[1995] 3 F.C. 32
IMM-4087-94
Minister of Citizenship and Immigration (Applicant)
v.
Rajbir Singh Hundal (Respondent)
Indexed as: Canada (Minister of Citizenship and Immigration) v. Hundal (T.D.)
Trial Division, Rothstein J.—Calgary, June 2; Vancouver, June 8, 1995.
Citizenship and Immigration — Exclusion and removal — Jurisdiction of Immigration and Refugee Board Appeal Division under Act, s. 70(2)(b) where condition upon which immigrant visa issued no longer met — Whether visa’s validity ceasing immediately upon visa condition no longer being met, thereby depriving Appeal Division of jurisdiction.
In April 1991, the respondent was issued an immigrant visa sponsored by his wife, a permanent resident. In December 1991, the wife withdrew her sponsorship. The respondent arrived in Canada in January 1992, was the subject of an immigration officer’s report under paragraph 20(1)(a) of the Immigration Act in January 1992 and was issued an exclusion order in February 1992, presumably because of the withdrawal of sponsorship. The respondent appealed the exclusion order to the Appeal Division of the Immigration and Refugee Board pursuant to paragraph 70(2)(b) of the Immigration Act. The Appeal Division decided that it had jurisdiction and that the exclusion order was valid in law but it allowed the respondent’s appeal on humanitarian and compassionate grounds.
This was an application for judicial review from that decision on the basis that the Appeal Division lacked jurisdiction to hear the matter under paragraph 70(2)(b) of the Act. The Minister argued that once a condition upon which a visa was issued was not longer met, the visa ipso facto was no longer valid. And since the jurisdiction of the Appeal Division was dependent on the person who seeks landing being in possession of a valid visa, the Appeal Division did not have jurisdiction where the visa had become invalid by reason of the condition no longer being met. The question was whether the visa was valid when the immigration officer made his report in January 1992.
Held, the application should be dismissed.
In Canada (Minister of Employment and Immigration) v. De Decaro, [1993] 2 F.C. 408(C.A.), visas were issued to an individual and two dependants who were to accompany the individual, and the individual died before coming to Canada. It was held therein that the visa ceased to be valid at the moment there could no longer be compliance with the condition upon which the visa was issued. That case could be distinguished as one in which the performance of the condition had become impossible. A broad interpretation of De Decaro would render paragraph 70(2)(b) meaningless and deprive the Appeal Division of any jurisdiction.
A consideration of the scheme of the Act respecting visas and landing demonstrated that no mischief flowed from a narrower interpretation of De Decaro and was consistent with the scheme. The immigration process involves two stages: first, the examination by a visa officer and a decision by that officer as to whether a visa should be issued and, second, an examination by an immigration officer at the port of entry and a decision by that officer to grant landing. Since a visa only allows an individual to present himself for landing at the port of entry where there is a second examination to determine whether the individual meets the conditions for being granted landing. It is unnecessary to read into the legislation that the failure to meet a condition of the visa results in its automatic invalidation.
The general principle is that once a visa is issued it remains valid. But there are four exceptions: (1) The De Decaro exception: a visa becomes ipso facto invalid where there is a frustration or impossibility of performance of a condition on which the visa was issued. (2) The Wong exception: a visa is invalid where there is a failure to meet a condition of the granting of the visa itself before the visa is issued. The visa is then void ab initio. (3) A visa ceases to be valid when it reaches its expiry date. (4) A visa is no longer valid if revoked or cancelled by a visa officer.
In the instant case, none of the exceptions apply. The sponsor could have changed her mind and reinstated her sponsorship. The Appeal Division therefore had jurisdiction to consider and decide the appeal.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Immigration Act, R.S.C., 1985, c. I-2, ss. 9(1) (as am. by S.C. 1992, c. 49, s. 4), (2) (as am. idem), (4) (as am. idem), 14(2) (as. am. idem, s. 8), 19(2)(d), 20(1)(a), 69.4(2) (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 18), 70(2)(b) (as am. idem), 70(3)(b) (as am. idem), 73(3) (as am. idem).
Immigration Regulations, 1978, SOR/78-172, s. 12 (as am. by SOR/83-540, s. 2; 93-44, s. 11).
CASES JUDICIALLY CONSIDERED
DISTINGUISHED:
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.).
CONSIDERED:
Minister of Employment and Immigration v. Gudino, [1982] 2 F.C. 40 (1981), 124 D.L.R. (3d) 748; 38 N.R. 361 (C.A.); Minister of Employment and Immigration v. Wong (1993), 153 N.R. 237 (F.C.A.).
APPLICATION for judicial review of a decision of the Appeal Division of the Immigration and Refugee Board for want of jurisdiction. Application denied.
COUNSEL:
Brad Hardstaff for applicant.
Peter Wond for respondent.
SOLICITORS:
Deputy Attorney General of Canada for applicant.
Major Caron, Calgary, for respondent.
The following are the reasons for order rendered in English by
Rothstein J.: The issue in this judicial review pertains to the jurisdiction of the Appeal Division of the Immigration and Refugee Board under paragraph 70(2)(b) of the Immigration Act, R.S.C., 1985, c. I-2 [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18]. Paragraph 70(2)(b) provides:
70. …
(2) Subject to subsections (3) and (4), an appeal lies to the Appeal Division from a removal order or conditional removal order made against a person who
…
(b) seeks landing or entry and, at the time that a report with respect to the person was made by an immigration officer pursuant to paragraph 20(1)(a), was in possession of a valid immigrant visa, in the case of a person seeking landing, or a valid visitor’s visa, in the case of a person seeking entry. [Underlining added.]
The Minister says that once a condition upon which a visa was issued is no longer met, the visa ipso facto is no longer valid. Since the jurisdiction of the Appeal Division is dependent on the person who seeks landing being in possession of a valid immigration visa, the Appeal Division does not have jurisdiction where the visa has become invalid by reason of the condition no longer being met.
In this case, the respondent was married to a permanent resident of Canada on January 9, 1989. On August 30, 1989, the permanent resident signed an undertaking of assistance wherein she undertook to sponsor the respondent’s immigration to Canada. The respondent submitted an application for permanent residence in Canada in November of 1989 and on April 29, 1991, he was issued an immigrant visa by the Canadian High Commission in New Delhi, India. On December 16, 1991, the respondent’s spouse signed a statutory declaration withdrawing her sponsorship of the respondent.
At this point, the record becomes somewhat ambiguous. It seems that on December 30, 1991, the High Commission in New Delhi sent a telegram to the respondent “to return visas”. However, this telegram was not part of the record. There is no suggestion that the visa was cancelled. The evidence is that it was not. In a communication from the High Commission in New Delhi to the Canada Immigration Centre in Calgary dated January 13, 1992, the High Commission states in part:
We could only have advised that we were cancelling IMM 1000 [the visa] only if CIC had advised us sponsor had withdrawn IMM 1344 in which case subject would have been ineligible. We have not/not yet been so advised.
In the meantime, on January 2, 1992, the respondent left India and arrived in Canada on January 3, 1992. Upon his arrival in Canada he was examined by an immigration officer who made a report under paragraph 20(1)(a) of the Immigration Act which allowed him to decide that it would or may be contrary to the Act or to the regulations to grant admission to the respondent. The respondent was issued an exclusion order on February 27, 1992, on the ground that he was a member of an inadmissible class described in paragraph 19(2)(d) of the Immigration Act, namely, that he was seeking admission as an immigrant and did not comply with the regulations, presumably because of the withdrawal of sponsorship.
The respondent appealed his exclusion order to the Appeal Division pursuant to paragraph 70(2)(b) of the Immigration Act. The Appeal Division heard his appeal on February 17, 1994. On August 16, 1994, the Appeal Division decided that it had jurisdiction to consider the respondent’s appeal and that the exclusion order was valid in law. However, it allowed the respondent’s appeal on humanitarian and compassionate grounds under paragraph 70(3)(b) [as am. idem] which provides:
70. …
(3) An appeal to the Appeal Division under subsection (2) may be based on either or both of the following grounds:
…
(b) on the ground that, having regard to the existence of compassionate or humanitarian considerations, the person should not be removed from Canada.
The question is whether the visa was valid when the report of January 3, 1992, was made by the immigration officer. If it was, the Appeal Division had jurisdiction to make the decision it did. If not, the Appeal Division did not have such jurisdiction.
The Minister argues that this case must be governed by the majority decision in Canada (Minister of Employment and Immigration) v. De Decaro, [1993] 2 F.C. 408(C.A.). In that case, immigrant visas were issued to an individual and two dependants who were to accompany the individual. The individual died before coming to Canada. Pratte J.A., for the majority, held that the dependants’ visas were conditional and without the person on whom the dependants relied accompanying or preceding them to Canada, the condition of the dependants’ visas were not fulfilled. At page 417 Pratte J.A. states:
Was the respondent, when she was the subject of the report under paragraph 20(1)(a), in possession of a “valid” visa? [This question must be asked as, if she was, we should refer the matter back to the Division for it to rule on the respondent’s appeal under subsection 73(3) [as am. idem].] The word “valid” implies that a visa which is initially valid may subsequently cease to be so. Before her husband’s death, the respondent certainly held a valid visa even though, as I said, the visa was a conditional one; however, after that death it was impossible for the condition attached to the visa to be performed, so that the visa then ceased to have any validity. It was no longer, in my opinion, a “valid” visa. [Footnote numbering omitted.]
It seems that Pratte J.A. was of the view that at the moment there could no longer be compliance with the condition upon which the visa was issued, the visa ceased to be valid.
Upon this view of the law the Minister says that, in the case at bar, once the respondent’s wife withdrew her sponsorship of the respondent, the condition of his visa was no longer met and the visa ceased to be valid. As a result, he argues that, as there was no valid immigrant visa in the possession of the respondent when the report of the immigration officer was made on January 3, 1992, the Appeal Division did not have jurisdiction to decide an appeal from the removal order issued against the respondent.
Counsel for the respondent makes the point that if De Decaro is applied broadly to all situations in which a condition upon which a visa is issued is no longer met by reason of an event arising after issuance of the visa, paragraph 70(2)(b), contrary to its words, confers no appeal jurisdiction on the Appeal Division. He says that if failure to meet a condition always results in the visa becoming invalid at the moment the condition is no longer met, no person against whom a removal order is issued could ever appeal to the Appeal Division because the visa in question would be invalid and the Appeal Division would not have jurisdiction to consider the appeal. Thus, for example, if a person seeking landing had obtained a visa but had subsequently become ill, received a criminal conviction, or lost units of assessment under Schedule I to the Immigration Regulations, 1978 [SOR/78-172] due to the loss of an employment opportunity and thereby no longer qualified for immigration, at the moment of the illness, criminal conviction or loss of job opportunity, the individual’s visa would ipso facto become invalid. A removal order made by an immigration officer on any such ground could, therefore, not be appealed to the Appeal Division.
I asked counsel for the Minister to demonstrate to me a flaw, if any, in respondent’s counsel’s argument but he was unable to do so. If respondent’s counsel’s analysis is correct, and I have not been shown why it is not, a broad interpretation of De Decaro would indeed render paragraph 70(2)(b) meaningless. It seems obvious that De Decaro cannot be interpreted to have such broad scope.
I think a consideration of the scheme of the Act respecting visas and landing demonstrates that no mischief flows from a narrower interpretation of De Decaro and is consistent with the scheme. Under subsection 9(1) [as am. by S.C. 1992, c. 49, s. 4] of the Act, every immigrant shall make an application for and obtain a visa before appearing at a port of entry.
9. (1) Except in such cases as are prescribed, and subject to subsection (1.1), every immigrant and visitor shall make an application for and obtain a visa before that person appears at a port of entry.
Under subsection 9(2) [as am. idem] an applicant for an immigrant’s visa must be assessed by a visa officer to determine whether the applicant may be granted landing.
9. …
(2) An application for an immigrant’s visa shall be assessed by a visa officer for the purpose of determining whether the person making the application and every dependant of that person appear to be persons who may be granted landing.
Under subsection 9(4) [as am. idem], where a visa officer is satisfied it would not be contrary to the Act or regulations to grant landing to the applicant, he may issue a visa to the applicant to identify the applicant as a person who meets the requirements of the Act and regulations.
9. …
(4) Subject to subsection (5), where a visa officer is satisfied that it would not be contrary to this Act or the regulations to grant landing or entry, as the case may be, to a person who has made an application pursuant to subsection (1) and to the person’s dependants, the visa officer may issue a visa to that person and to each of that person’s accompanying dependants for the purpose of identifying the holder thereof as an immigrant or a visitor, as the case may be, who, in the opinion of the visa officer, meets the requirements of this Act and the regulations.
The individual then presents himself to an immigration officer at a port of entry. In order for the immigration officer at the port of entry to determine if the individual still meets the requirements of the Act and regulations upon his arrival at the port of entry, the Immigration Regulations, 1978 provide that the individual must disclose all material changed facts since the issuance of his visa. Section 12 [as am. by SOR/83-540, s. 2; 93-44, s. 11] of the Regulations provides:
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 issue thereof,
to establish that at the time of the examination
(c) the immigrant and the immigrant’s dependants, whether accompanying dependants or not, where a visa was issued to the immigrant pursuant to subsection 6(1), section 9 or subsection 10(1) or (1.1) or 11(3) or (4), or
(d) the immigrant and the immigrant’s accompanying dependants, in any other case,
meet the requirements of the Act, these Regulations, the Indochinese Designated Class Regulations, the Self-Exiled Persons Class Regulations or the Political Prisoners and Oppressed Persons Designated Class Regulations, including the requirements for the issuance of the visa.
Under subsection 14(2) [as am. by S.C. 1992, c. 49, s. 8] of the Act, where an immigration officer is satisfied it would not be contrary to the Act and regulations to grant landing, he shall grant landing.
14. …
(2) Where an immigration officer is satisfied that it would not be contrary to this Act or the regulations to grant landing to an immigrant whom the officer has examined, the officer shall
(a) grant landing to that immigrant; or
(b) authorize that immigrant to come into Canada on condition that the immigrant be present for further examination by an immigration officer within such time and at such place as the immigration officer who examined the immigrant may direct.
It is, therefore, apparent that the immigration process involves two stages, the first being examination by a visa officer and a decision by that officer as to whether to issue a visa and, second, an examination by an immigration officer at the port of entry and a decision by that officer to grant landing. Since a visa only allows an individual to present himself for landing at a port of entry at which time there is a second examination to determine if he or she still meets the requirements of the Act and regulations for the purposes of landing, it is unnecessary to read into the legislation that the failure to meet a condition of the visa results in its automatic invalidation. As a general principle, therefore, once a visa has been issued, it remains valid. This approach to interpreting the legislation is necessary to give some meaning to paragraph 70(2)(b) and some jurisdiction to the Appeal Division thereunder.
It is, of course, still necessary to deal with dicta of the Federal Court of Appeal on the issue of visa validity which is binding on me. It appears there are four exceptions to the general principle that once a visa is issued it remains valid.
The first I term the De Decaro exception. This may be characterized as the situation in which there is a frustration or impossibility of performance of a condition on which the visa was issued. As in the case of contracts, and I acknowledge that it is always risky to draw analogies, such a “frustration” exception to the validity of a visa is narrow. It applies only when it is obvious that a supervening act makes the satisfaction of the condition of the visa impossible. As in De Decaro, where the person upon whose continued existence dependants’ visas have been granted dies, the condition of the dependants’ visas obviously fails. In such case the visa becomes ipso facto invalid upon such an event.
But it should be made clear that in the vast majority of cases, such as many of those involving medical conditions, loss of units of assessment, loss of sponsorship and the like, a change of circumstances is not irrevocable. Indeed, I think Pratte J.A. in De Decaro specifically did not suggest that any time a condition of a visa was not met, this automatically resulted in it becoming invalid (see page 413). As long as it cannot be said that the condition of a visa becomes impossible to meet upon the happening of a supervening event, the visa will remain valid. Of course, the person may still not be granted landing because of the change of circumstances, but this does not affect the validity of a visa. Refusal to grant landing will be as a result of the examination by the immigration officer at the port of entry.
The second exception is where there is a failure to meet a condition of the granting of the visa itself before the visa is issued. This is what occurred in Minister of Employment and Immigration v. Wong (1993), 153 N.R. 237 (F.C.A.) in which MacGuigan J.A. stated at page 238:
Our attention was drawn by the appellant to the recent majority decision of this court in Le ministère de l’Emploi et de l’Immigration c. Decaro (A-916-90), decided March 1, 1993. Whatever should be the result where an element upon which the issuance of a visa is based subsequently ceases to exist, we are at least satisfied that, where, as here, the principal reason for the issuance of a visa ceased to exist before its issuance, such a visa cannot be said to be “a valid immigrant visa”.
If essential components to the issuance of a visa are not present before the visa is issued, the visa that is issued will not be valid. It is void ab initio. This is the Wong exception.
The third exception to a visa remaining valid will be where it expires. Thus, if there is an expiry date on a visa and the time expires, the visa will clearly not be valid after the expiry date.
A fourth exception to a visa remaining valid will be where it is revoked by a visa officer. While the Immigration Act makes no express provisions for revocation of a visa, I think the authority to revoke arises by necessary implication. In Minister of Employment and Immigration v. Gudino, [1982] 2 F.C. 40(C.A.), it was argued that once a visa is issued the visa officer became functus and could not cancel or invalidate the visa. Heald J.A. stated at page 43:
In my view, it is a necessary implication from the use of the words “valid and subsisting” that a visa can be revoked or become invalid by reason of a change in circumstance.
While Heald J.A. was dealing with the phrase “valid and subsisting”, I think the same necessary implication flows from the word “valid” alone since “subsisting” is used in the Act to mean that the visa must not have expired. Thus, where a visa officer cancels a visa, it is no longer valid. According to Gudino, no specified manner of cancellation is prescribed by the Act (see page 45). However, such cancellation or invalidation of the visa requires some decision by the visa officer. As long as a decision to cancel has been made, the visa is no longer valid.
Subject to these four exceptions, once a visa is issued, it is and remains valid for purposes of paragraph 70(2)(b) of the Immigration Act.
Returning to the facts of the case at bar, none of these four exceptions apply. There was no failure to meet a condition before the visa was issued. There was no impossibility of meeting a condition. Even though the sponsorship had been withdrawn it was possible to reinstate it. There was no expiry of the visa and there was no cancellation of the visa. While perhaps the requirement to return a visa might, in some circumstances, be interpreted to constitute a cancellation of the visa, that cannot be said to be the case here. As the telegram from the High Commission in New Delhi to Canada Immigration Centre in Calgary states, the intention was only to investigate and only if the High Commission had been advised of the withdrawal of sponsorship, which it had not at the relevant time, would action have been taken to cancel the visa.
Under these circumstances, the respondent presented himself at the port of entry in Canada in possession of a valid immigrant visa. The immigration officer quite properly conducted an investigation and issued a report under paragraph 20(1)(a) of the Act and, ultimately, a removal order. However, also quite properly, the respondent appealed to the Appeal Division of the Immigration and Refugee Board and it was within the jurisdiction of the Appeal Division to consider and decide the appeal.
Counsel for the respondent argued that in view of the privative provision respecting the jurisdiction of the Appeal Division, as contained in subsection 69.4(2) [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 18] of the Immigration Act, this Court should exercise judicial deference in considering any jurisdictional appeal from a decision of the Appeal Division. Subsection 69.4(2) provides:
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.
In view of my decision to uphold the decision of the Appeal Division, it is not necessary for me to deal with the question of judicial deference and the meaning of subsection 69.4(2).
This application for judicial review must be dismissed. I thank counsel for their arguments and, in particular, counsel for the Minister who provided me with authorities that were not favourable to his position.