Judgments

[1997] 3 F.C. 299

IMM-3601-95

Abu Tayub Mohammed (Applicant)

v.

Minister of Citizenship and Immigration (Respondent)

Indexed as: Mohammed v. Canada (Minister of Citizenship and Immigration) (T.D.)

Trial Division, MacKay J.—Ottawa, October 8, 29, 1996 and May 12, 1997.

Citizenship and Immigration — Exclusion and removal — Removal of permanent residents — Judicial review of IRB, Appeal Division’s affirmation of Adjudicator’s decision applicant entering Canada by reason of “fraudulent or improper means or misrepresentation” of “material fact” pursuant to Immigration Act, s. 27(1)(e) — Wording of provision interpreted — Applicant not disclosing change in marital status because unaware necessary to do so — Immigration forms completed by others — Not understanding English, French — Person may only enter Canada, if at time of entry, fulfils requirements of Act, Regulations — Onus of establishing that on applicant — Duty to inform immigration officials of any change in circumstances relevant to issuance of visa, both at stage of process for gaining admission to Canada, and upon entering Canada, particularly in regard to marital status — Lack of knowledge of English, French not absolving applicant of failure to meet statutory obligation.

Constitutional law — Charter of Rights — Life, liberty and security — Judicial review of IRB, Appeal Division’s affirmation of Adjudicator’s decision applicant entering Canada by reason of “fraudulent or improper means or misrepresentation” of “material fact” pursuant to Immigration Act, s. 27(1)(e) — Applicant not disclosing change in marital status as unaware necessary to do so — S. 27(1)(e) not contravening Charter, s. 7 as no violation of principles of fundamental justice — S. 27(1)(e) dealing with circumstances of misrepresentation of material facts by one entering Canada — No larger social purpose, no public redressing of wrong done to society to maintain public order and welfare within public sphere of activity — No public goal of deterrence — Application of regime provided by Parliament for removal on ground landing improperly obtained not violating principles of fundamental justice.

Constitutional law — Charter of Rights — Criminal process — Deportation of permanent resident granted landing by misrepresentation of marital status not cruel, unusual treatment contrary to s. 12 — No evidence deportation would expose applicant to danger of persecution, torture, death — Nothing in applicant’s circumstances “grossly disproportionate” or so excessive as to outrage public standards of decency.

Constitutional law — Charter of Rights — Equality rights — Judicial review of IRB, Appeal Division’s affirmation of Adjudicator’s decision applicant entering Canada by reason of “fraudulent or improper means or misrepresentation” of “material fact” pursuant to Immigration Act, s. 27(1)(e) — Applicant not disclosing change in marital status because unaware necessary to do so — Ignorance of law, Canada’s official languages, neither “disability” nor any other enumerated ground under Charter, s. 15 — Not “analogous” ground of discrimination, but personal capacities particular to applicant — Differential treatment based on particular personal capacities, divorced from historically disadvantaged group, rarely characterized as discrimination.

This was an application for judicial review of the Immigration and Refugee Board, Appeal Division’s decision affirming the Adjudicator’s decision that the applicant had gained entry to Canada by reason of “fraudulent or improper means or misrepresentation” of a “material fact” pursuant to Immigration Act , paragraph 27(1)(e). A removal order then issued against the applicant. Paragraph 27(1)(e) requires an immigration officer to forward a written report to the Deputy Minister concerning a permanent resident who has been granted landing by reason of any fraudulent or improper means or misrepresentation of a material fact, whether exercised or made by himself or any other person. The applicant, a citizen of Bangladesh, arrived in Canada as a dependant of his father. Shortly before leaving Bangladesh, the applicant had married, but both his immigration visa and his landing document reported his marital status as “single”. He did not notify the immigration officer on his arrival that he had married because he was unaware that it was necessary to do so. Because he did not understand English or French, an agent had completed the applicant’s immigration documents, but had not read to him the instructions requiring him to notify Canadian immigration officials of any change in marital status. Upon landing, because none of the family members understood English or French, the immigration officer merely examined the passports of each family member and gestured each to sign the record of landing document. The applicant simply obeyed and the officer completed the rest of the document. The Adjudicator found misrepresentation by the applicant by signing the application for permanent residence which contained a requirement to report any change in marital status which he did not do, and by signing the record of landing at the port of entry which indicated his marital status as single when in fact he was married.

The issues were (1) whether Immigration Act, paragraph 27(1)(e) excludes “innocent” misrepresentations from its scope; (2) whether paragraph 27(1)(e) contravenes Charter, sections 7, 12 and 15; and (3) whether the Appeal Division’s refusal to exercise its equitable jurisdiction constituted an erroneous finding of fact made in a perverse or capricious manner without regard for the material before it.

Held, the application should be dismissed.

(1) Based both on the language of paragraph 27(1)(e) and the scheme of the Act as it pertains to visas and to landing, the Appeal Division did not err in its interpretation of paragraph 27(1)(e). “Whether exercised or made by himself or any other person” clearly refers to both “means” (in the case of “exercise”) and “misrepresentation” (in the case of “made”). “Fraudulent and improper” should not be read so as to modify both “means” and “misrepresentation”. To interpret “misrepresentation” in paragraph 27(1)(e) as being restricted to wilful or intentional misrepresentation, of which the applicant must be subjectively aware, would limit the final phrase of the provision, so that a misrepresentation committed by a person other than the applicant of which the applicant was unaware would not be held to constitute a misrepresentation under paragraph 27(1)(e). There need not be active concealment for there to be “misrepresentation”. Silence itself may also be an act of conscious concealment. Also, as a misrepresentation under paragraph 27(1)(e) could be made by “another person”, the provision could not be so limited as to apply only to active concealment on the part of the applicant. Finally, to require a misrepresentation to be made “knowingly” or “wilfully” by the applicant necessitates reading into the statute words not expressed by Parliament. Had Parliament intended to inject a mens rea or subjective element of intent into paragraph 27(1)(e), presumably it would have done so. The duty of candour owed by the applicant depends on the materiality of the information withheld. A change in marital status is a “material fact” for the purposes of paragraph 27(1)(e) in so far as the failure to disclose it may reasonably have “the effect of foreclosing or averting further inquiries”. Furthermore, the information which the applicant failed to disclose was not information regarding which he was truly subjectively unaware. Nor was it information the knowledge of which was beyond his control.

A person may only gain admission to this country, if at the time of entry, he or she fulfils the requirements of the Act and the Regulations and the onus of establishing that rests on the applicant. The applicant had a duty to inform immigration officials of any change in circumstances relevant to the issuance of his visa, both at the stage of the process for gaining admission to Canada, as well as upon entering Canada, particularly in regard to his marital status. That the applicant was unable to understand or communicate in English or French did not absolve him of his own failure to meet the obligation imposed upon him by the Immigration Act.

(2) Paragraph 27(1)(e) did not violate Charter, section 7, which guarantees the right not to be deprived of liberty except in accordance with the principles of fundamental justice because there was no violation of the principles of fundamental justice. Paragraph 27(1)(e) deals with circumstances of misrepresentation of material facts by one entering Canada. It has no larger social purpose, no public redressing of a wrong done to society, to maintain public order and welfare within a public sphere of activity. Nor is there a public goal of deterrence at issue. The applicant was simply denied a benefit or status on the basis that it was improperly obtained in the first place. Application of the regime provided by Parliament in section 27 for the removal of a person from Canada on the ground that landing was improperly obtained did not violate the principles of fundamental justice. It is not a principle of fundamental justice that an individual who seeks the benefit of a statutory regime, yet fails to make himself aware of, or to satisfy, the requirements imposed by that regime, is entitled to special concessions from its enforcement.

The circumstances of this case did not establish discrimination prohibited by section 15. Ignorance of the law, and the inability to converse in either of Canada’s official languages, is not a “disability”, does not fall within any of the other enumerated grounds of discrimination, and is not an “analogous” ground of discrimination under section 15. That the applicant does not speak English or French, and has little formal education are personal capacities, particular to the applicant, not “immutable personal characteristics”. Nor was the applicant a member of a particular group suffering “historical disadvantage”, or one which is a “discrete and insular minority” deserving of the protection of section 15. Differential treatment of an individual based solely on his or her own particular personal capacities, divorced from an historically disadvantaged group, will rarely be characterized as discrimination.

To deport the applicant in the present circumstances would not constitute cruel and unusual treatment for the purposes of Charter, section 12. Whether deportation violates section 12 depends on the particular circumstances of the individual. There was nothing so “grossly disproportionate” as to outrage decency in the particular circumstances of the applicant. There was no evidence that deportation to Bangladesh would expose the applicant to a danger of persecution, torture or death. Removal of an individual from Canada on the basis that the information upon which he was granted landing in the first place was not truthful, is not, “grossly disproportionate”, nor would it be excessive so as to violate public standards of decency.

(3) Paragraph 70(1)(b) empowers the Appeal Division to determine, “having regard to all the circumstances of the case” whether or not a permanent resident should be removed from Canada. Where this discretion has been exercised in a bona fide manner, not influenced by irrelevant considerations and is not arbitrarily or illegally exercised, the Court is not entitled to interfere, even if it might have exercised that discretion differently had it been in the position of the Appeal Division. During the hearing before the Appeal Division, the applicant made submissions concerning humanitarian and compassionate grounds which, he submitted, warranted the exercise of equitable jurisdiction by the Appeal Division. However, on the basis of the evidence before it, the tribunal opted not to exercise its equitable jurisdiction with respect to the applicant’s pending removal. This conclusion was, on the evidence, reasonably open to the Appeal Division.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 7, 11, 12, 15.

Immigration Act, R.S.C., 1985, c. I-2, ss. 2(1), 12(1) (as am. by S.C. 1992, c. 49, s. 7), 19(2)(d), 27(1)(e) (as am. idem, s. 16), (f), 32(2) (as am. idem, s. 21), 70(1)(b), 94(1)(i).

Immigration Act, 1976, S.C. 1976-77, c. 52, s. 27(1)(d)(i),(e).

Immigration Regulations, 1978, SOR/78-172, s. 12 (as am. by SOR/83-540, s. 2).

CASES JUDICIALLY CONSIDERED

APPLIED:

D’Souza v. Minister of Employment and Immigration, [1983] 1 F.C. 343(C.A.); Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; (1989), 56 D.L.R. (4th) 1; [1989] 2 W.W.R. 289; 34 B.C.L.R. (2d) 273; 25 C.C.E.L. 255; 10 C.H.R.R. D/5719; 36 C.R.R. 193; 91 N.R. 255; R. v. Smith (Edward Dewey), [1987] 1 S.C.R. 1045; (1987), 40 D.L.R. (4th) 435; [1987] 5 W.W.R. 1; 15 B.C.L.R. (2d) 273; 34 C.C.C. (3d) 97; 58 C.R. (3d) 193; 31 C.R.R. 193; 75 N.R. 321; R. v. Goltz, [1991] 3 S.C.R. 485; (1991), 11 W.A.C. 161; 61 B.C.L.R. (2d) 145; 5 B.C.A.C. 161; 67 C.C.C. (3d) 481; 8 C.R. (4th) 82; 7 C.R.R. (2d) 1; 31 M.V.R. (2d) 137; 131 N.R. 1; Boulis v. Minister of Manpower and Immigration, [1974] S.C.R. 875; (1972), 26 D.L.R. (3d) 216.

DISTINGUISHED:

Medel v. Canada (Minister of Employment and Immigration), [1990] 2 F.C. 345 (1990), 10 Imm. L.R. (2d) 274; 113 N.R. 1 (C.A.); Okwe v. Canada (Minister of Employment and Immigration) (1991), 16 Imm. L.R. (2d) 126; 136 N.R. 261 (F.C.A.); Barrera v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 3 (1992), 99 D.L.R. (4th) 264; 18 Imm. L.R. (2d) 81; 151 N.R. 28 (C.A.).

CONSIDERED:

Hurd v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 594 (1988), 90 N.R. 31 (C.A.); Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711; (1992), 90 D.L.R. (4th) 289; 2 Admin. L.R. (2d) 125; 72 C.C.C. (3d) 214; 8 C.R.R. (2d) 234; 16 Imm. L.R. (2d) 1; 135 N.R. 161.

REFERRED TO:

Minister of Manpower and Immigration v. Brooks, [1974] S.C.R. 850; (1973), 36 D.L.R. (3d) 522; Juayong v. Minister of Employment and Immigration (1988), 99 N.R. 78 (F.C.A.); 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.); 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.); Peralta v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1507 (T.D.) (QL); R. on the information of Mark Caswell v. Corporation of City of Sault Ste. Marie, [1978] 2 S.C.R. 1299; (1978), 85 D.L.R. (3d) 161; 40 C.C.C. (2d) 353; 7 C.E.L.R. 53; 3 C.R. (3d) 30; 21 N.R. 295; R. v. Wigglesworth, [1987] 2 S.C.R. 541; (1987), 45 D.L.R. (4th) 235; [1988] 1 W.W.R. 193; 61 Sask. R. 105; 37 C.C.C. (3d) 385; 60 C.R. (3d) 193; 81 N.R. 161; Egan v. Canada, [1995] 2 S.C.R. 513; (1995), 124 D.L.R. (4th) 609; C.E.B. & P.G.R. 8216; 95 CLLC 210-025; 29 C.R.R. (2d) 79; 182 N.R. 161; 12 R.F.L. (4th) 201; Miron v. Trudel, [1995] 2 S.C.R. 418; (1995), 124 D.L.R. (4th) 693; 29 C.R.R. (2d) 189; [1995] I.L.R. 1-3185; 10 M.V.R. (3d) 151; 181 N.R. 253; 81 O.A.C. 253; 13 R.F.L. (4th) 1; Thibaudeau v. Canada, [1995] 2 S.C.R. 627; (1995), 124 D.L.R. (4th) 449; 29 C.R.R. (2d) 1; [1995] 1 C.T.C. 382; 95 DTC 5273; 182 N.R. 1; 12 R.F.L. (4th) 1; Gittens (In re), [1983] 1 F.C. 152 (1982), 137 D.L.R. (3d) 687; 68 C.C.C. (2d) 438; 1 C.R.R. 346 (T.D.).

APPLICATION for judicial review of the IRB, Appeal Division’s affirmation of an Adjudictor’s decision that the applicant had gained entry to Canada by reason of “fraudulent or improper means or misrepresentation” of a “material fact” pursuant to Immigration Act, paragraph 27(1)(e) when he failed to disclose a change in marital status because, due to lack of knowledge of either official language, he was unaware that it was necessary to do so. Application dismissed.

COUNSEL:

Emilio S. Binavince and Riri Shen for applicant.

Josephine A. L. Palumbo for respondent.

SOLICITORS:

Binavince, Merner, Burton, Massie, Ottawa, for applicant.

Deputy Attorney General of Canada for respondent.

The following are the reasons for order rendered in English by

MacKay J.: This is a judicial review application to review and set aside a decision of the Appeal Division of the Immigration and Refugee Board (Appeal Division) dated December 6, 1995, which affirmed the earlier decision of an Adjudicator. The latter had determined that the applicant had gained entry to Canada by reason of “fraudulent or improper means or misrepresentation” of a “material fact” pursuant to paragraph 27(1)(e) of the Immigration Act, R.S.C., 1985, c. I-2. [as am. by S.C. 1992, c. 49, s. 16] (the Act) and as a result the applicant was ordered to be removed from Canada, pursuant to subsection 32(2) [as am. idem, s. 21] of the Act.

The applicant, born November 8, 1968, is a citizen of Bangladesh. In 1990, the applicant applied, with his family, as a dependant of his father, for permanent residence in Canada. They received their visas in July 1992, and on December 15, 1992, the applicant arrived with his parents and five siblings in Canada. Upon arriving in Canada at the Mirabel Airport in Montréal, the applicant and his family met with immigration officials, following which they were granted permanent residence.

In November 1992, shortly before leaving Bangladesh, the applicant was married. However, upon arriving in Canada, the applicant had not indicated on his immigration visa and his landing document did not indicate that he had married, but rather his marital status was reported as being “single”. Nor, upon his arrival, did he notify the immigration officer that he had married.

When immigration officials subsequently learned of the applicant’s true martial status, an inquiry was held before an Adjudicator who found the applicant had been granted landing by reason of “misrepresentation” of a “material fact”, pursuant to paragraph 27(1)(e) of the Act, and ordered him removed from Canada. This decision was upheld by the Appeal Division, and it is this decision that the applicant now questions by seeking judicial review.

Background Facts

The background facts are briefly as follows. The applicant and his family are from the Village of Middle Halshihahar, Chittagong, Bangladesh. In September 1990, the applicant applied, with his parents and five siblings for permanent residence in Canada, to be sponsored by his brother, a permanent resident living in Ottawa. According to the applicant, at that time neither he nor any of his family were literate in either English or French, and he was unable to complete his immigration documents himself. As a result, he and his family relied upon one Janghir Alaam, a man alleged to be the only person in the Mohammeds’ village able to read and write English, to prepare the application for permanent residence and supplementary immigration documents on behalf of the applicant and his family.

The application for permanent residence is a straightforward application form, in which an applicant is asked to provide particulars regarding, inter alia, date of birth, marital status, work history, education, sponsor’s name, and ability to communicate in both official languages. On the first page of the application form is a statement of instructions. At the top of this page appears a box in which the applicant is advised as follows:

BEFORE COMPLETING, PLEASE READ

THE FOLLOWING CAREFULLY THEN

DETACH THIS PAGE AND

RETAIN IT FOR YOUR INFORMATION.

Notwithstanding this, however, the applicant states that although Mr. Alaam completed these documents on behalf of the family, he did not read to the applicant or his family the instructions accompanying the application. In particular, the applicant states that at no time did Mr. Alaam inform the applicant or his family that he was required to notify Canadian immigration officials in the event of any change in marital status. This requirement is clearly stated in paragraph four of the instruction page to the application form, which provides as follows:

4. Should the answers to items 9 [marital status], 27 or 31 change at any time prior to departure for Canada, you are required to report such change and delay your departure until informed by the Canadian office dealing with your application that you may still proceed to Canada. [Emphasis added.]

On December 4, 1991, the applicant and his family were interviewed at the Canadian High Commission in Dhaka, Bangladesh. The applicant states that, although there was an interpreter present, at no time during the interview was he asked about his marital status, nor was any mention made of the requirement to notify immigration officials of any change in status. According to the applicant, the only questions he was asked pertained to his name, age, profession and relationship to his sponsor.

On July 30, 1992, the applicant and his family received their visas to enter Canada. On November 6, 1992, approximately five weeks prior to leaving for Canada, the applicant was married to Shilpi Meherun Nesa. According to the applicant, this marriage was arranged by his father in late October 1992, just one week prior to the ceremony. Despite the requirement noted above, stated on his permanent residence application, the applicant did not notify immigration officials of the change in his marital status prior to leaving Bangladesh. His reason for not doing so, he states, is that he was unaware it was necessary to do so.

The applicant and his family arrived in Canada at Mirabel Airport in Montréal on December 15, 1992. Upon landing, they were required to undergo the standard immigration formalities. The applicant’s father, as the principal applicant, was processed first, followed by each member of the family. There was no interpreter present and because none of the members of his family could read or speak either English or French, the applicant states that no interview was conducted upon landing. Instead, according to the applicant, the immigration officer merely examined the passports of each family member and gestured each to sign the record of landing document. At that time, he states he simply obeyed the immigration officer, who gestured to the applicant to sign the record of landing at the place indicated, before the officer completed the rest of the document himself.

Particularly relevant in the record of landing are Items 9 and 13. In Item 9, the applicant’s marital status is listed as “single”. In Item 13, in response to the question as to whether the applicant has any dependants, the answer “no” is circled. This record, dated December 15, 1992, was signed by the applicant. Once the immigration officer had completed this process, the applicant and his family were granted permanent residence in Canada.

Shortly thereafter, the applicant sought to sponsor his new wife to come to Canada, at which time immigration officials were alerted to his true marital status. Subsequently, on March 8, 1994, a report was issued by an immigration officer alleging that the applicant was granted landing “by reason of any fraudulent or improper means or misrepresentation of any material fact”, pursuant to paragraph 27(1)(e) of the Act, which provides as follows:

27. (1) An immigration officer or 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 or any other person, ….

The “material fact” alleged to have been misrepresented by the applicant was that he was single when he was, in fact, married. As a result of this allegation, on August 18, 1994, a direction for inquiry was issued.

On September 21, 1994, an inquiry was held before the Adjudication Division of the IRB. The Adjudicator ordered the applicant to be removed from Canada on the ground that he was determined to be a person described in paragraph 27(1)(e) of the Act. The Adjudicator found misrepresentation by the applicant by signing the application for permanent residence which contained a requirement to report any change in marital status to a visa officer, which he did not do, and by signing the form 1000 (record of landing) at the port of entry which indicated his marital status was single when the applicant was, in fact, married. In rendering his decision, the Adjudicator made the following comments, among others:

Your counsel argues that your intention was not to mislead or misrepresent or to defraud the government. I recognize that you are a non-educated person and unsophisticated in the ways of Immigration rules and procedures but in my view, that should be no excuse for not complying with the law. You signed a document declaring that everything was true and correct. To stand behind the defense of ignorance and lack of education would create a different standard than that for someone who is literate and educated. By that, I do not mean your actions to be deliberate and wilful.

…

Therefore, Mr. Mohammed, I find that you are a person as described in paragraph 27(1)(e) in that you were granted landing by misrepresentation of a material fact exercised by yourself. I will provide you with a copy of the deportation order. I wish to advise you that if you are removed from Canada, if you wish to come back you would require the written consent from the Minister of Immigration.

The order of the Adjudicator that the applicant be deported was made pursuant to subsection 32(2) of the Act which provides as follows:

32. …

(2) Where an adjudicator decides that a person who is the subject of an 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.

The applicant appealed the removal order to the Appeal Division. By decision dated December 6, 1995, the Appeal Division dismissed the appeal and upheld the removal order of the Adjudicator.

Thereafter, on December 21, 1995, the applicant applied for judicial review. The parties first appeared before me on October 8, 1996 when the hearing was adjourned to allow the applicant time to file and serve notices of a constitutional question. Thereafter the hearing was resumed and completed on October 29, 1996.

Position of the Applicant

The position of the applicant is based on three grounds, alleging error by the Appeal Division: (1) in its interpretation of the Act; (2) in its application of the Act as being contrary to the Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]]; and (3) in its findings of fact.

The statutory interpretation argument put forth by counsel for the applicant centres around his submission that the Appeal Division, upholding the decision of the Adjudicator, erred in law by interpreting paragraph 27(1)(e) to include within the scope of the phrase “any fraudulent or improper means or misrepresentation” the applicant’s “honest, invincible ignorance” that he was required to report any change in his marital status. In this regard, counsel for the applicant submits that such an interpretation of paragraph 27(1)(e) is incorrect in that a proper construction of the provision excludes “innocent” misrepresentations from its scope.

The Charter argument advanced by counsel for the applicant is essentially that the Appeal Division’s interpretation of paragraph 27(1)(e) would contravene sections 7, 12 and 15 of the Charter.

The final argument of the applicant is that the decision of the Appeal Division is based on an erroneous finding of fact made in a perverse or capricious manner without regard for the material before it. In particular, counsel for the applicant submits that the refusal of the Appeal Division to exercise its equitable jurisdiction constitutes a reviewable error.

Each of the arguments put forward by counsel for the applicant is dealt with in turn in the balance of these reasons, which explain the bases on which an order is now issued dismissing the application for judicial review.

1.         Statutory Interpretation

Having carefully reviewed the statutory interpretation arguments presented by counsel, and having considered the jurisprudence regarding what constitutes a “misrepresentation” of a “material fact” pursuant to paragraph 27(1)(e) of the Act, I come to the conclusion that the arguments of counsel for the applicant on this first ground must fail. I reach this conclusion both on the basis of the particular language of paragraph 27(1)(e), as well as in light of the scheme of the Act as it pertains to the issuance of visas and to landing.

(a)       The Language of paragraph 27(1)(e)

Counsel for the applicant submits that the Appeal Division erred in law in upholding the decision of the Adjudicator which, he suggests, is based on an erroneous interpretation of the phrase “fraudulent or improper means or misrepresentation” found in paragraph 27(1)(e) of the Act. This argument, counsel for the applicant bases on two grounds. The first, is that the words “fraudulent or improper” should be interpreted as modifying both “means” and “misrepresentation”. Secondly, he submits that mere non-disclosure does not constitute “misrepresentation”. He states that because the applicant was honestly not aware of the duty to disclose, he was incapable of actively withholding the information, and therefore was not capable of “misrepresentation” within the meaning of paragraph 27(1)(e) of the Act.

In my opinion, the language of paragraph 27(1)(e) contemplates three instances in which an immigration officer would be required to forward a written report to the Deputy Minister concerning a permanent resident who has been granted landing. These are where a permanent resident has been granted landing: (i) by reason of possession of a false or improperly obtained passport, visa or other document pertaining to his admission; (ii) by reason of any fraudulent or improper means; or (iii) by reason of misrepresentation of a material fact, whether exercised or made by himself or any other person.

While I believe that the phrase “whether exercised or made by himself or any other person” clearly refers to both “means” (in the case of “exercise”) and “misrepresentation” (in the case of “made”), I am not persuaded that “fraudulent and improper” should be read so as to modify both “means” and “misrepresentation”. In my view, such an interpretation is simply not supported by the language of paragraph 27(1)(e) as a whole.

First, the addition of the word “improper” to “misrepresentation”, if not in fact redundant, adds little meaning to the word “misrepresentation”. More significantly, however, to add “fraudulent and improper”, and thereby, as contemplated by counsel for the applicant, import the requirement of subjective knowledge of the misrepresentation, would render meaningless the final component of paragraph 27(1)(e) which provides “whether exercised or made by himself or any other person.” To interpret “misrepresentation” in paragraph 27(1)(e) as being restricted to wilful or intentional misrepresentation, of which the applicant must be subjectively aware, would limit the final phrase of the provision so that a misrepresentation committed by a person other than the applicant of which the applicant was unaware would not be held to constitute a misrepresentation under paragraph 27(1)(e) of the Act.

In my opinion, the interpretation advanced by counsel for the applicant renders paragraph 27(1)(e) not only inconsistent, but reads into it a requirement of mens rea or wrongful intent which is simply not supported by the plain language of the provision. Nor, in my view, is such an interpretation supported by the jurisprudence of this Court, exemplified by D’Souza v. Minister of Employment and Immigration.[1]

In that case a mother and son applied for admission as permanent residents to Canada. The son, as his mother’s dependant, made his own application, in which there were no errors. His mother’s application, however, contained misrepresentation of a material fact about him, of which he was not aware. The principal argument on behalf of the applicant was that because he did not make, and was unaware that his mother had made, a misrepresentation, paragraph 27(1)(e) of the Act [S.C. 1976-77, c. 52] did not apply to him. Indeed, it was urged that given the severe consequences of deportation resulting from finding him to be a person under paragraph 27(1)(e), the provision should be read as inapplicable where, at the time of being granted entry, the applicant was subjectively unaware a misrepresentation had been made. This argument was dismissed by the Federal Court of Appeal, which held that although the evidence may suggest the applicant was truly unaware of the misrepresentation, the interpretation of paragraph 27(1)(e) as requiring an element of subjective knowledge was simply not supported by the language of the provision. On this point, Thurlow C.J., writing for the Court stated as follows:

But be that as it may, to adopt the proposed construction of the statute would, in my opinion, require the addition of words limiting its application to situations where the person concerned had knowledge of the making of the statement. I do not think the Court can supply or insert such wording. If the statute is to be so limited it is, in my opinion a matter for Parliament. The submission therefore fails.[2]

I also reject the related argument put forth by counsel for the applicant that in order for there to be “misrepresentation”, there must be active concealment. In my view, this is an interpretation of the word that is too narrow. This argument I reject based on the following three grounds.

First, this definition, in my opinion, draws a false distinction in the sense that silence itself may also be an act of conscious concealment. One can misrepresent as easily and effectively by silence as one can by actively stating a mistruth. Were the definition advanced by counsel for the applicant to be adopted, in no case where an individual chose to keep quiet rather than put forward accurate and relevant information could that person ever be found to have misrepresented a material fact. Similarly, no person who refused to answer a question and instead allowed outdated or false information to be represented as accurate could ever be found to have misrepresented a “material fact” pursuant to paragraph 27(1)(e).

Second, in my opinion, such an interpretation is simply not supported by paragraph 27(1)(e) which, by its language, encompasses any misrepresentation “made by himself or by any other person”. Given that a misrepresentation under this provision could be made by “another person”, as in D’Souza, I fail to see how the provision could be read so as to be limited in its application to only apply to active concealment on the part of the applicant.

Third, the interpretation advanced by counsel for the applicant, that a misrepresentation must be made “knowingly” or “wilfully” by the applicant requires reading into the statute words not expressed by Parliament. In my opinion, the absence of such language gives rise to the implication that such a requirement was deliberately excluded by Parliament. Had Parliament intended to inject a mens rea or subjective element of intent into paragraph 27(1)(e), presumably it would have done so. In this manner, paragraph 27(1)(e) may be usefully contrasted with other provisions of the Act, such as those found in section 94 which identifies specific offences under the Act, which explicitly contain mens rea or subjective knowledge as a required element of the provision.[3] Indeed, even within section 27 itself, paragraph 27(1)(f) states that an immigration officer shall issue a written report to the Deputy Minister regarding a permanent resident who:

27. (1) …

(f) wilfully fails to support himself or any dependent member of his family in Canada,

As support for the argument that paragraph 27(1)(e) requires mens rea or subjective intent in order for there to be “misrepresentation” of a “material fact”, counsel for the applicant relies on the case of Medel v. Canada (Minister of Employment and Immigration).[4] According to counsel for the applicant, the Medel case stands for the proposition that in order for there to be “misrepresentation” pursuant to paragraph 27(1)(e), the misrepresentation must be made “knowingly”. In my opinion, Medel may be distinguished from the case at bar.

In Medel, the appellant, a resident of Honduras, applied to come to Canada under the sponsorship of her husband, a Canadian citizen. She received a visa, however, prior to her departure, her husband withdrew his sponsorship without telling her. The Canadian Embassy in Guatemala City, was aware the sponsorship had been withdrawn; however, it did not disclose this to her, but instead requested that she return her visa to correct an “error”. The appellant, believing that her visa in fact contained no error, did not return it, and instead used it to enter Canada. Upon landing in Canada, the appellant, speaking only Spanish, and without the aid of an interpreter, did not disclose to the immigration officer that the Embassy had requested she return her visa. An inquiry was subsequently held following which the appellant was found by an adjudicator not to be a person described in paragraph 27(1)(e). This finding, however, was reversed by the Immigration Appeal Board and a suspended deportation order issued. The appellant appealed to the Federal Court of Appeal, which set aside the decision of the Board on the basis that the appellant was not granted landing by any “fraudulent or improper means” in that she “reasonably believed” she was not withholding information relevant to her admission.

In my opinion, in Medel the decision that the appellant was not granted landing by reason of any fraudulent or improper means appears to have been based on two grounds: (1) that the information which the appellant failed to disclose was not “material” in the sense that it was not “by reason of” the information being withheld that the appellant was granted landing; and (2) the material information, that her husband had withdrawn his sponsorship, was not only information of which the appellant was subjectively unaware, it was also information regarding which she had been misled or at least had not been informed by the Canadian Embassy. Based on these circumstances, the Court concluded, the appellant was “[c]learly … subjectively unaware … she was holding anything back”, and it was therefore objectively reasonable that the appellant “reasonably believed that at the border she was withholding nothing relevant to her admission”.[5]

The present circumstances may be distinguished from Medel on these two grounds. In Medel, the misrepresentation or non-disclosure in question was that the appellant did not volunteer to the immigration officer that the Embassy in Guatemala had requested the return of her visa because of an “error”. This information, MacGuigan J.A. suggested, was not “material” in the sense that it was not information which, as stated in Minister of Manpower and Immigration v. Brooks,[6] had “an inducing influence” on whether or not the appellant was granted landing. Focussing on this issue of “materiality” or the relevance of the “improper or fraudulent means” by which an applicant is granted landing, MacGuigan J.A. stated as follows:

It is common ground that immigration claimants owe the “positive duty of candour” on all material facts which denote a change in circumstances since the issuance of the visa that was recognized in this Court in Minister of Employment and Immigration v. Gudino, [1982] 2 F.C. 40(per Heald J.). The issue is as to what that duty of candour requires in the circumstances such as those at bar.

… in my view the real issue in the case at bar is rather as to the relevance of the means, as reasonably and objectively measured. The Court in Brooks gave no final answer on this question of materiality, but it was very much within its contemplation, particularly in relation to the very words under consideration in the case at bar [i.e. “fraudulent or improper means or misrepresentation” in s. 27(1)(e)] (per Laskin J. at pages 870-871):

In my opinion, if the materiality of matters on which no questions are asked is cognizable under s. 19(1)(e)(viii), it would be under the words “other fraudulent or improper means”. They are broad enough to embrace non-disclosure of facts which would be material to admission or non-admission if known.

…

Section 19(1)(e)(viii) … does, however, stipulate that where false or misleading information is the basis of deportation proceedings against a previously landed immigrant, it be shown that it was by reason of any such information that he came into or remained in Canada. The phrase “by reason of” imports something beyond the mere giving of false or misleading information; it connotes an inducing influence of the information, and hence I agree with the Immigration Appeal Board that it brings in materiality. It is on this basis that, in my opinion, the inadvertence or carelessness of an answer must be weighed as to its consequences; and it is in this connection, and not as importing any element of mens rea (as the Board stated) that the certification statement in the admission documents herein, namely, “my answers … are true … to the best of my knowledge” has significance for the purposes of s. 19(1)(e)(viii).[7] [Underlining added.]

On the basis of this interpretation of the significance of the “materiality” of the information withheld, MacGuigan J.A. concluded that given the information withheld—that the Embassy in Guatemala had requested the return of her visa, and that she did not produce for scrutiny the Embassy’s telegram to her—was not “material” in that “it might not have triggered any further inquiry at that time.”[8]

Further, MacGuigan J.A. concluded, the appellant was clearly “subjectively unaware that she was holding anything back”. She was not informed that her sponsorship was withdrawn, but instead was led to believe by the Embassy that a correction was necessary to enable her to use her visa, for which the Court notes the appellant had “reasonably deduced that there continued to be no problem respecting her admission.”[9]

In my opinion, the principle which arises from the above comments of MacGuigan J.A. in Medel is that the duty of candour owed by the applicant depends on the materiality of the information withheld. A change in marital status has repeatedly been held to constitute a “material fact” for the purposes of paragraph 27(1)(e) of the Act, in so far as the failure to disclose it, as stated in Brooks, supra, [at page 873] may reasonably have “the effect of foreclosing or averting further inquiries”.[10] In the present case, the information failed to be disclosed by the applicant, his change in marital status, was clearly “material” information in that it potentially would have had a direct or inducing influence on whether or not he was granted landing in Canada.

The present circumstances may also be distinguished from those in Medel on the basis that the information which the applicant failed to disclose was not information regarding which he was truly subjectively unaware. The applicant in the present case was not unaware that he was married. Nor was it information, as in Medel, the knowledge of which was beyond his control. This was not information which had been concealed from him or about which he had been misled by Embassy officials. The applicant’s alleged ignorance regarding the requirement to report such a material change in his marital status and his inability to communicate this information to an immigration officer upon arrival does not, in my opinion, constitute “subjective unawareness” of the material information as contemplated in Medel.

For these reasons, I reject the statutory interpretation arguments put forth by the applicant. As earlier noted, I reject these arguments, not only on the basis of the language of the provision, discussed above, but also on the basis that the applicant’s interpretation is not consistent with the scheme of the Act as it pertains to visas and to landing. I next turn to consideration of that scheme.

(b)       The Scheme under the Act Regarding Visas and Landing

Under the Act, the procedure to gain entry to this country is a two-stage approval process which involves (1) an initial assessment by a visa officer abroad who determines whether a visa should be issued to the applicant; and once the visa is issued, (2) an examination by an immigration officer at the port of entry and a determination by that officer whether the applicant should be granted landing.[11] In the Act, the responsibility of satisfying the visa officer and subsequently the immigration officer that the requirements of the Act and the regulations are met is clearly that of the applicant.

Section 9 [as am. by S.C. 1992, c. 49, s. 4] of the Act deals with requirements for applications for visas. Subsection 9(1) provides that every immigrant is required to apply for a visa prior to arriving at a port of entry. Subsection 9(2) provides that before a visa is granted, the applicant is assessed by a visa officer to determine whether the applicant should be granted landing. Subsection 9(3), which imposes upon an applicant for a visa an obligation to answer truthfully all questions that are put to him or her before the issuance of a visa, provides as follows:

9. …

(3) Every person shall answer truthfully all questions put to that person by a visa officer and shall produce such documentation as may be required by the visa officer for the purpose of establishing that his admission would not be contrary to this Act or the regulations.

Only when a visa officer is satisfied that it would not be contrary to the Act or regulations to grant landing to the applicant does subsection 9(4) provide for a visa to be issued to the applicant, to identify him or her as a person who meets the requirements for admission to Canada.

In the present case, upon applying for permanent residence, the applicant was placed under a positive obligation to inform Canadian Embassy officials of any change in circumstances relevant to the issuance of his visa. As earlier noted, this obligation was clearly indicated on paragraph four of the first page of applicant’s application for permanent residence, as follows:

4.   Should the answers to items 9 [marital status], 27 or 31 change at any time prior to departure for Canada, you are required to report such change and delay your departure until informed by the Canadian office dealing with your application that you may still proceed to Canada.

Once a visa has been issued, the immigrant is then able to present him or herself to an immigration officer at a port of entry. It is at this stage that a second examination is conducted, this time by an immigration officer, to determine once again if the person still meets the requirements of the Act and the regulations at the time they seek to enter Canada. Subsection 12(1) [as am. by S.C. 1992, c. 49, s. 7] of the Act provides:

12. (1) Subject to the regulations, every person seeking to come into Canada shall appear before an immigration officer at a port of entry, or at such other place as may be designated by a senior immigration officer, for examination to determine whether that person is a person who shall be allowed to come into Canada or may be granted admission.

Section 12 of the Regulations [Immigration Regulations, 1978, SOR/78-172 (as am. by SOR/83-540, s. 2)] imposes upon the holder of a visa the obligation of disclosing to an immigration officer, at a port of entry, all facts relevant to the issuance of his or her visa which have changed since the visa was issued or which were not disclosed at the time the visa was issued. Section 12 of the Regulations reads as follows:

12. An immigrant who has been issued a visa and who appears before an immigration officer at a port of entry for examination pursuant to subsection 12(1) of the Act is required

(a) if his marital status has changed since the visa was issued to him, or

(b) if any other facts relevant to the issuance of the visa have changed since the visa was issued to him or were not disclosed at the time of the issuance thereof,

to establish that at the time of the examination

(c) he and his dependants, …

meet the requirements of the Act, these Regulations, [and others], including the requirements for the issuance of a visa.

In this case, the applicant was clearly under an obligation, pursuant to paragraph 12(a) of the Regulations, to disclose to the immigration officer upon his arrival in Canada that his marital status had changed since the time his visa was issued in Bangladesh. As noted by MacGuigan J.A. in Medel, an applicant in such circumstances, owes a “positive duty of candour” to disclose to immigration officials all material facts denoting a change in circumstances since the issuance of his or her visa.

In my opinion, the argument of the applicant would shift the onus of disclosure, and responsibility for meeting the statutory requirements to obtain landing, from the applicant to immigration officials. The Act and the Regulations, in my view, are clear. A person is not entitled to entry simply by virtue of the fact that they possess an immigration visa. A person may only gain admission to this country, if, at the time of entry, he or she fulfils the conditions and requirements of the Act and the regulations, and the onus of establishing that rests on the applicant. Paragraph 19(2)(d) of the Act provides:

19. …

(2) No immigrant and, except as provided in subsection (3), no visitor shall be granted admission if the immigrant or visitor is a member of any of the following classes:

…

(d) persons who cannot and do not fulfil or comply with any of the conditions or requirements of this Act or the regulations or any orders or directions lawfully made or given under this Act or the regulations.

In the present case, the applicant had a duty to inform immigration officials of any change in circumstances relevant to the issuance of his visa. This duty was his at both stages of the process for gaining admission to Canada, to inform visa officials prior to leaving Bangladesh, as well as the immigration officer upon entering Canada, of any material change in circumstances since the issuance of his visa, particularly in regard to his marital status. As an applicant, it was his responsibility to meet the requirements of the procedure of which he sought to avail himself.

In my view, the fact that the applicant was unable to understand or communicate in English or French, while regrettable, does not absolve him of what is, at the end of the day, his own failure to meet the obligation imposed upon him by the Immigration Act. The applicant failed to meet his obligation to notify officials of the change in his marital status prior to leaving Bangladesh and upon entering Canada.

Prospective immigrants may arrive at a port of entry in this country with a visa in hand, and only their native language for communication, with little or no facility in Canada’s official languages. In my view, to impose upon immigration officials the obligation of reviewing every aspect of material information from each and every applicant with interpreters as may be necessary would place an onerous burden upon the state, and would put immigration officials in the role of investigators.

The responsibility of satisfying the requirements of the Act and the regulations to gain entry to Canada clearly falls upon the person seeking admission to this country. This obligation requires that an applicant disclose truthfully all material information, and any material change in that information, which is relevant to the issuance of a visa. This responsibility was placed on the applicant at the time of completing his application for permanent residence, and remained on the applicant at the time of his arrival in Canada.

2.         Charter Arguments

The second ground upon which the applicant seeks judicial review is that the interpretation of paragraph 27(1)(e) by the Adjudicator, and supported by the Appeal Division, violates sections 7, 12 and 15 of the Canadian Charter of Rights and Freedoms (the Charter). In particular, the applicant alleges that the Adjudicator’s interpretation, to include within paragraph 27(1)(e) “innocent and invincible error”, renders the provision invalid as infringing sections 7, 12 and 15 of the Charter. In my opinion, counsel for the applicant has not established violations of sections 7, 12 and 15 of the Charter that would result in the circumstances of this case, for the reasons which follow.

(a)       Section 7

The applicant submits that to interpret paragraph 27(1)(e) as an “absolute liability” offence violates section 7 of the Charter, and to remove the applicant from Canada on the ground of an “honest, invincible error” on his part, constitutes a deprivation of his liberty and security of person in a manner not in accordance with the principles of fundamental justice. In particular, counsel for the applicant urges that by denying the applicant an opportunity to avoid the severe consequences of deportation, by demonstrating his efforts to comply with the law, and that the “misrepresentation” in question arose from honest ignorance, violates the principles of fundamental justice and section 7 of the Charter.

I reject the argument of counsel that the applicant’s rights under section 7 of the Charter have been violated. In my view, section 7 is not here engaged, for there is no violation of the principles of fundamental justice in this case. Contrary to the suggestion implied by the argument of counsel, the applicant has not been charged with a penal or regulatory offence. There is, in my view, no “absolute liability” offence involved here. Nor, is a “due diligence” defence analysis appropriate, as the argument of the applicant would permit.

In my opinion, deportation in the context of paragraph 27(1)(e) of the Act contains none of the features generally associated with penal or regulatory offences. The provision deals with circumstances of misrepresentation of material facts by one entering Canada. It has no larger social purpose, no public redressing of a wrong done to society, to maintain public order and welfare within a public sphere of activity. Nor is there a public goal of deterrence at issue.[12] The applicant has simply been denied a benefit or status on the basis that it was improperly obtained in the first place. In this manner paragraph 27(1)(e) is a provision intended to regulate conduct within a limited sphere of activity in accordance with the policy of the Act.

The non-penal nature of deportation in these circumstances was considered by the Federal Court of Appeal in Hurd v. Canada (Minister of Employment and Immigration),[13] where MacGuigan J.A., in discussing whether deportation under subsection 27(1) of the Act constitutes an “offence” for the purposes of section 11 of the Charter, stated as follows:

The implication of all this case law is that a deportation proceeding should not be considered to be [an offence] within paragraph 11(h) of the Charter. … The purpose of the deportation proceedings is not any larger-than-personal social purpose, but merely to remove from Canada an undesirable person. It is individual deterrence, as it were, not social deterrence…. It cannot be supposed that deportation to a deportee’s country of birth is a true penal consequence. It may, in particular circumstances, amount to a grave personal disadvantage, but not to the kind of larger-than-merely-personal disadvantage to which paragraph 11(h) of the Charter is directed. Deportation is analogous, rather, to a loss of a licence or to dismissal from a police force, or to the forfeiture of a right to practice a profession.

The non-criminal character of deportation was in fact the very point decided by the Supreme Court in Reference as to the effect of the Exercise by this Excellency, the Governor General of the Royal Prerogative of Mercy upon Deportation Proceedings, [1933] S.C.R. 269, at 278, when section 40 of the Immigration Act (R.S.C. 1927, c. 93) was the precursor of subsection 27(1) of the present Act and sections 42 and 43 the predecessors of subsection 32(2).

The applicant, in applying for permanent residence, was seeking a benefit which required he comply with the provisions and obligations of the Act. He failed to comply with those obligations, misrepresenting a fact material to receiving this benefit, which was, in a sense, conditionally granted and was revoked for misrepresentation. It is a well-established principle that non-citizens do not have an unqualified right to enter and remain in this country. The bases upon which a landed immigrant may be removed from Canada, on the ground that he or she has improperly obtained landing, have been provided by Parliament in section 27 of the Act. Among these grounds, Parliament has included paragraph 27(1)(e) which provides for the removal of a person who has been “granted landing … by reason of any fraudulent or improper means or misrepresentation of any material fact, whether exercised or made by himself or any other person”. This is the regime adopted by Parliament, and in my opinion, to apply this regime in the present circumstances, does not violate the principles of fundamental justice. As stated by Sopinka J. in Chiarelli v. Canada (Minister of Employment and Immigration):[14]

Thus Parliament has the right to adopt an immigration policy and to enact legislation proscribing the conditions under which non-citizens will be permitted to enter and remain in Canada. It has done so in the Immigration Act. … The qualified nature of the rights of citizens to enter and remain in Canada is made clear by s. 4 of the Act. Section 4(2) provides that permanent residents have a right to remain in Canada except where they fall within one of the classes in s. 27(1).

It is not a principle of fundamental justice that an individual who seeks the benefit of a statutory regime, yet fails for whatever reason to make themselves aware of, or to satisfy, the requirements imposed by that regime, is entitled to special protection or concessions from its enforcement. In my view, in the circumstances of this case, paragraph 27(1)(e), as interpreted by the Appeal Division does not violate section 7 of the Charter.

(b)       Section 15

Counsel for the applicant also maintains that paragraph 27(1)(e), as interpreted by the Appeal Division, constitutes a violation of subsection 15(1) of the Charter in that it discriminates against the illiterate and uneducated. He states that this interpretation discriminates against the applicant on the basis of his ignorance as well as his inability to speak English or French, factors which counsel for the applicant argues constitute a “disability” within the prohibited grounds of discrimination under section 15 of the Charter. By failing to provide an interpreter upon his arrival in Canada, counsel for the applicant suggests that immigration officers treated the applicant in a discriminatory manner by treating him in a differential or unequal manner on the basis of his “disability”.

In my opinion, this argument, alleging a violation of the applicant’s right under section 15 of the Charter must fail. Ignorance of the law, and the inability to converse in either of Canada’s official languages, does not, in my opinion, constitute a “disability”, nor does it fall within any of the other enumerated grounds of discrimination under section 15 of the Charter.

Nor, does it constitute an “analogous” ground of discrimination under section 15 of the Charter. The applicant, is an individual who does not speak English or French, and who has received little formal education in his native Bangladesh. These personal capacities, particular to the applicant, are not, in my view, “immutable personal characteristics”, nor is the applicant a member of a particular group suffering “historical disadvantage”, or one which is a “discrete and insular minority” deserving of the protection of section 15.[15] As noted by McIntyre J. in Andrews v. Law Society of British Columbia[16] differential treatment of an individual based solely on his or her own particular personal capacities, divorced from an historically disadvantaged group, will rarely be characterized as discrimination:

Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual’s merits and capacities will rarely be so classed.[17]

In my view, to interpret the visa and landing provisions of the Act in the manner advocated by counsel for the applicant would place upon immigration officials and the federal government a legal duty to provide each and every applicant, who is unaware of the requirements of the Act and unable to speak English or French, with an interpreter and legal assistance in their native language upon arrival. While it is unfortunate that the applicant was unable upon arrival to communicate except in his own language, the provision of services by federal government employees in Canada’s two official languages is not discriminatory. In my opinion, the circumstances of this case do not establish discrimination prohibited by section 15 of the Charter.

(c)        Section 12

The applicant further argues that in the circumstances, to remove the applicant to Bangladesh on the basis of an innocent and honest error would constitute cruel and unusual treatment in contravention of section 12 of the Charter.

Although it has been held by the Federal Court of Appeal that deportation is not cruel and unusual punishment per se,[18] subsequent cases have left open the issue whether, in the circumstances of an individual case, deportation may constitute cruel and unusual treatment for the purposes of section 12 of the Charter. In support of his argument that removal is indeed a “treatment” for the purposes of section 12 of the Charter, counsel for the applicant relies upon two cases: Chiarelli, supra, and Barrera v. Canada (Minister of Employment and Immigration).[19]

The authoritative pronouncement as to what constitutes cruel and unusual punishment under section 12 of the Charter was set out by Lamer J. (as he then was) in R. v. Smith (Edward Dewey),[20] as follows:

The criterion which must be applied in order to determine whether a punishment is cruel and unusual within the meaning of s. 12 of the Charter is, to use the words of Laskin, C.J. in Miller and Cockriell, supra, at p. 688 “whether the punishment prescribed is so excessive as to outrage standards of decency”. In other words, though the state may impose punishment, the effect of that punishment must not be grossly disproportionate to what would have been appropriate.

This test of “gross disproportionality” was subsequently interpreted by Mr. Justice Gonthier for the majority of the Supreme Court of Canada in R. v. Goltz[21] as involving the balancing of “the gravity of the offence in itself with the particular circumstances of the offence and the personal characteristics of the offender.”

In my opinion, to deport the applicant in the present circumstances, would not constitute cruel and unusual treatment for the purposes of section 12 of the Charter. In my opinion, key to the determination as to whether deportation violates section 12 are the particular circumstances of the individual. In this case, I find nothing so “grossly disproportionate” as to outrage decency in the particular circumstances of the applicant.

The cases relied upon by counsel for the applicant although helpful, are not analogous to the circumstances of the case before me. In Chiarelli, Sopinka J., finding that deportation of a permanent resident under subparagraph 27(1)(d)(ii) of the Act was not cruel and unusual, chose to leave open the issue as to whether deportation came within the scope of “treatment” for the purposes of section 12 of the Charter. The Barrera case, which also left the issue open, dealt with the deportation of a refugee convicted of very serious criminal offences. In that case, however, the applicant, as a refugee, had already been recognized as having a “well-founded fear of persecution” within the meaning of subsection 2(1) of the Act. As a consequence of this status, the Court noted [at pages 19-20], “there is a serious possibility that such a person, if returned, will be subject to unjust imprisonment, and possibly even to torture and death”. In these circumstances, given the effect of deportation on the individual applicant in the particular circumstances of the case, in the Barrera case, it was found section 12 of the Charter was engaged.

In my opinion, there is no violation of the applicant’s section 12 right in the case at bar. The applicant in this case is not a Convention refugee. There has been no recognition of, and no evidence, of support for the contention that to deport him to Bangladesh would expose the applicant to a danger of persecution, torture or death. While the removal of the applicant will, no doubt, be difficult and upsetting for him, in terms of the separation from his family and the uncertainty he will face, to remove an individual from Canada on the basis that the information upon which they were granted landing in the first place was not truthful is not, in my view, “grossly disproportionate”, nor would it be excessive so as to violate public standards of decency.

3.         Humanitarian and Compassionate Grounds

The third and final ground upon which the applicant seeks judicial review is that the Appeal Division, in refusing or failing to exercise its equitable jurisdiction, made an erroneous finding of fact in a perverse or capricious manner or without regard for the material before it. Counsel for the applicant submits that there was ample evidence before the Appeal Division compelling the exercise of its equitable jurisdiction, and that its failure to do so constitutes a reviewable error. On this last point, counsel relies on Okwe v. Canada (Minister of Employment and Immigration)[22] in which the Federal Court of Appeal set aside the decision of the Immigration and Refugee Board (IRB) not to exercise its equitable jurisdiction on the grounds that it had erred in improperly drawing adverse inferences from a flawed assessment of the evidence before it, and in relying upon these adverse inferences as the basis of its decision.

In my opinion, unlike Okwe, supra, in the present case there is no evidence to suggest that the Appeal Division overlooked or disregarded evidence germane to its determination as to whether or not to exercise its equitable jurisdiction. Nor, in my view, did the Appeal Division rely on incomplete evidence to make its determination as to whether or not to exercise this jurisdiction.

The broad discretion granted to the Appeal Division with respect to its equitable jurisdiction is provided in paragraph 70(1)(b) of the Act which empowers the Appeal Division to determine, “having regard to all the circumstances of the case” whether or not a permanent resident should be removed from Canada. Where this discretion has been exercised in a bona fide manner, not influenced by irrelevant considerations and is not arbitrarily or illegally exercised, the Court is not entitled to interfere, even if the Court might have exercised that discretion differently had it been in the position of the Appeal Division.

During the hearing before that Division on September 14, 1995, counsel for the applicant made submissions concerning humanitarian and compassionate grounds which, he submitted, warranted the exercise of equitable jurisdiction by the Appeal Division. However, on the basis of the evidence before it, the tribunal opted not to exercise its equitable jurisdiction with respect to the applicant’s pending removal. This conclusion was reasonably open to the Appeal Division on the evidence before it. As stated by Laskin J. (as he then was) in Boulis v. Minister of Manpower and Immigration[23] the decision of such a panel as to whether or not to exercise its equitable jurisdiction is “not to be read microscopically; it is enough if they show a grasp of the issues that are raised … and of the evidence addressed to them, without detailed reference.”

On this basis I reject the third argument of the applicant that the Appeal Division, in not exercising its equitable jurisdiction, committed a reviewable error of fact warranting intervention by the Court.

For the reasons set out above, the application for judicial review is dismissed. I note that no question is here certified for the Court of Appeal.

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