A-538-80
Minister of Employment and Immigration
(Appellant)
v.
Rogelio Astudillo Gudino (Respondent)
Court of Appeal, Heald and Urie JJ. and Kelly
D.J.—Toronto, June 16; Ottawa, June 29, 1981.
Immigration — Whether landing in Canada was obtained by
improper means — Application by respondent, a citizen of
Mexico, for permanent residence in Canada — Assessment of
respondent based partly on employment offer in Canada —
Visa issued after loss of employment, and then revoked in
Mexico by telephone — No disclosure by respondent of revo
cation at Canadian port of entry — Whether the Immigration
Appeal Board erred in finding that the respondent was not a
person described in s. 27(1)(e) of the Immigration Act, 1976 in
that he did not obtain landing as a permanent resident by
improper means — Immigration Act, 1976, S.C. 1976-77, c.
52, ss. 2, 27(1)(e), 72(1)(b), 75(1) — Immigration Act, R.S.C.
1970, c. I-2, s. 5(t) — Immigration Regulations, Part I,
SOR-62/36, s. 28(1).
The respondent, a citizen of Mexico, applied for permanent
residence in Canada to a visa officer in Mexico. He was offered
employment with an airline company in Canada and, upon
assessment, obtained sufficient points to become eligible for
such status. Respondent subsequently lost his employment but
was nevertheless issued a visa. He was however advised the next
day, by a visa officer in Mexico, that the visa was no longer
valid and that he should not proceed to Canada. Dismissing the
officer's advice, respondent flew to Canada and at the port of
entry, refrained from disclosing the loss of his employment and
the revocation of his permit. The issue is whether the Immigra
tion Appeal Board erred in finding that the respondent was not
a person described in section 27(1)(e) of the Immigration Act,
1976, in that he did not obtain landing as a permanent resident
by reason of improper means.
Held, the appeal is allowed. The change of circumstances
having to do with loss of respondent's employment was clearly
material and should have been disclosed to the immigration
officer at the port of entry. 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 employ
ment" he did not have enough points to qualify for permanent
residence. Accordingly, he would become inadmissible under
section 5(t) of the Immigration Act of 1970. The test of
materiality is thus satisfied. Furthermore, the Board was in
error in imposing on the immigration authorities a duty to
cancel a visa in a particular manner in the absence of such a
requirement in the statute or Regulations. Here, the fact of
revocation was admittedly communicated to the person con-
cerned and thus the revocation of the visa was valid and
effective.
Minister of Manpower and Immigration v. Brooks [1974]
S.C.R. 850, referred to. Zamir v. Secretary of State for
the Home Department [1980] 2 All E.R. (H.L.) 768,
agreed with.
APPEAL.
COUNSEL:
B. Evernden for appellant.
C. Hoppe for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
appellant.
Abraham Duggan Hoppe Niman Stott,
Toronto, for respondent.
The following are the reasons for judgment
rendered in English by
HEALD J.: It is my opinion that on the record in
this case, it has been established that the respond
ent is a person described in paragraph 27(1)(e) of
the Immigration Act, 1976, S.C. 1976-77, c. 52',
in that he is a permanent resident who was granted
landing by reason of improper means exercised by
himself in that he proceeded to Canada and
obtained permanent resident status on the basis of
an immigrant visa which he knew to be no longer
valid.
The respondent is a citizen of Mexico by birth.
On October 13, 1977, he submitted an application
for permanent residence in Canada (that applica
tion being dated July 24, 1977) to a visa officer in
the Canadian Embassy at Mexico City. At the
same time, and in support of that application, he
supplied material to the visa officer confirming an
offer of employment with Aeromexico, an airline
having offices in Toronto. He was then examined
' Said paragraph 27(1)(e) reads as follows:
27. (1) Where an immigration officer or peace officer has
in his possession information indicating that a permanent
resident is a person who
(e) was granted landing by reason of possession of a false
or improperly obtained passport, visa or other document
pertaining to his admission or by reason of any fraudulent
or improper means or misrepresentation of any material
fact, whether exercised or made by himself or by any other
person, or
by a visa officer and assessed in accordance with
the norms of assessment established under the
Immigration Act, R.S.C. 1970, c. I-2, and Regula
tions then in force, and, based, at least partially on
the confirmation of employment with Aeromexico,
the respondent achieved sufficient points to render
him eligible for permanent resident status 2 . On
November 14, 1977, Aeromexico terminated the
respondent's employment and, by letter dated
November 15, 1977, advised the Toronto Office of
the Department of Employment and Immigration
of the termination. On January 19, 1978, the visa
officer in Mexico City issued a visa permitting the
applicant to enter Canada as a permanent resi
dent. At the time the visa was issued, the visa
officer was not aware that the respondent had lost
his employment with Aeromexico. On January 23,
1978, the respondent was given his visa at the visa
office in Mexico City. At that time he was not
asked whether the circumstances described in the
visa remained correct, nor did he disclose that he
had lost his employment with Aeromexico. By
telex dated January 23, 1978, the visa officer in
Mexico City was advised that the respondent was
no longer employed by Aeromexico. On January
24, 1978, a visa officer telephoned the respondent
and confirmed that the respondent was no longer
so employed, thereupon advising the respondent
that the visa was no longer valid and that he
should not proceed to Canada. However, the
respondent flew to Toronto from Mexico on Janu-
ary 29, 1978. After his arrival there, he drove to
Niagara Falls, New York and on January 30,
1978, was admitted to Canada on the basis of the
visa which had been issued to him at Mexico City.
During the examination at the port of entry, the
respondent did not advise the immigration officer
conducting the examination that he had lost his
employment prior to the issuance of the visa, nor
did he indicate that he had been advised that the
visa was revoked and could not be used to enter
Canada. The respondent was not,asked at the port
of entry whether the statements contained in the
visa were true.
2 The record established (see A.B., Vol. I, p. 116) that the
Personal Assessment Record for the applicant contains the
following note: "Appointed District Sales Manager (Cargo) for
Aeromexico in Toronto." It also establishes (see A.B., Vol. I, p.
116) that the applicant was awarded 10 points for this
"arranged employment" and that, without these 10 points, the
applicant would have had insufficient points to qualify for
permanent residence.
The principal thrust of the respondent's submis
sion 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 issu
ance 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" 3 . 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
3 See Immigration Regulations, Part I, subs. 28(1). [SOR/
62-36 as amended.]
paragraph 5(t) of the old Act which declared
inadmissible:
s....
(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.
In these circumstances, the test of materiality
referred to in the Brooks case 4 has, in my opinion,
been satisfied. The change of circumstances having
to do with loss of his employment was clearly
material and should have been disclosed to the
immigration officer at the port of entry. In dealing
with a similar situation, Lord Wilberforce had this
to say concerning the duty of an alien seeking
entry to the United Kingdom 5 :
In my opinion an alien seeking entry to the United Kingdom
owes a positive duty of candour on all material facts which
denote a change of circumstances since the issue of the entry
clearance. He is seeking a privilege; he alone is, as to most such
matters, aware of the facts: the decision to allow him to enter,
and he knows this, is based on a broad appreciation by immi
gration officers of a complex of considerations, and this
appreciation can only be made fairly and humanely if, on his
side, the entrant acts with openness and frankness. It is insuffi
cient, in my opinion, to set as the standard of disclosure that
which applies in the law of contract; the relation of an intend
ing entrant and the authorities is quite different in nature from
that of persons negotiating in business. The former requires a
higher and more exacting standard. To set it any lower than as
I have described is to invite, as unhappily so many of the
reported cases show, a bureaucratic and anti-bureaucratic con
test with increasing astuteness, manoeuvring and ingenuity on
one side, and increasingly cautious technicality and procrasti
nation on the other. This cannot be in the interest of sensitive
administration.
In this case, the respondent admitted that the
cancellation of his visa had been communicated to
him, and that when he attended at the port of
entry, he deliberately refrained from advising the
immigration officer of that fact, thereby breaching
the "duty of candour" referred to by Lord Wilber-
force in the Zamir case supra. He has, therefore,
in my view, obtained landing as a permanent
resident by reason of improper means contrary to
paragraph 27(1)(e) supra.
I would not wish to leave this branch of the case
without commenting upon the reasons given by the
4 Minister of Manpower and Immigration v. Brooks [1974]
S.C.R. 850.
5 Zamir v. Secretary of State for the Home Department
[1980] 2 All E.R. (H.L.) 768 at page 773.
Board in support of their conclusion that Mr.
Gudino's appeal should be allowed. Those reasons
read as follows (A.B., Vol. II, p. 227):
"Visa" in section 2(1) of the Immigration Act, 1976, is
defined as follows:
" `visa' means a document issued or a stamp made on a
document by a visa officer".
A visa, therefore, is a document which, in the opinion of the
Board, to be invalidated should be cancelled by authorized
officials of Employment and Immigration Commission in the
proper manner in writing or by putting a stamp with the note
"Cancelled" on the document. In this particular case, Mr.
Gudino was only advised by a telephone call that he should not
present the visa that was issued to him at the border.
As there is no evidence that his visa was cancelled, the above
mentioned grounds are not a proper basis for issuing the order
of deportation.
There is no provision in the Immigration Act or
Regulations establishing the procedure by which a
visa can be cancelled or revoked. However, since a
visa is issued outside Canada by a visa officer who
is defined, inter alia, as an immigration officer
"stationed outside Canada ..." there would be no
practical means for the immigration authorities to
compel the attendance of a person so that his visa
could be revoked by endorsing thereon the word
"Cancelled" as suggested by the Board. Likewise,
it is my view that a requirement for written notice
to the person concerned would not guarantee that
the fact of revocation would be communicated to
him. I agree with counsel for the Minister that the
method chosen in this case, communication by
telephone, was the most appropriate and effective
method in the circumstances. I have therefore
concluded that the Board was in error in imposing
on the immigration authorities a duty to cancel a
visa in a particular manner in the absence of such
a requirement in the statute or Regulations. In this
case, the fact of revocation was admittedly com
municated to the person concerned and thus the
revocation of the visa was valid and effective.
I have accordingly and for the foregoing reasons
concluded that the Immigration Appeal Board
erred in finding that the respondent was not a
person described in paragraph 27(1)(e) of the
Immigration Act, 1976.
This, however, does not completely dispose of
the matter because of the following passage at the
conclusion of the Board's reasons (A.B., Vol. II,
pp. 227 and 228):
The Board wishes to add that if it had to uphold the
deportation order on legal grounds, it would allow this appeal
pursuant to section 72(1)(b) "on the ground that, having
regard to all the circumstances of the case, the person should
not be removed from Canada."
A perusal of the transcript of the proceedings
before the Immigration Appeal Board makes it
clear that the question of a possible exercise by the
Board of its equitable jurisdiction under paragraph
72(1)(b) was raised and argued before the Board
(see A.B, Vol. II, pp. 183-186 incl.). Thus, if the
Board, in its formal order had simply stated that
the appeal was allowed, that type of order when
accompanied by the passage from its reasons
quoted supra would have satisfied me that the
Board had in fact exercised its equitable jurisdic
tion under paragraph 72(1)(b). However, the
formal judgment of the Board reads as follows
(A.B., Vol. II, p. 215):
THIS BOARD ORDERS AND ADJUDGES that this appeal be and
the same is hereby allowed because the removal order made the
21st day of December, 1978, is not in accordance with the law.
[The underlining is mine.]
Thus, the wording of the judgment makes it clear
that the appeal was allowed only on the basis that
the respondent was not a person described in para
graph 27(1)(e). For this reason, I believe that this
appeal should be allowed, the decision of the
Immigration Appeal Board set aside and the
matter should be referred back to the Board on the
following bases:
(a) that the respondent is a person described in
paragraph 27(1)(e) of the Immigration Act,
1976; and
(b) that the Board should consider the appeal
further on the basis of the equitable jurisdiction
conferred upon it under paragraph 72(1)(b) of
the Immigration Act, 1976, thereafter disposing
of the appeal on the basis of the power given to
it pursuant to subsection 75(1) of the Immigra
tion Act, 1976.
* * *
URIE J.: I agree.
* * *
KELLY D.J.: I concur.
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.