Tran v. Canada ( Minister of Citizenship and Immigration )
IMM-3111-95
W.P. McKeown
18/12/96
10 pp.
Application for judicial review of Immigration and Refugee Board Appeal Division decision dismissing applicants' appeal under Act, s. 70 for lack of jurisdiction-Issue whether Appeal Division erred in finding without jurisdiction to hear applicants' appeal under s. 70 on ground applicant not permanent resident of Canada and, therefore, had no right of appeal, since landing had been granted pursuant to immigrant visa void ab initio-Applicant had omitted to disclose marriage at interview by visa officer-Applicant herself revealed marriage seven months after being granted landed immigrant status when commenced application to sponsor husband-Report issued under Act, s. 27-Deportation order issued on basis applicant person described in Act, s. 27(1)(e)-Appeal Division declined jurisdiction to hear appeal on ground visa void ab initio-Application allowed-Immigration Act, ss. 27(1)(e), 70(1) applicable, not ss. 27(2), 70(2)(b)-Under Immigration Act as applicable herein, Parliament has provided complete statutory scheme to address issues involving admissions of persons in Canada or removal of persons from Canada, and specific appeal rights in certain cases-Rights of permanent residents appealing deportation order broader than certain other appeal rights, because of length of stay, substantial ties to Canada-In case of permanent resident ordered deported, equitable jurisdiction of Appeal Division directing tribunal to have regard to "all the circumstances of the case"-Following factors included: long delay; fact she was sponsored as "assisted relative" although apparently landed in category of "family class"; fact she and husband de facto dependants of her family and she has been supporting husband since her arrival in Canada; fact never personally interviewed by officials who dealt with her case; fact she and family victims of harassment and persecution by North Vietnamese victors in Vietnam war and one sister died at sea while trying to escape from Vietnam; fact she herself declared marriage; fact 2 years passed between declaration married and removal procedures against her; fact parents and siblings now Canadian citizens and herself successfully established in Canada in 4½ years since arrival-Present case limited to special facts herein and legislation as existed at relevant time-Accordingly, applicant should have been dealt with as permanent resident under Act, ss. 27(1)(e) and 70(1)-Appeal Division therefore had jurisdiction to hear appeal and matter returned to it for determination on merits-Immigration Act, R.S.C., 1985, c. I-2, ss. 27(1)(e),(2) (as am. by S.C. 1992, c. 49, s. 16), 70 (as am. by S.C. 1995, c. 15, s. 13).