A-321-87
(T-2590-86)
Minister of Employment and Immigration
(Appellant) (Respondent)
v.
Rohan Gopaul Rajpaul (Respondent) (Applicant)
A-322-87
(T-2591-86)
Minister of Employment and Immigration
(Appellant) (Respondent)
v.
Michael Ray Stuart (Respondent) (Applicant)
INDEXED AS: RAJPAUL V. CANADA (MINISTER OF EMPLOY
MENT AND IMMIGRATION)
Court of Appeal, Urie, Mahoney and Stone JJ.—
Ottawa, May 26, 1988.
Immigration — Practice — Evidence — Sponsored landings
refused on basis of marriage of convenience — Immigration
Appeal Board refusing to hear testimony of spouses by tele
phone conference call — Trial Judge reversing decision and
ordering attendance of witnesses on conditions — Trial Judge
erred in assuming attendance required — Provision regarding
attendance severed from remainder of order — Otherwise,
appeals of Minister dismissed, as fair hearing not granted.
These are appeals from Trial Division decisions quashing
refusals of visitor's visas to permit entry of spouses to Canada
to testify before the Immigration Appeal Board. Sponsored
applications for landing had been denied on the ground that the
marriages were ones of convenience. The hearings of the
appeals were adjourned sine die by the Board after it had
refused to receive the spouses' evidence by telephone conference
call, because the identity of the witnesses in Guyana could not
be reliably established. The Trial Judge quashed the refusals on
the basis of paragraph 2(e) of the Canadian Bill of Rights.
Held, the appeals should be dismissed.
Paragraph 2(e) of the Canadian Bill of Rights does not
apply. Sponsors' appeals must, however, be conducted so as to
accord a high measure of fairness when the consequence may
be to prevent cohabitation of a husband and wife. The finding
of marriage of convenience put in issue the credibility of the
parties. To accord a fair hearing, the Board must allow relevant
evidence to be introduced under its broad authority set out in
section 65 of the Immigration Act, 1976. It was no answer to
say that the tribunal is not organized in a way that will allow
for the observation of the principles of natural justice. The
Board's refusal to receive the evidence by conference call could
not be understood. The Board could have heard this evidence
and then judged its reliability. The Board may or may not
require the attendance of the witnesses before it. The Trial
Judge erred in assuming attendance was required. The provi
sions providing for attendance were deleted from the Trial
Judge's orders.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Bill of Rights, R.S.C. 1970, Appendix III,
s. 2(e).
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10,
s. 52(b)(î).
Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 19(3), 65,
104.
Immigration Appeal Board Rules (Appellate), 1981,
SOR/81-419, s. 10(1).
Immigration Regulations, 1978, SOR/78-172, s. 4(3) (as
added by SOR/84-140, s. 1).
COUNSEL:
Brian H. Hay for appellant.
David Matas for respondents.
SOLICITORS:
Deputy Attorney General of Canada for
appellant.
David Matas, Winnipeg, for respondents.
The following are the reasons for judgment of
the Court delivered orally in English by
MAHONEY J.: These two appeals arise in very
similar circumstances. The Minister seeks in each
to overturn a decision of the Trial Division [Raj-
paul v. Canada (Minister of Employment and
Immigration), [1987] 3 F.C. 257; Stuart v.
Canada (Minister of Employment and Immigra
tion), order dated April 16, 1987, Federal Court,
Trial Division, T-2591, not yet reported] which
quashed refusals of visitor's visas sought to permit
entry to Canada to testify before the Immigration
Appeal Board. In each, the proposed visitor is the
Guyanese spouse of a Canadian citizen or resident
whose sponsored application for landing in Canada
had been rejected on a finding that the marriage
was one of convenience. In each, the hearing of the
sponsor's appeal was adjourned sine die by the
Board after it had refused to receive the spouse's
evidence by a telephone conference call which had
been arranged by the sponsor. The refusal in each
was predicated on the ground that the identity of
the witness in Georgetown could not be reliably
established.
The learned Trial Judge has cited considerable
impeccable authority in support of his conclusion
that paragraph 2(e) of the Canadian Bill of
Rights [R.S.C. 1970, Appendix III], applies to the
hearing of the appeal. We will not repeat that
authority; we do agree with the conclusion.
Sponsors have the right to appeal to the Board.
The appeal must be conducted in a way that
accords the sponsor natural justice. When the
consequence of the hearing may be to prevent the
cohabitation in Canada of husband and wife, a
very high measure of fairness is called for. That
certainly includes permitting a sponsor to present
relevant evidence. The evidence of the sponsored
spouse as to the bona fides of the marriage could
not be more relevant when the decision subject of
appeal is premised on the conclusion it was a
marriage of convenience. That decision inherently
puts in issue the credibility of the parties to the
marriage. Accordingly, to accord a fair hearing,
the Board simply must provide for the evidence to
be introduced in a way that will permit it fairly to
resolve questions of credibility.
Section 65 of the Immigration Act, 1976 [S.C.
1976-77, c. 52], vests the Board with very broad
authority as regards "matters necessary or proper
for the due exercise of its jurisdiction." The provi
sion of suitable means to receive evidence in the
circumstances of these two appeals is among those
matters. It is trite law that, where the principles of
natural justice must be observed, it is no answer to
say that the tribunal is not organized or set up in a
way that permits their observation. Particular
cases may require special treatment.
We are at a loss to understand the Board's
refusal to receive the evidence in these appeals by
telephone conference means. The procedure was
proposed by the sponsors. They could not later
have complained that it had not resulted in a fair
hearing. The Board, having heard the evidence,
would have been the judge of its reliability.
All that said, the decisions before us are those of
the Trial Division quashing the refusal of the
visitor's visas. We are conscious of the legitimate
concerns of the Minister in admitting anyone,
especially one whose bona fides has already been
questioned by his officials, even temporarily and
for a specific purpose. No waiver, undertaking or
requirement of detention would deprive that
person of recourse to procedures under the Act
which could delay deportation interminably. The
procedure which the Board devises to receive the
spousal evidence may or may not require their
attendance before it in Canada. In our respectful
opinion the learned Trial Judge erred in predicat
ing his orders on the assumption that it necessarily
would.
In addition to quashing the visa refusal and
declaring that the Immigration Act, 1976, is to be
construed in conformity with paragraph 2(e) of the
Canadian Bill of Rights and to certain other dec
larations not challenged by the Minister, the order
in each case provides that the visa application be
reconsidered on the basis that:
(b) Where a non-Canadian spouse is denied admission to
Canada under subsection 4(3) of the Immigration Regulations,
1978 and amendments, the denial of a Minister's permit, a
visitor's visa, or a qualified grant of entry pursuant to subsec
tion 19(3) of the Immigration Act, 1976, requested for the
purpose of testifying at the Immigration Appeal Board's hear
ing of her sponsor's appeal, infringes the sponsor's right to a
fair hearing in accordance with the principles of fundamental
justice;
It goes on the provide:
IT IS FURTHER ORDERED that the operation of this order shall
be stayed until the applicant's spouse [name] confirms to the
respondent in writing, the applicant's counsel's assertion, to the
effect that she, [name], will submit to custodial detention of the
sort contemplated in section 104 of the Immigration Act, 1976,
in order that she may be removed back to Guyana after giving
her testimony before the Immigration Appeal Board; and sub
ject to subsection 10(1) of the Immigration Appeal Board
Rules (Appellate) 1981, any such submission to custodial
detention shall be at the sole option of the respondent; the
foregoing requirements being the conditions upon which this
discretionary relief is granted, [name's] said written confirma
tion to the respondent shall be signed and witnessed, and
delivered to the respondent as soon as possible, but in any
event, on or before June 1, 1987, and if not, the operation of
this order shall remain stayed in perpetuity; and
These provisions are readily severable from the
balance of the orders and, by way of exercising our
jurisdiction under subparagraph 52(b)(î) of the
Federal Court Act [R.S.C. 1970 (2nd Supp.), c.
10] to give the judgment the Trial Division should
have given, we will vary the orders by deleting the
same. Subject to those deletions, the only legiti
mate criticism of the orders is that they may have
been premature. After all, the Board may yet
require the attendance of the spouses in Canada.
The appeals will otherwise be dismissed with costs.
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.