A-899-88
Gurdev Singh Grewal (Appellant)
v.
Minister of Employment and Immigration and
Secretary of State for External Affairs (Respon-
dents)
INDEXED AS: GREWAL V. CANADA (MINISTER OF EMPLOY
MENT AND IMMIGRATION) (CA.)
Court of Appeal, Heald, Mahoney and Mac-
Guigan JJ.A.—Toronto, June 21; Ottawa, June
26, 1989.
Immigration — Refusal by visa officer to grant application
for Canadian Student Authorization — Visa officer applying
s. 8(2) presumption of immigrant status as "not satisfied
applicant not immigrant" — Appeal from Trial Division deci
sion denying certiorari and mandamus allowed — Immigra
tion Act contemplating two-stage procedure: (1 ) visa procedure
(ss. 9-10) performed outside Canada by visa officers; (2)
examination procedure (ss. 11-18) performed at port of entry
by immigration officers — S. 8(2) presumption applicable to
second stage procedure only — Presumption not binding on
visa officers.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Act, R.S.C., 1985, c. F-7, s. 52(b)(î).
Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 2, 8, 9,
10, 11, 12, 13, 14, 15, 16, 17, 18, 72(2).
CASES JUDICIALLY CONSIDERED
REFERRED TO:
Attorney General of Canada v. Immigration Appeal
Board, (T.D.), T-1240-85, Denault J., 5/7/85, not
reported.
COUNSEL:
David Bruner for appellant.
Urszula Kaczmarczyk for respondents.
SOLICITORS:
Abraham Duggan Hoppe Niman Stott,
Toronto, for appellant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for judgment
rendered in English by
HEALD J.A.: This is an appeal from an order of
the Trial Division [(1988), 24 F.T.R. 126] wherein
the appellant's application for an order in the
nature of certiorari and for an order of mandamus
was dismissed. The subject matter of the section
18 relief sought was the refusal by the respondents
to grant the application of the appellant's nephew,
Hardev Singh Grewal, for a Canadian Student
Authorization to commence studies in grade 5 at a
public school in Brantford, Ontario on September
8, 1987. The nephew was 11 years of age at that
time.
The appellant is a Canadian citizen who has
lived in Canada since 1969. He is a successful
businessman in the Brantford area where he cur
rently resides with his wife and three children. In
1971, the appellant's brother who is the father of
Hardev Singh Grewal became totally blind. He is
a citizen and a resident of India. As a consequence
of this condition he was unable to work. The
appellant has been fully supporting his brother's
family since that time, including Hardev Singh
Grewal, who lives in Ludhiana District in India
where he attends school.
In 1987, the appellant was granted guardianship
of Hardev Singh Grewal by order of an Indian
Court. In the view of the appellant, the nephew's
best interests would be better served were he
allowed to come to Canada to attend school here
and to live with the appellant and his family while
attending school. The appellant had arranged for
his nephew's admission to a school in Brantford at
the grade 5 level.
On September 28, 1987, the nephew accom
panied by an adult friend of the family attended at
the Canadian High Commission in New Delhi and
applied for temporary entry into Canada (student
authorization.) The letter of refusal dated Septem-
ber 30, 1987 (Appeal Book, page 53) stated, inter
alia:
Subsection 8(2) of the Immigration Act, 1976 provides that
"Every person seeking to come into Canada shall be presumed
to be an immigrant until he satisfies the immigration officer
examining him ... that he is not an immigrant." After thor-
ough consideration of all factors in your application, it has been
decided that you cannot be considered a genuine visitor.
The visa officer who refused the application filed
an affidavit in the proceedings before the Trial
Division in which she stated (Appeal Book, page
66):
That I refused the application because I presumed that the
applicant was an immigrant pursuant to Section 8(2) of the
Immigration Act (1976) as he had not satisfied me that he was
not an immigrant.
It is the appellant's submission that the learned
Motions Judge erred in law in concluding that the
visa officer correctly applied the presumption set
out in subsection 8(2) of the Act to the circum
stances of this case.
In order to properly evaluate this submission, I
think it necessary to have regard to the relevant
portions of the scheme of the Immigration Act,
1976. Sections 8 to 18 inclusive are contained in
Part II of the Act under the heading of "Admis-
sion to Canada". Within Part II, there are four
sub-headings:
General Presumption (section 8);
Visas and Special Authorizations (sections 9
and 10);
Examinations (sections 11-17 inclusive); and
Visitors, Security Deposits (section 18).
Section 8 reads:
8. (1) Where a person seeks to come into Canada, the
burden of proving that he has a right to come into Canada or
that his admission would not be contrary to this Act or the
regulations rests on him.
(2) Every person seeking to come into Canada shall be
presumed to be an immigrant until he satisfies the immigration
officer examining him or the adjudicator presiding at his
inquiry that he is not an immigrant.
Section 9 requires, inter alia, that every visitor
(except in prescribed cases) must apply for and
obtain a visa before he appears at a point of entry.
Such an applicant must be assessed by a visa
officer to determine whether he may be granted
entry. Subsection (4) of section 9 provides that in
cases where a visa officer is satisfied that it would
not be contrary to the Act or the regulations to
grant entry to an applicant, the visa officer may
grant a visa for the purpose of identifying the
holder as a visitor and as a person who,' in the
opinion of the visa officer, meets the requirements
of the Act and regulations.
Section 10 requires, inter alia, that a person
seeking entry to Canada for the purpose of taking
educational training, shall make an application
and obtain authorization from a visa officer to
enter Canada for such purpose before he appears
at a port of entry.
As noted supra, sections 11 to 17 inclusive,
carry the sub-heading of "Examinations".
"Examination" is defined in section 2 of the Act as
meaning "an interview conducted by an immigra
tion officer of a person seeking to come into
Canada at a port of entry". The use of that term in
the various sections of this sub-heading are con
sistent with that definition. In my view, sections 9
and 10 of the Act visualize and contemplate an
earlier stage in the admission procedures under the
Act than do sections 11 to 17. The procedures
under sections 9 and 10 are, of necessity, proce
dures which take place outside of Canada and not
at a port of entry. This is clear since those proce
dures are required to be before visa officers and
since the Act defines visa officers as immigration
officers stationed outside of Canada and author
ized by the Minister to issue visas. Counsel for the
respondents submitted that the general presump
tion contained in subsection 8(2) applies to all
admissions to Canada and to every step or proce
dure leading to admission. I do not agree. The visa
procedure authorized by sections 9 and 10 is a
separate procedure in the sense that the issuance
of a visa pursuant to those provisions creates a
status which Parliament has recognized in the
scheme of the statute. In this connection, I refer to
subsection 72(2) of the Act. The relevant portion
thereof reads:
72....
(2) Where a removal order is made against a person who
(b) seeks admission and at the time that a report with respect
to him was made by an immigration officer pursuant to
subsection 20(1) was in possession of a valid visa,
that person may, subject to subsection (3), appeal to the Board
on either or both of the following grounds, namely,
(c) on any ground of appeal that involves a question of law or
fact or mixed law and fact, and
(d) on the ground that, having regard to the existence of
compassionate or humanitarian considerations, the person
should not be removed from Canada.
The status created by this subsection applies to the
holders of a "valid visa" and includes the holder of
an immigrant visa as well as a visitor's visa.' It
confers a right of appeal on both groups where a
removal order has been made. On the other hand,
the second and separate stage envisaged by sec
tions 11 to 18 inclusive addresses the examination
procedures before an immigration officer at a port
of entry or other designated place. It vests such an
immigration officer with a number of incidental
powers including, for example: the power to grant
entry to a visitor subject to certain terms and
conditions (subsection 14(3)); and, section 18
which empowers a senior immigration officer to
require any visitor to post a security deposit as a
guarantee of compliance with any terms and con
ditions imposed under the Act.
In summary, it is my conclusion that the Immi
gration Act envisages a two-stage procedure, and
that, after compliance with both stages, a visitor
may be granted entry to Canada. Stage one is
performed outside of Canada by visa officers.
Stage two is performed inside of Canada at a port
of entry, for the most part. Acceptance of a visitor
in stage one confers upon that individual a certain
status including certain rights of appeal not other
wise available. Stage two involves "Examinations"
by "immigration officers". When subsection 8(2)
is considered in the light of this two-stage proce
dure, I have no difficulty in concluding that the
presumption set out therein applies only to the
examinations by an immigration officer at a port
of entry as set out in sections 11 to 18. Had the
legislators intended to extend this presumption to
visa officers, it would have been a relatively simple
matter to do so by the addition of a very few words
making it clear that visa officers must have regard
to the presumption of immigrant status when
making their assessments and grants of valid visas
pursuant to sections 9 and 10.
For these reasons, then, I conclude that the
learned Motions Judge erred in law when he held
' Compare: Attorney General of Canada v. Immigration
Appeal Board, Trial Division, T-1240-85, per Denault J., July
5, 1985, not reported.
that the visa officer correctly decided that she was
bound by the presumption set out in subsection
8(2) of the Act.
Counsel for the appellant submitted a second
ground of appeal to the effect that the appellant's
nephew was not afforded a fair and impartial
hearing and that the proceedings before the visa
officer were invalid for this reason as well. Because
of my conclusion that the appeal should succeed on
the first ground advanced by counsel, it becomes
unnecessary to deal with the submissions with
respect to procedural unfairness.
In the result, the appeal is allowed, the order of
the Trial Division dated October 7, 1988 is set
aside and pursuant to subparagraph 52(b)(i) of the
Federal Court Act [R.S.C., 1985, c. F-7], the
following order is substituted therefor:
The decision of Visa Officer Patricia Fortier dated September
30, 1987 wherein she refused the application of Hardev Singh
Grewal for a Canadian student authorization is set aside and
the matter is remitted to the respondents to reconsider and
redetermine the said application on the basis that the presump
tion set out in subsection 8(2) of the Immigration Act, 1976,
does not apply to visa application proceedings pursuant to
sections 9 and 10 of the Act.
The appellant is entitled to his costs both here and
in the Trial Division.
MAHONEY J.A.: I agree.
MACGuIGAN J.A.: I agree.
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.