellant nor his wife was questioned as to
these matters when they gave evidence before
the Board. The assessment of the credibility of
the witnesses was however eminently a ques
tion for the Board and as they heard both the
appellant and his wife in the course of the
hearing of the appeal, I do not think it can be
said that they erred in law in concluding that
not all that the appellant said should be accept
ed or in doubting or discounting his credibility
as a witness. It was for him to satisfy the Board
that his circumstances warranted special relief
and the doubt they expressed indicated that
they were not prepared for that purpose to
accept all that he said at its face value. The
Board's questioning of the appellant's good
faith stands in a similar position. I do not regard
it as established that the appellant eluded immi
gration officers on more than one occasion by
feigning sleep but it is clear that he did escape
the detection of his status on a number of
occasions when entering Canada, and on the
whole I do not think it can be said that the
Board was wrong in law in entertaining such a
doubt. Moreover, it appears to me that to chal
lenge the Board's doubts on such points
because of disagreement with what they cite or
say in support of them seems to me to require
the Court to go beyond the scope of review
open to it as explained in the reasons of Abbott
and Laskin JJ., in the Boulis case and to read
the Board's reasons "microscopically".
Similar considerations apply as well with
respect to the Board's opinion that the problem
of separation of the appellant's family was not
likely to be solved by the granting of special
relief. Again I do not regard the passages cited
by the Board as affording support for its opin
ion and I do not think I would have reached that
opinion on the evidence as a whole had I been
called upon to judge the facts. The opinion of
the Board, however, is strictly a judgment on
facts with respect to the probable result of
granting special relief, it indicates only that the
Board was not satisfied that that would solve
the family separation problem, and I do not
think it can be said that on the whole of the
evidence this conclusion was one that no rea
sonable person, acting judicially, could reach.
It follows that the Board cannot be said to
have erred in law and that the appeal fails and
should be dismissed.
* * *
PRATTE J.—The appellant is an American citi
zen who, while in Montreal in 1965, married a
Canadian girl who still resides in Montreal with
their child born in 1966. He appeals from the
decision of the Immigration Appeal Board,
dated July 5, 1971, which affirmed the deporta
tion order made against him on January 2, 1970,
and directed that it be executed as soon as
practicable.
The appellant does not contend that the
Board should have allowed his appeal. He
admits having been illegally in Canada in 1970
since he had entered our country without the
consent of the Minister after a first deportation
order had been made against him in 1967
(Immigration Act, section 35, R.S.C. 1970, c.
I-2). The appellant, however, takes exception to
the Board's refusal to exercise its exceptional
powers under section 15(1) of the Immigration
Appeal Board Act, R.S.C. 1970, c. I-3. Under
this section, the Board, when it dismisses an
appeal against an order of deportation, may
nevertheless annul the order or direct that its
execution be stayed having regard to "the exist
ence of compassionate or humanitarian consid
erations that in the opinion of the Board war
rant the granting of special relief". The
appellant submits that the deportation order will
force him to live separate from his wife and
child and that, for this reason, the Board should
have either annulled it or stayed its execution.
It can no longer be doubted, since the deci
sion of the Supreme Court of Canada in Boulis
v. The Minister of Manpower and Immigration
(March 30, 1972, unreported), that the refusal
of the Board to exercise its exceptional power
under section 15(1) is a decision from which an
appeal lies "on any question of law, including a
question of jurisdiction" (Immigration Appeal
Board Act, R.S.C. 1970, c. I-3, section 23(1)).
One must not forget however that, the Board's
power under section 15(1) being a discretionary
one, such an appeal could not succeed unless it
be shown that the Board failed to exercise its
discretion in accordance with the well-estab
lished legal principles referred to in the above-
mentioned decision of the Supreme Court. I
also wish to add that, in my view, it is not
enough for such an appeal to succeed that an
error of law be found in the reasons for the
decision of the Board; it is moreover necessary
(since the appeal is not lodged against the rea
sons but against the decision itself) that this
error be such that, had it not been made, the
decision might have been different.
In this case, the refusal of the Board to annul
the deportation order made against the appel
lant was based on three considerations. First,
the Board entertained doubts as to the appel
lant's credibility, good faith and responsibility;
second, it found that even if the deportation
order were annulled, the appellant, in order to
pursue his profession, would still very often
have to live away from his family; third, the
Board considered that the appellant, in the
event of his being deported, could, with the
consent of the Minister, re-enter Canada legally
provided that he be "sponsored" by his wife
(Immigration Regulations, Part I, section 31).
According to the appellant this decision
should be reversed on two grounds.
First, he contends that the Board made an
error of law when, in order to determine wheth
er the deportation order should be annulled, it
referred to "criteria" that the law does not
empower the, Board to use. This criticism is
aimed at this part of the reasons for the deci
sion where the Board, after having reached the
conclusion that the appeal was to be dismissed,
said:
As to its equitable jurisdiction under section 15 of the
Immigration Appeal Board Act, the Court considers that the
special relief, therein provided, is in fact an exception to the
Immigration laws and regulations and indeed a privilege
which can benefit the appellant by mitigating the rigidity of
the law under justifiable circumstances more particularly
set forth in section 15. The very nature of section 15 with
its extensive powers of suspending the application of the
Immigration laws and regulations must be exercised by the
Court most judiciously if these laws which were passed by
Parliament for a specific purpose are to continue to have
force of law.
Among the general criteria that have been considered by
the Court as being essential in a judicious exercise of its
equitable jurisdiction under section 15 is, on the one hand,
the credibility, the good faith and a normally responsible
attitude of the appellant and on the other hand the existence
of a serious immigration problem with compassionate and
humanitarian overtones, an adequate solution of which is
not already provided for in the law itself.
There are certainly some cases where the
authority entrusted with a discretion would act
illegally in subjecting its exercise to rules of its
own making. So would it be if these rules were
so precise and rigid that their application would
cause the authority to fail in its duty to take into
consideration all the relevant facts of each
individual case (See: Re Hopedale Developments
Ltd. and Town of Oakville, 47 D.L.R. (2d) 482;
de Smith, Judicial Review of Administrative
Action, 2nd ed., p. 294); so would it be, also, if
these rules referred to irrelevant considerations.
But in the present case I do not think that the
Board acted illegally when it referred to the
criteria mentioned in its reasons in order to
determine whether it would grant a special
relief. The application of these very general
criteria did not, in my view, lead the Board to
ignore any part of the evidence. Moreover, I am
of the opinion that the Board did not take
irrelevant considerations into account where it
referred to the credibility, good faith and sense
of responsibility of the appellant. The Board
had to determine whether, in its opinion, there
existed compassionate grounds for protecting
the appellant from the application of the law; I
feel it normal for the Board in making such a
determination to not only consider the situation
that would be created by the execution of the
deportation order, but to also examine whether
the one who claims mercy deserves any pity.
Compassion is more readily felt for one who
has demonstrated his credibility, good faith and
responsibility than for one who, after having
knowingly infringed our immigration laws, has
done nothing to solve his immigration problem.
The appellant also contends, and this is his
second ground of appeal, that the findings of
the Board were so clearly unreasonable that the
Board should be considered as having exercised
its discretion illegally without considering the
evidence before it. This refers to that part of
the reasons for the decision where the Board,
applying the "criteria" it had already formulat
ed, stated that it doubted the appellant's credi
bility, good faith and responsibility and that the
appellant, even if he were not deported, would
very often live away from his family.
The evidence shows clearly that the appellant
entered Canada knowing that he was infringing
our laws and, also, that he did nothing to solve
his immigration problem. I therefore cannot but
say that the Board was justified in questioning
the appellant's good faith and in asserting that
he had not acted as a normally responsible
person.
The accuracy of the finding made by the
Board with respect to the appellant's credibility
is not beyond dispute. But if I take into account
that the Board had the advantage of hearing the
appellant, I cannot say, after having read the
evidence, that this finding was an unreasonable
one.
There remains the Board's assertion that the
appellant, if he were allowed to remain in
Canada, would nevertheless live very often
away from his family. The evidence shows that
the appellant is an entertainer who, in the pur
suit of his profession, travels frequently and,
now and then, has to go away for lengthy peri
ods; in addition, the appellant himself, when he
testified before the Special Inquiry Officer, said
that, even if he established his residence in
Canada, he would still have to maintain a resi
dence in the United States for the purposes of
his work. In these circumstances, it seems to
me that the Board could reasonably find as it
did.
For these reasons, I would dismiss the
appeal.
* * *
PERRIER D.J.—The numbers mentioned
below refer to the pages of the Appeal Record.
—I—
A deportation order was issued against appel
lant on June 14, 1967.
Reasons for Judgment:
1) you are not a Canadian citizen;
2) you are not a person having Canadian domicile, and
that
3) you are a member of the prohibited class described in
paragraph (t) of section 5 of the Immigration Act in that you
cannot or do not fulfil or comply with the conditions or
requirements of this Act or the Regulations by reason of the
fact you are not in possession of a letter of pre-examination
in the form prescribed by the Minister, as required by
subsection (2) of section 28 of the Immigration Regulations,
Part I, of the Immigration Act;
4) you are a member of the prohibited class described in
paragraph (t) of section 5 of the Immigration Act in that you
cannot or do not fulfil or comply with the conditions or
requirements of this Act or the Regulations by reason of the
fact you are not in possession of a medical certificate in the
form prescribed by the Minister, as required by subsection
(1) of section 29 of the Immigration Regulations, Part I, of
the Immigration Act.
I hereby order you to be detained and to be deported.
However, appellant feels there were other
reasons for his deportation.
Page 8-
Q. Have you ever been refused admission or deported
from Canada?
A. Yes.
Q. Could you give me details pertaining to said
deportation?
A. In 1967, I was deported.
Q. Do you know why?
A. As far as I know, I was supposed to receive some
examination papers but I never did. In 1967, I was
told this was the reason I guess. The rest of it is
because of the trouble I was out.
Q. What type of trouble was it?
A. Because of a rented car. I had difficulties returning it
in time. Since then, I was accused falsely of stealing
the car, when I had returned it, and recently acquitted
of that accusation.
Q. Is that the only trouble you had with the Law in
Canada?
A. Yes.
Q. Have you ever had any trouble with the Law in any
other country?
A. Once, in Newark, New Jersey, that I am finishing up
now.
Q. Do you have any objection to give me some details as
regards this trouble in New Jersey?
A. The trouble in Newark, New Jersey, is for a rented
organ. Also I was accused of stealing the organ. This
is 5 years or more old. I will take also care of that
from where I am going to work, with the money I
expect to earn.
Q. Do you owe an important sum of money in that affair?
A. Only the lawyer's fees, that is all.
Q. Do you mean you are cleared with the Court for that
case?
A. I don't believe so, but it could be after all this time.
Q. Have you been sentenced for that accusation?
A. No.
Q. Did you pay a fine or did you have any other
sentence?
A. None.
Q. Would you say that you were detained?
A. Yes, I was detained.
Q. Were you detained for a trial or sentenced to jail?
A. For a trial.
Q. How long were you detained?
A. Two weeks.
Page 9-
Q. Have you had any other trouble with the Law or the
Police Forces?
A. None.
Page 45-
Q. Now, what was the outcome, if any, of the proceed
ings against you at Newark, New Jersey, in respect of
the organ which you said you rented? That is on page
8 of the transcript; what happened at that time, sir?
A. Well, I never trusted the person and I make arrange
ments to make him payments. After that, I heard no
more about it.
There was no appeal from this judgment;
consequently appellant was subject to section
35 of the Immigration Act:
35. Unless an appeal against such order is allowed, a
person against whom a deportation order has been made
and who is deported or leaves Canada shall not thereafter
be admitted to Canada or allowed to remain in Canada
without the consent of the Minister.
—"—
Appellant did not come to Canada for three
years following the deportation order.
Page 7-
Q. What were these periods?
A. In the last 3 years, I have communicated very little.
Q. How did you communicate with them?
A. By phone—she came to Plattsburg.
Q. Am I to understand that in the last 3 years, you have
not come to Canada?
A. No. I have been in and out, short times.
In December 1969 he entered Canada at the
Champlain post while travelling in a car with
some friends.
He represents that he was sleeping, and it
was his friends who answered the questions
asked at the border by the Immigration officers.
He was aware that he was entering the country
illegally.
Page 37-
Q. Mr. Martin, you do not deny that you have been once
deported from Canada?
A. Yes.
Q. And that you came back without having the permis
sion of the Minister as provided by the law?
A. Yes.
He happened to be stopped by the police in
Montreal, and was then referred to the Immi
gration Department. He states he was coming to
visit his wife and child, but had not told his wife
of this.
Page 41-
Q. Did that officer ask why you were coming to Canada?
A. Yes.
Q. What did you tell him?
A. For a visit.
Q. Was that a correct statement?
A. Well, being that I didn't come to stay, it would have to
be a visit.
Q. But what were your intentions?
A. To see my wife and my son.
Q. And to stay for how long?
A. Well, I had into my mind to come, after seeing my
wife and my son, to come to the Immigration and
plead that I would be given another chance.
He also claims he intended to report to the
Immigration authorities and take the necessary
steps to regularize his position. Following
another inquiry, a second deportation order was
issued on February 2, 1970.
Reasons for this Judgment (page 33):
1. You are not a Canadian citizen.
2. You are not a person having acquired Canadian
domicile.
3. You are a person described under subparagraph (ix) of
paragraph (o) of subsection (1) of section 19 of the Immi
gration Act in that you returned and remained in Canada
contrary to the provisions of this Act after a deportation
order was made against you; at Montreal, on June the 14th
1967, and since no appeal against such an order was
allowed and you were deported and left Canada, and, since
you did not have the consent of the Minister, it is contrary
to the provisions of section 38 of the Immigration Act to
allow you to remain in Canada. In accordance with subsec
tion (2) of section 19 of the Immigration Act, you are
subject to deportation.
The Appeal Appeal Board dismissed this appeal on
August 24, 1971 for the reasons stated in its
decision (pages 65 to 70).
—IV—
Appellant seeks to take advantage of section
15 of the Act, which provides for appeals
before an Immigration Appeal Board.
15. (1) . .. the Board may ... direct that the execution of
the order of deportation be stayed, or quash the order or
quash the order and direct the grant or entry or landing to
the person against whom the order was made.
In its judgment the Appeal Board definitely
took into consideration the distressing situation
resulting from the fact of condemning appellant
to live outside the country while his wife and
child, now five years old, live in Montreal.
The Appeal Board observed quite logically
that such separation resulted more from appel
lant's occupation and job than from the order.
The testimony of appellant and his wife estab
lished that they have lived together, since their
marriage in 1965, for about two and a half
years, made up of various periods not exceed
ing two months. The evidence indicates that
appellant worked outside the country for seven
ty per cent of the time.
If his appeal were allowed it is certain that
appellant would continue, as in the past, to
spend more time working outside the country
than within. Moreover appellant does not
appear to have any fixed intention to remain in
the country.
The two spouses would undoubtedly prefer to
remain in Canada. However, the wife states she
is willing to continue residing with her husband
in the United States if this appeal is dismissed.
Q. If your husband has to return to the United States, do
you intend to return with him or to live in Canada?
A. To live in Canada. I want to apply for some papers for
him if he cannot do it himself. He wants to buy a
home, so we will go and live here, but if he cannot
enter to Canada, I guess I will have to go to the States.
Q. Is it your intention to live together with your husband
and child?
A. Yes, it is my intention, definitely.
—V—
It should be noted that appellant's financial
position is hardly prosperous; he has been and
will be unemployed for fairly long periods
because of the vagaries of his occupation. His
wife stated that when her husband was working,
he sent her $200.00 or $250.00 per month,
while he himself testified that he sent his wife a
minimum of $25.00 per week. It was duly
established that in some cases the wife even
had to come to her husband's aid.
—VI—
The Appeal Board noted substantial contra
dictions between the testimony of appellant and
that of his wife. There were in addition contra
dictions between the testimony given by appel
lant on February 2, 1970 and that which he
gave on June 7, 1971.
Appellant's attitude and contradictions cast
doubt on the degree of credibility which the
Court can attach to his testimony, and place his
good faith in question.
—VII—
Principally for the reason that appellant has
never requested or obtained the Minister's con
sent to enter Canada, the Appeal Board's deci
sion is correct.
Appellant's wife can take advantage of sec
tion 31 of the Regulations under the Immigra
tion Act.
31. (1) Subject to this section, every person residing in
Canada who is a Canadian citizen or a person lawfully
admitted to Canada for permanent residence is entitled to
sponsor for admission to Canada for permanent residence
any of the following individuals (hereinafter referred to as a
"sponsored dependant"):
(a) the husband or wife of that person;...
Moreover, this is what she intends to do.
Page 16-
A. I would like to find out exactly what is going to be
done, if he is to be deported I want to know, and what
procedure we will have to go through to get him the
right papers to become an immigrant person with
resident papers. This is what I want to know. He
really has not done anything since we are married. We
married here in Montreal, our son was born here, he
does not work in Montreal, but often he does some
thing, but most of the times he works in the States. It
would be good if he could get his papers once and for
all. How long it would take to get his papers together
with the certificate he needs?
Page 52-
Q. So, would it be correct to say that since November,
1967 you have made no application for your husband?
A. No, not until we went together, the last time.
Q. Did you know that as a Canadian citizen, you have the
right to sponsor your husband for admission to
Canada?
A. No, they didn't tell me; they weren't that helpful.
When appellant's legal position has been
regularized and the matrimonial situation of
himself and his wife has been stabilized some
what, according to whether appellant has
obtained employment in this country or outside,
it will be easier for him to apply for and obtain
readmission.
For the foregoing reasons I would dismiss the
appeal.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.