Judgments

[1993] 2 F.C. 337

T-1112-92

Sonny Dass (Applicant)

v.

Minister of Employment and Immigration (Respondent)

Indexed as: Dass v. Canada (Minister of Employment and Immigration) (T.D.)

Trial Division, Rothstein J.—Winnipeg, January 27; Ottawa, February 25, 1993.

Citizenship and Immigration — Status in Canada — Permanent residents — Not open to Immigration Department to refuse to continue processing permanent residence application where applicant convicted of criminal offences after issuance of order in council allowing application to be made from within Canada — Department may proceed under Immigration Act, s. 27(1)(d) for removal.

The applicant, a Trinidadian, arrived in Canada as a visitor in December 1988 and married a Canadian in March 1989. In April, in order to be allowed to apply for permanent residence from within Canada, he requested an exemption on compassionate and humanitarian grounds from the provisions of subsection 9(1) of the Immigration Act. In May 1989, a report was sent to the Governor in Council recommending that his application be granted, with the mention: “Appears to meet requirements. Landing is recommended.”

In November 1989, four criminal charges were laid against the applicant in relation to a domestic dispute involving violence. This came to the attention of the Immigration Department in March 1990. The order in council granting him his exemption was issued in April 1990. He was convicted on all four counts in March 1991. In January 1992, the applicant was advised that the Department was “unable to continue processing your application”.

This was an application pursuant to section 18.1 of the Federal Court Act for certiorari quashing that decision, and for mandamus ordering the Minister to issue the necessary documents showing that the applicant has permanent residence in Canada.

Held, the application for certiorari should be granted. The application for mandamus should issue requiring the respondent to process the application for landing and permanent residence while the applicant remains in Canada.

The case turns on the fact that the convictions were subsequent to the order in council. The words “Appear to meet requirements. Landing is recommended” did not mean that the Department was leaving open the question of an applicant meeting the requirements of the Act in order to take account of subsequent events. There was no evidence that the information upon which the recommendation for the order in council was based was inaccurate. Once officials in the Department indicate that an applicant has met the requirements of the Immigration Act and an order in council is issued, a person acquires the right to be landed and a right to permanent residency status irrespective of subsequent events such as the withdrawal of sponsorship by a wife even though such sponsorship was a condition of the application leading to the order in council. This was not a matter of inaccuracies of past facts or assumptions about a state of circumstances that existed at the time when, and upon which, the Department made its request and recommendation for an order in council.

It may be that in other circumstances, the Department, in its request for an order in council, could leave open for subsequent determination whether or not an applicant meets the requirements of the Immigration Act. It would then be up to the Governor in Council to decide whether to grant it or not.

The decision herein was not to be taken as condoning the criminal offences which the applicant had committed. When a permanent resident is convicted of a serious criminal offence, it is open to the Department to commence proceedings under paragraph 27(1)(d) of the Immigration Act which would lead to his removal.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Criminal Code, R.S.C., 1985, c. C-46, ss. 264.1(1)(a) (as enacted by R.S.C., 1985 (1st Supp.), c. 27, s. 38), 267(1).

Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1 (as enacted by S.C. 1990, c. 8, s. 5).

Immigration Act, R.S.C., 1985, c. I-2, ss. 9(1), 27 (as am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 4), 83(1) (as am. by S.C. 1992, c. 49, s. 73).

Immigration Visa Exemption Regulations No. 7, 1990, SOR/90-252.

CASES JUDICIALLY CONSIDERED

APPLIED:

Sivacilar v. Minister of Employment and Immigration (1984), 57 N.R. 57 (F.C.A.); Dawson v. Minister of Employment and Immigration (1988), 21 F.T.R. 212; 6 Imm. L.R. (2d) 37 (F.C.T.D.).

DISTINGUISHED:

Ferrerya v. Minister of Employment and Immigration (1992), 56 F.T.R. 270 (F.C.T.D.); John v. Minister of Employment and Immigration, T-2463-89, judgment dated 10/4/90, Addy J., F.C.T.D., not reported.

APPLICATION, under section 18.1 of the Federal Court Act, for certiorari and mandamus (1) quashing the decision of an Immigration official, on the basis of criminal convictions subsequent to the issuance of an order in council allowing the applicant’s application for permanent residence to be made from within Canada, not to continue processing the application and (2) ordering the issuance of the necessary documents. Application allowed.

COUNSEL:

David Matas for applicant.

Brian H. Hay for respondent.

SOLICITORS:

David Matas, Winnipeg, for applicant.

Deputy Attorney General of Canada for respondent.

The following are the reasons for order rendered in English by

Rothstein J.: This is an application made pursuant to section 18.1 of the Federal Court Act [R.S.C., 1985, c. F-7 (as enacted by S.C. 1990, c. 8, s. 5)] for:

1.         Certiorari quashing the decision as signed by Immigration Counsellor I. Pawlosky, Canada Immigration Centre, Winnipeg, in a letter dated January 2, 1992 not to continue processing the application for landing of the applicant, Sonny Dass.

2.         Mandamus ordering the respondent, the Minister of Employment and Immigration, to issue the necessary documents showing that the applicant has permanent residence in Canada.

CHRONOLOGY OF EVENTS

December 6, 1988

Mr. Dass, a national of Trinidad, arrived in Canada as a visitor.

March 31, 1989

Mr. Dass married Violet Rosaline Wiesner in Winnipeg.

April 9, 1989

Mr. Dass requested an exemption on compassionate and humanitarian grounds from the provisions of subsection 9(1) of the Immigration Act, R.S.C., 1985, c. I-2. The exemption would entitle him to apply for permanent residence while within Canada. The normal procedure is that such application must be made before a person enters Canada.

May 18, 1989

Sandra Luhowy of the Canada Immigration Centre in Winnipeg wrote Mr. Dass advising him that the Winnipeg Immigration Office had formed the opinion that there were humanitarian and compassionate grounds to request that the Governor in Council allow him to become a permanent resident while he remained in Canada.

May 25, 1989

Ms. Luhowy submitted a report to the Governor in Council indicating that Mr. Dass was requesting that he “be processed under espousal program.” The request form also included the following notation: “Appears to meet requirements. Landing is recommended.”

July 20, 1989

Ms. Luhowy telexed Trinidad and Tobago as follows:

“Subject has been accepted for permanent residence in Canada under espousal program. Would appreciate if you would medically examine 2 single children in Trinidad and provide results … ”

November 11, 1989

Apparently as a result of a domestic dispute on this date, Mr. Dass is charged with:

a)         Count 1—assault with a weapon under subsection 267(1) of the Criminal Code [R.S.C., 1985, c. C-46].

b)         Count 2—possession of a weapon dangerous to the public peace under section 87 of the Criminal Code.

c)         Counts 3 & 4—two counts of uttering threats to kill under paragraph 264.1(1)(a ) [as enacted by R.S.C., 1985 (1st. Supp.), c. 27, s. 38] of the Criminal Code.

March 6, 1990

The criminal charges came to the attention of Ms. Luhowy. In the information that came to her attention there is a suggestion (apparently incorrect) that the charges under the first two counts were stayed. Upon checking as to whether the marriage was intact, Violet Dass said that the couple were together and she wished to continue sponsoring Mr. Dass.

April 26, 1990

Order in council P.C. 1990-748 [Immigration Visa Exemption Regulations No. 7, 1990, SOR/90-252] is issued exempting Mr. Dass (and others) from the application of subsection 9(1) of the Immigration Act.

March 20, 1991

Mr. Dass is convicted on all four counts under the Criminal Code.

September 10, 1991

A report pursuant to section 27 [as am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 4] of the Immigration Act is prepared by I. K. Pawlosky, an immigration counsellor and sent to the Deputy Minister of Employment and Immigration.

September 24, 1991

Immigration Counsellor Pawlosky writes to Director, Immigration Manitoba Region, requesting permission to issue a Minister’s permit to Mr. Dass to allow him to remain in Canada until he is able to apply for rehabilitation.

December 17, 1991

Director, Case Research and Case Processing, Department of Employment and Immigration, writes to Director, Immigration Manitoba Region, disagreeing that a Minister’s permit should be issued.

December 30, 1991

Deputy Minister of Employment and Immigration directs that an inquiry be held pursuant to subsection 27(3) of the Immigration Act.

January 2, 1992

Immigration Counsellor Pawlosky writes Mr. Dass advising that a Minister’s permit has not been approved, that “we are unable to continue processing your application”, that a direction for an inquiry has been signed and that Mr. Dass would be informed of the date and time he must appear for the inquiry.

ANALYSIS

Counsel for the applicant argues that the plaintiff is entitled to a landing document. He says that order in council P.C. 1990-748 was issued by the Governor in Council after the Minister was aware of the criminal charges against Mr. Dass and therefore a landing document should be issued. He argues that the Minister may not undertake proceedings to revoke Mr. Dass’s landing on the grounds of his subsequent conviction on these charges because the order in council was issued in full knowledge of the charges. Alternatively, counsel for the applicant argues that even if the Minister is intent on removing Mr. Dass from Canada, Mr. Dass is entitled to the procedure afforded permanent residents.

Counsel for the respondent argues that the issuance of the order in council does not confer landing status or permanent resident status on Mr. Dass. The basis for this position is that the official in the Department of Employment and Immigration who made the request to the Governor in Council only wrote on the request form: “Appears to meet requirements” (emphasis mine) and that it remained open to the Department, notwithstanding the issuance of the order in council, to refuse to continue processing Mr. Dass’ permanent residence application.

Counsel for the applicant relies on Sivacilar v. Minister of Employment and Immigration (1984), 57 N.R. 57 (F.C.A.). At page 59 Hugessen J.A. states:

The document submitted to the Governor in Council requesting special authority contains, as I have indicated, in two separate places a formal assertion, endorsed by a senior immigration officer, that all the requirements of the Act have been met. The document is a request for authority to admit the applicant notwithstanding subsection 9(1). Upon the adoption of the order in council P.C. 1983-2469, the applicant became a person with the right to come into or remain in Canada. He had acquired the right to be landed and nothing remained to be done in the granting of landing to him. His wife’s subsequent purported withdrawal of the sponsorship was accordingly without effect.

For this reason, therefore, I will allow the application and set aside the departure notice issued to the applicant.

In Dawson v. Minister of Employment and Immigration (1988), 21 F.T.R. 212 (F.C.T.D.), Teitelbaum J., after referring to the above passage from Sivacilar, and after confirming that in that case the immigration officials had represented that “all other requirements had been met” states at page 224:

I therefore find that the applicant, Alphonsus Liguori Dawson, had acquired the right to be granted permanent residency in Canada as a landed immigrant when the Governor in Council’s decree was published. I find that the wife’s purported withdrawal of sponsorship is of no effect. I order the respondent, the Minister of Employment and Immigration, to process the application filed by the applicant and to grant to him permanent residency in Canada.

The respondent is hereby prohibited from ordering the applicant’s removal from Canada which was ordered for August 21, 1988.

These cases seem to stand for the proposition that once officials in the Department of Employment and Immigration indicate that an applicant has met the requirements of the Immigration Act and an order in council is issued, such as order in council P.C. 1990-748 in this case, a person acquires a right to be landed and a right to permanent residency status irrespective of subsequent events e.g., withdrawal of sponsorship by a wife even though such sponsorship was a condition of the application leading to the order in council.

Counsel for the respondent relies upon two decisions of this Court. In John v. Minister of Employment and Immigration, Court file T-2463-89 dated April 10, 1990, not reported, Addy J. states:

The request for special authority to be exempted from the requirement of a visa and for permission to remain in Canada from the 23rd of July 1987 until the 22nd of July 1988 and which was granted by the Governor General in Council, did not, as in many other similar cases, contain a statement from the Immigration Authorities that these requirements of the Act and of the Regulations had been complied with. On the contrary the statement was to the effect that it appeared that the applicant might meet those requirements.

On applying for permanent residence on April 20, 1987 the applicant made a false declaration by stating that he had never been convicted of a criminal offence and, more importantly, that he had never been ordered to leave Canada, when in fact, in addition to having been convicted of possession of marihuana, he had previously been arrested and forcibly deported to Trinidad in October, 1980 pursuant to a deportation order which had been issued against him. No consent to return to Canada had ever been given pursuant to section 55(1) (formerly 57(1)).

It would be improper for the Court to prevent the Immigration authorities from carrying out their statutory authority to hold an inquiry.

The motion is dismissed with costs.

In Ferrerya v. Minister of Employment and Immigration (1992), 56 F.T.R. 270 (F.C.T.D.) a decision of Reed J. on September 8, 1992, an order in council exempting the applicant from the requirements of subsection 9(1) of the Immigration Act was issued based on sponsorship by his wife. It was subsequently determined by the Minister’s officials that the applicant had entered into the marriage “primarily for the purpose of gaining permanent residence in Canada as a member of the family class and not with the intention of residing permanently with your spouse” and that the applicant was therefore “not eligible for sponsorship” (see pages 271-272). At page 273, the learned Judge states:

As I understand it, the Department of Immigration, after the decisions in Sivacilar and Dawson, changed its practice. Instead of determining an application on its merits in anticipation of a s. 9(1) waiver being given, the practice was adopted of indicating only that the applicant might fulfil the requirements of the Act.

There was no final determination of this applicant’s application made on the merits, prior to the s. 9(1) waiver being given. Therefore, I cannot conclude that that waiver, according to the applicant, any right to permanent residence status.

John and Ferrerya, supra, seem to stand for the proposition that, where the Department of Employment and Immigration, when submitting a recommendation and request for an order in council, has not made a conclusive determination that an applicant has met the requirements of the Immigration Act for landing or permanent residency and later determines that the recommendation was based upon misrepresentations by the applicant, or that facts relied upon by the Department were not accurate, the issuance of an order in council does not confer the right to be landed or to be a permanent resident.

In the case at bar the Department’s recommendation for an order in council exempting Mr. Dass from the requirements of subsection 9(1) states: “Appears to meet requirements. Landing is recommended.” The order in council was subsequently issued, presumably based on the request and recommendation of the Department which included these comments.

I have no difficulty accepting that the words “Appears to meet requirements” leaves it open to the Department to verify the accuracy of information provided by an applicant, or to determine the bona fides of a marriage before confirming conclusively that all requirements had been met. In John, supra, it was found that an applicant had misrepresented information about his former criminal convictions and deportation. In Ferrerya, supra, upon investigation, it was found that a marriage was not bona fides. These are matters of inaccuracies of past facts or assumptions about a state of circumstances that existed at the time when, and upon which, the Department made its request and recommendation for an order in council.

However, I do not think that the words “Appears to meet requirements. Landing is recommended” mean that the Department is leaving open the question of an applicant meeting the requirements of the Act in order to take account of subsequent events.

In the case at bar, there is no evidence that the information upon which the recommendation for the order in council was based was inaccurate.[i] Rather, it is the subsequent conviction of Mr. Dass that caused the Department to refuse to continue to process his application for landing and permanent residency. I am of the opinion that Mr. Dass’ subsequent conviction is analogous to the withdrawal of sponsorship by the wives in Sivacilar and Dawson, supra. As the withdrawal of sponsorship was found not to affect the right to landing documents in those cases, I am of the view that the subsequent criminal convictions here should not affect the issuance of landing documents or the processing of the permanent residency application in this case.

I come to this conclusion on the basis of the specific wording of the request for the order in council in this case. It may be that in other circumstances the Department, in its request for order in council, could leave open for subsequent determination whether or not an applicant meets the requirements of the Immigration Act. Whether or not an order in council based on an inconclusive recommendation of that form would be granted, would be for the Governor in Council to decide.

In the result, I find that the Department did determine that Mr. Dass had met the requirements of the Act, and that landing was recommended. Upon the issuance of order in council P.C. 1990-748 he became a person with a right to remain in Canada. He had acquired a right to be landed and nothing remained to be done in the granting of landing to him.

For this reason I am of the opinion that refusal of the Department to continue to process Mr. Dass’ application for landing and permanent residence was not consistent with the effect of the Department’s prior determination that the applicant appeared to meet requirements and with the issuance of the order in council.

I am not unmindful of the fact that Mr. Dass has been convicted of a serious offence under the Criminal Code and that the offence relates to domestic violence. As I understand the evidence, one of the offences of which Mr. Dass was convicted was subsection 267(1) of the Criminal Code. It states:

267. (1) Every one who, in committing an assault,

(a) carries, uses or threatens to use a weapon or an imitation thereof, or

(b) causes bodily harm to the complainant,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

The finding in this case is concerned with due process. It relates to the documentation and procedures pertaining to applications for landing and permanent residence. In deciding this case, I am not to be taken as condoning or turning a blind eye to Mr. Dass’ convictions. The order in this case will not entitle Mr. Dass to remain in this country indefinitely as if the criminal convictions never took place. In the case of a permanent resident having been convicted of a serious criminal offence, such as one under subsection 267(1) of the Criminal Code, it is open to the Department to commence proceedings under paragraph 27(1)(d) of the Immigration Act which could lead to Mr. Dass having to leave Canada at some future time.

The application for certiorari is granted quashing the decision of the respondent not to process Mr. Dass’ application for permanent residency and an order of mandamus will issue requiring the respondent to process the application of Mr. Dass for landing and permanent residency while he remains in Canada. Costs to the applicant.

At the conclusion of argument in this case, counsel brought to my attention subsection 83(1) [as am. by S.C. 1992, c. 49, s. 73] of the Immigration Act which came into force February 1, 1993 [SI/93-16]. It states:

83. (1) A judgment of the Federal Court—Trial Division on an application for judicial review with respect to any decision or order made, or any matter arising, under this Act or the rules or regulations thereunder may be appealed to the Federal Court of Appeal only if the Federal Court—Trial Division has at the time of rendering judgment certified that a serious question of general importance is involved and has stated that question.

Both counsel suggested that this decision could raise a serious question of general importance. Since this case was heard on January 27, 1993, and judgment was reserved, counsel were concerned that subsection 83(1) could become operative as of February 1, 1993, and that in order to appeal, the Trial Division Judge making the decision would have to certify and state the question for consideration by the Federal Court of Appeal. However, on February 1, 1993, the Chief Justice of this Court issued the following direction with respect to this and five other cases:

DIRECTION No. 20

PURSUANT TO section 118 of An Act to amend the Immigration Act and other Acts in consequence thereof, S.C. 1992, c. 49 (“the Act”) and because I consider that it is in the interest of the administration of justice to do so,

I HEREBY DIRECT:

1. that section 117 of the Act shall not apply to those applications for judicial review listed in the schedule annexed hereto and forming part of this direction, all of which have been commenced at the Trial Division pursuant to section 82.1 of the Immigration Act, as that section read immediately before the coming into force of section 73 of the Act, and had been set down for hearing before that date;

2. that each of those applications shall be heard and disposed of by the Trial Division as an application for judicial review under section 82.1 of the Immigration Act, as though section 73 of the Act had not been enacted; and

3. that The Federal Court Rules and the practice and procedures of the Trial Division shall apply to those applications for judicial review.

Section 73 of chapter 49 enacted subsection 83(1) of the Immigration Act. By direction no. 20, with respect to this case, subsection 83(1) is to be treated as if it had not been enacted.

Since subsection 83(1) does not apply in this case, it will be open to counsel to take such further action as either of them may consider advisable.

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