IMM-2836-97
The Minister of Citizenship and Immigration (Applicant)
v.
Danilo Ramos Seneca (Respondent)
Indexed as: Canada (Minister of Citizenship and Immigration) v.Seneca (T.D.)
Trial Division, Noël J."Vancouver, March 25; Ottawa, April 6, 1998.
Citizenship and Immigration — Exclusion and removal — Immigration inquiry process — Judicial review of IRB, Appeal Division's dismissal of preliminary motion to dismiss appeal from conditional removal order for lack of jurisdiction — Permanent residence application containing false information as to previous marriage — Applicant complying with conditional immigrant visa by marrying Canadian fiancée within 90 days of landing — Subsequently convicted of bigamy — After inquiry, respondent found to be person within ss. 27(1)(d)(ii) (convicted of offence for which term of imprisonment of five or more years may be imposed), 27(1)(e) (granted landing by misrepresentation of material fact) — Conditional removal order issued — Under words, scheme of Act, applicant entitled to appeal removal order — Only permanent resident can be directed to inquiry under s. 27(1) — S. 32(2) recognizing fact person held to come within s. 27(1) remaining permanent resident despite finding — Argument adjudicator's decision as to validity of visa stripping respondent of right of appeal as permanent resident status void ab initio inconsistent with language of ss. 27, 32 — Also, once person formally granted permanent resident status, provisions specifying how may be taken away clearly contemplating appellate rights — Finally, s. 70(1) conferring right of appeal on any ground involving question of fact, law — Status of person appealing removal order cannot be invoked to deny appeal right conferred by s. 70(1)(a) where conclusion with respect to status necessarily consequence of adjudicator's finding of fact, law — —Lawful— admission meaning permission ostensibly given by appropriate authority regardless of how obtained — Statutory amendment required if positive determination under s. 27(1)(e) to be without appeal.
This was an application for judicial review of the Immigration and Refugee Board, Appeal Division's dismissal of the Minister's preliminary motion to dismiss the respondent's subsection 70(1) appeal from a conditional removal order issued pursuant to Immigration Act, subsection 32.1(2) . The respondent, a citizen of the Philippines, applied for permanent residence as a member of the family class. His application was sponsored by his Canadian fiancée. In his application, he gave false information concerning a prior marriage, and the number of children he had. The respondent was issued an immigrant visa on condition that he marry his fiancée within 90 days of being landed in Canada, which he did. Subsequently, it was discovered that his previous marriage had never been dissolved, and the respondent was convicted of bigamy. After an inquiry the respondent was found to be a person described in subparagraph 27(1)(d)(ii) (convicted of an offence for which a term of imprisonment of five or more years may be imposed) and in paragraph 27(1)(e) (granted landing by misrepresentation of a material fact). A conditional removal order was issued. When the respondent appealed, the applicant filed a preliminary motion to dismiss for lack of jurisdiction, the dismissal of which was the subject of this application.
Subsection 70(1) provides that where a removal order is made against a permanent resident, that person may appeal to the Appeal Division on either: (a) a question of law or fact; or (b) on the ground that having regard to the circumstances, the person should not be removed. "Permanent resident" is defined as including a person who has been granted landing, and who has not ceased to be a permanent resident pursuant to section 24 or 25.1. "Landing" is defined as "lawful permission to establish permanent residence in Canada.
The issue was: whether a person who has been found by an adjudicator to have been granted landing by means of an improperly obtained visa pursuant to paragraph 27(1)(e), and against whom a removal order has therefore issued, is entitled to appeal that order to the Appeal Division.
Held, the application should be dismissed.
Under the words and scheme of the Act, such a person is entitled to appeal the removal order pursuant to subsection 70(1). It is a condition precedent to the jurisdiction of the adjudicator under subsection 27(1) that the person directed to inquiry thereunder is a permanent resident. Sections 31 and 32 set out the procedure to be followed after an inquiry is held. Subsection 32(2) provides that where an adjudicator decides that a person who is the subject of inquiry is a permanent resident described in subsection 27(1), the adjudicator shall make a deportation order against that person. Subsection 32(2) is thus a statutory recognition of the fact that a person who is held to come within subsection 27(1) remains a permanent resident despite this finding. It follows that the person concerned can appeal the ensuing removal order in that capacity.
In addition to being inconsistent with the language of sections 27 and 32, the argument that, having regard to the definition of "permanent resident" stipulating that the person be lawfully landed, the adjudicator's decision regarding the validity of the respondent's visa effectively strips him of the right of appeal provided for in paragraph 70(2)(b ) as his permanent resident status was void ab initio, was flawed for two reasons. (The applicant argued that the reasoning which the Court has employed with respect to appeals under paragraph 70(2)(b) applied to appeals under subsection 70(1)). The first flows from the definition of "permanent resident" (which stipulates that a person not have ceased to be a permanent resident pursuant to section 24 or 25.1). Sections 24 and 25.1 state that cessation may take place where the person is either no longer a resident of Canada, or where "a removal order has been made against that person and the order is not quashed or its execution is not stayed pursuant to subsection 73(1)". Subsection 73(1) stipulates how the Appeal Division may dispose of an appeal. Once a person has been formally granted the status of permanent resident, these provisions specify how that status may be taken away and this procedure clearly contemplates appellate rights. This interpretation is consistent with subsection 69.4(2), which confers exclusive jurisdiction on the Appeal Division to determine all questions of law and fact, including jurisdiction, that may arise in relation to the making of a removal order.
The second reason why that argument failed was more directly related to appeal rights in general. The appeal right was conferred by subsection 70(1)(a) (which confers an appeal right on any ground that involves a question of law or fact). The status of a person seeking to appeal an adjudicator's removal order cannot be invoked to deny the appeal right conferred by paragraph 70(1)(a) where any conclusion drawn with respect to the appellant's status is necessarily a consequence of a finding of fact or law made by the adjudicator. The suggestion that the person concerned has no status because he or she was not "lawfully" admitted in the first place cannot take away the right of appeal on that very question. "Lawful" permission means permission ostensibly given by the appropriate authority regardless of how it was obtained. This was not a matter of giving a dishonest immigrant more rights than those afforded to an honest immigrant, but a matter of respecting Parliament's clearly expressed will. Parliament should amend the Act if it wishes that a positive determination by an adjudicator under paragraph 27(1)(e ) be without appeal.
The issue herein was certified.
statutes and regulations judicially considered
Citizenship Act, R.S.C., 1985, c. C-29, s. 10(2).
Criminal Code, R.S.C., 1985, c. C-46, s. 291(1).
Immigration Act, R.S.C., 1985, c. I-2, ss. 2(1) (as am. by S.C. 1992, c. 49, s. 1) "landing", "permanent resident", 24 (as am. by S.C. 1995, c. 15, s. 4), 25.1 (as am. by S.C. 1992, c. 49, s. 14), 27(1)(d )(ii) (as am. idem, s. 16), (e), (2)(g) (as am. idem), 31 (as am. idem, s. 20), 32 (as am. idem, s. 21), 32.1(2) (as am. idem, s. 23), 69.4(2) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18), 70(1) (as am. idem; S.C. 1995, c. 15, s. 13), (2) (as am. idem), (b) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18), 73(1) (as am. idem).
cases judicially considered
applied:
Tran v. Canada (Minister of Citizenship & Immigration) (1996), 36 Imm. L.R. (2d) 275 (F.C.T.D.).
not followed:
Peralta v. Canada (Minister of Citizenship and Immigration) (1996), 123 F.T.R. 153 (F.C.T.D.); Yu v. Canada (Minister of Citizenship & Immigration) (1997), 39 Imm. L.R. (2d) 97 (F.C.T.D.).
referred to:
Minister of Employment and Immigration v. Wong (1993), 153 N.R. 237 (F.C.A.); Canada (Minister of Citizenship and Immigration) v. Hundal, [1995] 3 F.C. 32; (1995), 96 F.T.R. 306; 30 Imm. L.R. (2d) 52 (T.D.); Canada (Minister of Citizenship and Immigration) v. Copeland, [1998] 2 F.C. 493 (T.D.); Canada (Minister of Employment and Immigration) v. De Decaro, [1993] 2 F.C. 408; (1993), 103 D.L.R. (4th) 564; 155 N.R. 129 (C.A.).
APPLICATION for judicial review of Immigration and Refugee Board, Appeal Division's dismissal of a preliminary motion to dismiss, for want of jurisdiction, the respondent's appeal pursuant to Immigration Act, subsection 70(1) from a conditional removal order (Canada (Minister of Citizenship and Immigration) v. Seneca, [1997] I.A.D.D. No. 684 (QL)). Application dismissed and question certified.
counsel:
Sandra E. Weafer for applicant.
Charles R. Darwent for respondent.
solicitors:
Deputy Attorney General of Canada for applicant.
Charles R. Darwent, Calgary, for respondent.
The following are the reasons for order rendered in English by
Noël J.: This is an application for judicial review of a decision of the Appeal Division, Immigration and Refugee Board (the Appeal Division) dated June 18, 1997 [[1997] I.A.D.D. No. 684 (QL)], wherein the Appeal Division dismissed the Minister of Citizenship and Immigration's (the applicant) preliminary motion to dismiss the appeal of Danilo Ramos Seneca (the respondent) for lack of jurisdiction.
Facts
The respondent is a citizen of the Philippines, born October 17, 1953. On July 3, 1976, he married Leticia Torres in Baguio City, the Philippines. The respondent has two children from this marriage: Ester Joy Torres Seneca, born April 14, 1977, and Barney John Torres Seneca, born October 13, 1983.
On November 11, 1986, at the Canadian Embassy in Manila, the respondent applied for permanent residence in Canada as a member of the family class. His application was sponsored by Priscilla Esther Boyce, his Canadian fiancée. In his application, the respondent indicated that he had been married more than once. The respondent claimed to have married Leticia Torres around December 29, 1980, but that they were now separated. The respondent also claimed to have one son, Barney John Seneca, born December 13, 1983.1 As part of his application, he signed a statutory declaration wherein he declared having been married one time only and that the legal status of this marriage was in doubt.2
Based on the information contained in the respondent's application for permanent residence and following an unsuccessful attempt to locate a registration of the respondent's alleged December 29, 1980, marriage to Ms. Torres, the visa officer who assessed the respondent's application concluded that the respondent's marriage was not legally binding.
On June 30, 1987, the respondent was issued an immigrant visa under the family class category, with the condition that he marry his fiancée within 90 days of being landed in Canada. The respondent arrived in Canada on August 12, 1987, at the Vancouver International Airport. On August 22, 1987, he married Priscilla Boyce in Red Deer, Alberta.
In 1989, an RCMP investigation into the respondent's application revealed that he had in fact married Ms. Torres on July 3, 1976, and that the marriage had never been dissolved.3 The respondent was subsequently charged with and convicted of bigamy contrary to subsection 291(1) of the Criminal Code [R.S.C., 1985, c. C-46]. On September 13, 1990, the respondent was given a suspended sentence and 12 months' probation.4
As a result of this conviction, the respondent was made the subject of an inquiry and determined by an adjudicator to be a person described in subparagraph 27(1)(d)(ii) of the Immigration Act [R.S.C., 1985, c. I-2 (as am. by S.C. 1992, ch. 49, s. 16)].5 In addition, because of the respondent's misrepresentation of his marital status and his failure to declare his daughter, he was found to be a person described in paragraph 27(1)(e) of the Act.6
On January 28, 1994, a conditional removal order was issued against the respondent, pursuant to subsection 32.1(2) [as am. by S.C. 1992, c. 49, s. 23] of the Act. The respondent then appealed this order pursuant to subsection 70(1) [as am. by S.C. 1995, c. 15, s. 13] of the Act. In response to the respondent's notice of appeal, the applicant filed a preliminary motion with the Appeal Division requesting that the Appeal Division dismiss the respondent's appeal for lack of jurisdiction.
On June 18, 1997, the Appeal Division dismissed the applicant's motion and directed that the appeal be set down for hearing on the merits. It is from this decision that the applicant presently seeks judicial review.
The Applicant's Argument
The applicant observes that subsection 70(1) of the Act provides that where a removal order is made against a permanent resident, that person may appeal to the Appeal Division on either: (a) a question of law or fact; or (b) on the ground that having regard to the circumstances of the case, the person should not be removed.
The applicant notes that the term "permanent resident" is defined in subsection 2(1) [as am. by S.C. 1992, c. 49, s. 1] of the Act as a person who:
2. (1) . . .
(a) has been granted landing,
(b) has not become a Canadian citizen, and
(c) has not ceased to be a permanent resident pursuant to section 24 or 25.1,
and includes a person who has become a Canadian citizen but who has subsequently ceased to be a Canadian citizen under subsection 10(1) of the Citizenship Act, without reference to subsection 10(2) of that Act.
The applicant then points out that the term "landing" is defined in subsection 2(1) [as am. idem ] of the Act as "lawful permission to establish permanent residence in Canada". The applicant contends that "lawful permission" requires that the person meet the requirements of the Immigration Act and Regulations in the course of obtaining that permission.
The applicant then cites two cases involving appeals to the Appeal Division by persons who had not yet been granted landing but had been issued visas (paragraph 70(2)(b) [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1995, c. 15, s. 13] of the Act).7 In both of these cases the Court found that where the essential reason underlying the issuance of a visa is not present before the visa is actually issued, the visa is void ab initio and the person cannot invoke the right of appeal provided for in paragraph 70(2)(b).
The applicant takes the view that the reasoning employed by the Court with respect to appeals under paragraph 70(2)(b) is equally applicable to appeals made pursuant to subsection 70(1). According to the applicant, where a person obtains landing on the basis of an immigrant visa that is invalid, such a person is not lawfully permitted to establish permanent residence in Canada. In the applicant's view, it follows that such a person would not possess a right of appeal as a permanent resident under subsection 70(1). The applicant cites the cases of Peralta v. Canada (Minister of Citizenship and Immigration)8 and Yu v. Canada (Minister of Citizenship and Immigration)9 in support of this proposition.
In Peralta, the applicant had obtained a family class visa as an accompanying dependent son. At the time of his application for permanent residence the applicant was unmarried. Subsequent to the issuance of the applicant's visa, but prior to his arrival in Canada, the applicant got married. He did not disclose this change in his marital status at the port of entry. The applicant obtained landing but was eventually directed to inquiry and ordered deported. His subsequent appeal to the Appeal Division was dismissed for lack of jurisdiction.
On judicial review Richard J. affirmed the Appeal Division's finding on the basis that the applicant's visa was invalid. Upon review of the case law on the subject, Richard J. found that a visa, once issued, remains valid, subject to four exceptions.10 The first exception is termed the "De Decaro exception"11 and applies where it is obvious that a supervening act has made satisfaction of the condition upon which the visa was issued impossible. Relying on the De Decaro exception, Richard J. concluded that the applicant's marriage prior to his entry into Canada was a supervening act which effectively rendered the satisfaction of the condition upon which the visa was issued (i.e. that the applicant be a dependent son) impossible. On that basis Richard J. concluded that the Appeal Division was correct in finding that the applicant did not have the required status to pursue an appeal pursuant to subsection 70(1).
The applicant observes that in Tran v. Canada (Minister of Citizenship and Immigration),12 the contrary authority relied upon by the Appeal Division in dismissing the preliminary motion, McKeown J. made no mention of the earlier decision of Richard J. In Tran, the applicant was single at the time she applied for permanent residence but was then married before being issued her visa. As in Peralta, she was directed to inquiry, found to be a person described in paragraph 27(1)(e) and ordered deported. The applicant's appeal of the order was dismissed by the Appeal Division for lack of jurisdiction. On judicial review, however, McKeown J. allowed the applicant's application and ordered that she be dealt with as a permanent resident under subsection 70(1).
The applicant argues that Tran is an anomaly that must be considered in light of the subsequent decision in Yu v. Canada (Minister of Citizenship and Immigration) where Dubé J. followed Peralta and distinguished Tran.13 In Yu, the applicant also failed to disclose her marriage which took place after her application for permanent residence (as a dependant) but before the issuance of her visa. On the basis of these facts, Dubé J. concluded that the principal reason for the issuance of the applicant's visa ceased to exist before the visa was issued and that the applicant, having fraudulently obtained permanent resident status, was not entitled to avail herself of the appeal rights accorded by subsection 70(1).
Relying on the above case law, the applicant takes the position that the respondent in this proceeding does not have standing to invoke subsection 70(1) because the principal reason for the issuance of the respondent's visa ceased to exist before its issuance and the respondent's marriage prior to his entry into Canada was a "supervening act" that made the satisfaction of the condition of his visa impossible.14
The applicant argues that it would not be in keeping with Parliamentary intent to allow persons who obtained permanent residence on the basis of an invalid visa a right of appeal under subsection 70(1). The applicant observes that a person who was granted landing on the basis of a false representation should not be given greater rights than a person who is truthful at the port of entry.15
Finally, the applicant maintains that it is not suggesting that all forms of misrepresentation result in unlawful landing. According to the applicant, such an approach would render paragraph 27(1)(e) meaningless. The applicant is only advocating that a person is not a permanent resident to which a right of appeal is afforded where the misrepresentation goes to the validity of the visa.16
The Respondent's Position
The respondent advances two grounds in support of his position. First, the respondent maintains that the De Decaro exception relied on by Richard J. in Peralta does not apply in the present circumstances. The respondent notes that in Hundal, supra, Rothstein J. found that this exception only applies where a supervening event renders the condition upon which the visa was issued impossible to meet. The respondent argues that he could have obtained a judgment of divorce prior to coming to Canada thereby allowing him to fulfill the condition that he marry Ms. Boyce. In other words, the respondent's prior marriage did not make it impossible to meet his visa requirement.
Second, the respondent maintains that he did in fact admit that he was married in his application for permanent residence. The respondent takes the view that the applicant is now alleging misrepresentation to cover "her own officer's error or inadvertence in his dealings with the respondent at the time he applied for the visa".17
Decision
The issue as I understand it can be stated as follows: where an adjudicator has found that a person was granted landing by means of an improperly obtained visa pursuant to paragraph 27(1)(e) of the Act, and a removal order has been issued against that person as a result, is the person entitled to appeal that order to the Appeal Division by virtue of subsection 70(1)?
In my opinion, such a person is entitled to appeal the removal order pursuant to subsection 70(1) of the Act. This conclusion flows from the words and the scheme of the Act which in my respectful view provide for a different result than that which was reached in Peralta and Yu.
As indicated earlier, the respondent in this proceeding was directed to inquiry and found by the adjudicator to be a person described in paragraph 27(1)(e) of the Act. Paragraph 27(1)(e) states:
27. (1) An immigration officer or a peace officer shall forward a written report to the Deputy Minister setting out the details of any information in the possession of the immigration officer or peace officer 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 of by any other person. [Underlining added.]
A person directed to inquiry pursuant to subsection 27(1) is thus brought before the adjudicator on the basis that he is, in law, a permanent resident. That, of course is a condition precedent to the jurisdiction of the adjudicator under that section and both parties in this proceeding take the position that the adjudicator had jurisdiction to deal with the respondent under that section.18
Sections 31 [as am. by S.C. 1992, c. 49, s. 20] and 32 [as am. idem, s. 21] set out the procedure to be followed after an inquiry is held. Subsection 32(2) provides:
32. . . .
(2) Where an adjudicator decides that a person who is the subject of inquiry is a permanent resident described in subsection 27(1), the adjudicator shall, subject to subsections (2.1) and 32.1(2), make a deportation order against that person. [Underlining added.]
Subsection 32(2) is thus a statutory recognition of the fact that a person who is held to come within subsection 27(1) remains a permanent resident despite this finding. It would seem to follow that the person concerned can appeal the ensuing removal order in that capacity.
However, the applicant argues that having regard to the fact that the definition of "permanent resident" stipulates that the person be lawfully landed,19 the adjudicator's decision regarding the validity of the respondent's visa has the effect of stripping from him the right of appeal provided for in subsection 70(1) of the Act as his permanent resident status is void ab initio. This argument in addition to being inconsistent with the language of sections 27 and 32, is flawed for two principal reasons.
The first reason flows from the definition of "permanent resident" set out in subsection 2(1) of the Act. A permanent resident is a person who:
2. (1) . . .
(a) has been granted landing,
(b) has not become a Canadian citizen, and
(c) has not ceased to be a permanent resident pursuant to section 24 or 25.1,
and includes a person who has become a Canadian citizen but who has subsequently ceased to be a Canadian citizen under subsection 10(1) of the Citizenship Act, without reference to subsection 10(2) of that Act. [Underlining added.]
As stated earlier, only a permanent resident can be directed to inquiry under subsection 27(1). There is no question that prior to the adjudicator's decision the respondent was in law a permanent resident. According to paragraph (c), above, section 24 [as am. by S.C. 1995, c. 15, s. 4] or 25.1 [as am. by S.C. 1992, c. 49, s. 14] provide for the possibility of cessation of permanent resident status. Sections 24 and 25.1 state that cessation may take place where the person is either no longer a resident of Canada, or where "a removal order has been made against that person and the order is not quashed or its execution is not stayed pursuant to subsection 73(1)".
Subsection 73(1) [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18] provides in turn:
73. (1) The Appeal Division may dispose of an appeal made pursuant to section 70
(a) by allowing it;
(b) by dismissing it;
(c) in the case of an appeal made pursuant to paragraph 70(1)(b) or 70(3)(b) respecting a removal order, by directing that execution of the order be stayed; or
(d) in the case of an appeal made pursuant to paragraph 70(1)(b) or 70(3)(b) respecting a conditional removal order, by directing that execution of the order on its becoming effective be stayed.
Once a person has been formally granted the status of permanent resident, the above provisions specify how it may be taken away and this procedure clearly contemplates appellate rights. This interpretation is consistent with the wording of subsection 69.4(2) [as am. idem] of the Act. Subsection 69.4(2) reads:
69.4 . . . .
(2) The Appeal Division has, in respect of appeals made pursuant to sections 70, 71, and 77, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction, that may arise in relation to the making of a removal order or the refusal to approve an application for landing made by a member of the family class.20
The second reason why the applicant's argument must fail is more directly related to appeal rights in general. In the present case the appeal right is conferred by subsection 70(1) of the Act. It provides:
70. (1) Subject to subsections (4) and (5), where a removal order or conditional removal order is made against a permanent resident or against a person lawfully in possession of a valid returning resident permit issued to that person pursuant to the regulations, that person may appeal to the Appeal Division on either or both of the following grounds, namely,
(a) on any ground of appeal that involves a question of law or fact, or mixed law and fact; and
(b) on the ground that, having regard to all the circumstances of the case, the person should not be removed from Canada.
Paragraph 70(1)(a) thus confers an appeal right on any ground that involves a question of law or fact. In all logic, the status of a person seeking to appeal an adjudicator's removal order cannot be invoked to deny the appeal right conferred by paragraph 70(1)(a) where any conclusion drawn with respect to the appellant's status is necessarily a consequence of a finding of fact or law made by the adjudicator. The suggestion that the person concerned has no status because he or she was not "lawfully" admitted in the first place cannot take away the right of appeal on that very question.
It thus seems clear that "lawful" permission or admission, as the case may be, contemplates the formal admission of the person concerned into the country. This is how the term "lawful" is used in the Citizenship Act ,21 a statute that is in pari materiae with the Immigration Act.22 Subsection 10(2) of the Act provides:
10. . . .
(2) A person shall be deemed to have obtained citizenship by false representation or fraud or by knowingly concealing material circumstances if the person was lawfully admitted to Canada for permanent residence by false representation or fraud or by knowingly concealing material circumstances and, because of that admission, the person subsequently obtained citizenship. [Underlining added.]
Although the Immigration Act does not reproduce this precise language, it seems clear having regard to the statutory scheme reviewed above that "lawful" permission under subsection 2(1) of the Act must be construed the same way. In the end, "lawful" permission means permission ostensibly given by the appropriate authority regardless of how it was obtained.
This is not a matter of giving a dishonest immigrant more rights than those afforded to an honest immigrant. This is a matter of respecting Parliament's clearly expressed will. To the extent that Parliament wishes that a positive determination by an adjudicator under paragraph 27(1)(e) be without appeal, the appropriate amendment should be brought to the Act.
For these reasons, the application for judicial review is dismissed and the question stated in paragraph 24 of these reasons is certified.
1 P. 225 of the Record.
2 P. 166 of the Record.
3 P. 217 of the Record.
4 Pp. 208-213 of the Record.
5 That is a person convicted of an offence for which a term of imprisonment of five or more years may be imposed.
6 That is a person who was granted landing by reason of improperly obtained document or by misrepresentation of a material fact.
7 Minister of Employment and Immigration v. Wong (1993), 153 N.R. 237 (F.C.A.); Canada (Minister of Citizenship and Immigration) v. Hundal, [1995] 3 F.C. 32 (T.D.).
8 (1996), 123 F.T.R. 153 (F.C.T.D.).
9 (1997), 39 Imm. L.R. (2d) 97 (F.C.T.D.).
10 This approach was developed by Rothstein J. in Hundal, supra.
11 This exception stems from the decision of the Court of Appeal in Canada (Minister of Employment and Immigration) v. De Decaro, [1993] 2 F.C. 408 and was termed as such by Rothstein J. in Hundal, supra.
12 (1996), 36 Imm. L.R. (2d) 275 (F.C.T.D.).
13 The basis for the distinction is that there would have been no misrepresentation by the applicant as to her status. (See p. 101, para. 14 of the decision.) However, it seems clear from the facts in Tran that the applicant misrepresented her status at the port of entry.
14 Applicant's memorandum of fact and law, para 15. The applicant seems to misconstrue the meaning of a "supervening act" as the respondent's marriage pre-dated his visa application. The decision of the Court of Appeal in De Decaro , supra, illustrates what is a "supervening act".
15 Applicant's memorandum of fact and law, para 16.
16 Applicant's memorandum of fact and law, para 17.
17 Respondent's memorandum of fact and law, para 10.
18 I therefore assume for present purposes that the respondent was properly dealt with by virtue of s. 27(1) and was not a person to which s. 27(2)(g) [as am. by S.C. 1992, c. 49, s. 16] applied.
19 That is landed in accordance with the definition of the word "landing" in s. 2(1).
20 It is noteworthy that s. 69.4(2) provides the Appeal Division with the authority to determine questions of law, fact as well as questions of jurisdiction. Had Parliament intended for the adjudicator to have the final word regarding permanent resident status, s. 69.4(2) would have been worded differently.
21 R.S.C., 1985, c. C-29.
22 The close connection between these statutes is discussed by McGillis J. in Canada (Minister of Citizenship and Immigration) v. Copeland, [1998] 2 F.C. 493 (T.D.).