[1996] 1 F.C. 497
A-859-92
Harjinderpal Singh Nagra (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Nagra v. Canada (Minister of Citizenship and Immigration) (T.D.)
Trial Division, Muldoon J.—Vancouver, February 3; Ottawa, November 15, 1995.
Citizenship and Immigration — Status in Canada — Permanent residents — Citizen of India entering Canada, marrying Canadian — Granted visa exemption — Convicted of criminal offences — Adjudicator holding not permanent resident, issuing conditional removal order — I.R.B. Appeal Division holding not permanent resident, lacked jurisdiction to hear appeal from removal order — Admission to Canada two-stage proceeding: (1) obtaining visa overseas before presenting self at Canadian port of entry; (2) immigrant’s self-presentation to immigration officer at port of entry for examination — Applicant exempted from first stage only — As not complying with second stage, not permanent resident.
Citizenship and Immigration — Exclusion and removal — Removal of visitors — Applicant entering Canada in 1986 — Convicted of criminal offences in 1990 — Conditional removal order issued on ground person described in Immigration Act, s. 27(2)(d) — S.C.C. subsequently setting aside criminal convictions — As ground therefor eliminated, removal order quashed.
This was an application to set aside Immigration and Refugee Board Appeal Division (the Board) orders granting a motion to dismiss an appeal for lack of jurisdiction, and dismissing the appeal from a removal order; for an order quashing the removal order; and for a declaration that the applicant was a permanent resident.
The applicant is a citizen of India. He entered Canada as a visitor in 1985 and subsequently married a Canadian citizen. In 1986 the Governor in Council granted him an exemption from the requirements of Immigration Act, subsection 9(1), which requires an immigrant to apply for and obtain a visa overseas before appearing at a Canadian port of entry. In 1990, the applicant was convicted of two criminal offences. At a subsection 27(2) inquiry the adjudicator determined that the applicant was not a permanent resident, was a person described in paragraph 27(2)(d), and issued a conditional removal order. The Board concluded that the applicant was not a permanent resident, and therefore he was not a person described in section 70 and it did not have jurisdiction to hear an appeal from the removal order. Subsequently the Supreme Court of Canada set aside the criminal convictions and ordered a new trial, which has yet to take place.
The issues were: (1) whether the applicant was a permanent resident; and, (2) whether the Board had jurisdiction to hear the appeal from the removal order.
Held, the application should be dismissed, except that the removal order should be quashed.
Admission to Canada is at least a two-stage proceeding. The essence of the first stage is set out in subsection 9(1). The second stage is the immigrant’s self-presentation to an immigration officer at a port of entry for examination. There are also other requirements, including background enquiries for a security clearance and the medical clearance required in section 11.
The applicant was exempted from the first stage only. He was never exempted from complying with the provisions of the second stage such as are manifested in sections 11, 12 and 14. As he did not comply with the requirements of the second stage, he did not become a permanent resident of Canada: he was never landed.
The ground for the removal order was eliminated by the setting aside of the criminal convictions. The removal order had no sustaining basis and had to be quashed.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Federal Court Act, R.S.C., 1985, c. F-7, ss. 18.1 (as enacted by S.C. 1990, c. 8, s. 5), 28(1)(g) (rep. by S.C. 1992, c. 49, s. 128).
Immigration Act, R.S.C., 1985, c. I-2, ss. 9(1) (as am. by S.C. 1992, c. 49, s. 4), 11 (as am. idem, s. 6), 12(1) (as am. idem, s. 7), (3), 14(1), (2) (as am. idem, s. 8), (4) (as am. idem), 27(2) (as am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 4; S.C. 1992, c. 49, s. 16), 70 (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18; c. 29, s. 6).
Immigration Regulations, 1978, SOR/78-172, s. 12 (as am. by SOR/83-540, s. 2).
Immigration Visa Exemption Regulations No. 1, 1986, SOR/86-180, s. 3.
CASES JUDICIALLY CONSIDERED
NOT FOLLOWED:
Dass v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 337 (1993), 59 F.T.R. 312 (T.D.).
DISTINGUISHED:
Sivacilar v. Minister of Employment and Immigration (1984), 57 N.R. 57 (F.C.A.).
CONSIDERED:
Ho v. Can. (Min. of Employment and Immigration) (1986), 47 Alta. L.R. (2d) 82; 6 F.T.R. 78 (F.C.T.D.); Ferrerya v. Minister of Employment and Immigration (1992), 56 F.T.R. 270 (F.C.T.D.); Escamilla v. Canada (Solicitor General) (1993), 68 F.T.R. 93; 22 Imm. L.R. (2d) 94 (F.C.T.D.); R. v. Nagra (H.S.) (1993), 44 W.A.C. 81 (B.C.C.A.); revd [1994] 1 S.C.R. 355; (1994), 40 B.C.A.C. 79; 164 N.R. 191; 65 W.A.C. 79.
REFERRED TO:
Dawson v. Minister of Employment and Immigration (1988), 21 F.T.R. 212; 6 Imm. L.R. (2d) 37 (F.C.T.D.); Minister of Employment and Immigration et al. v. Jiminez-Perez et al., [1984] 2 S.C.R. 565; (1984), 14 D.L.R. (4th) 609; [1985] 1 W.W.R. 577; 9 Admin. L.R. 280; 56 N.R. 215; John v. Minister of Employment and Immigration, T-2463-89, judgment dated 10/4/90, Addy J., F.C.T.D., not reported; Virk v. Minister of Employment and Immigration (1991), 46 F.T.R. 145 (F.C.T.D.); Taei v. Minister of Employment and Immigration (1993), 64 F.T.R. 311 (F.C.T.D.); Pillay v. Minister of Employment and Immigration (1993), 70 F.T.R. 12; 22 Imm. L.R. (2d) 146 (F.C.T.D.); Kanes v. Minister of Employment and Immigration (1993), 72 F.T.R. 226 (F.C.T.D.).
APPLICATION for judicial review of Immigration and Refugee Board Appeal Division decision that the applicant was not a permanent resident, and that it lacked jurisdiction to hear an appeal from a conditional removal order (Nagra v. Canada (Minister of Employment & Immigration) (1992), 17 Imm. L.R. (2d) 279 (I.R.B.A.D.)). Application dismissed, except that the removal order was quashed because its sustaining basis was eliminated when the criminal convictions on which it was based were set aside.
COUNSEL:
William J. Macintosh for applicant.
Sandra E. Weafer for respondent.
SOLICITORS:
William Macintosh Associates, Vancouver, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
Muldoon J.: Although this proceeding bears a case number of this Court’s Appeal Division, it has been transferred by the Chief Justice to the Trial Division, pursuant to his Direction No. 18. (Hereinafter, the term “Appeal Division” will refer to Immigration and Refugee Board’s Appeal Division.) Consequently an amended originating notice of motion was filed herein as document 12, on March 2, 1993.
The relief requested by the applicant is stated in his said motion in this way:
(a) an Order to set aside the order of the Immigration Appeal Division of the Immigration and Refugee Board dated April 30, 1992 whereby the Board ordered that the Motion of the Respondent to dismiss the appeal for lack of jurisdiction be allowed;
(b) an Order to set aside the order and decision of the Board dated April 30, 1992 to dismiss the appeal of the Applicant against a removal order made against the Applicant on October 25, 1991;
(c) an Order to quash the removal Order made by Adjudicator Leach made against the Applicant on October 25, 1991;
(d) a Declaration that the Applicant is a permanent resident; and
(e) such further relief as the Court considers appropriate.
The principal ground for the above-stated relief asserted by the applicant is this:
(a) that the Board erred in law in making its decision and orders, and without limiting the generality of the foregoing that the Board erred in law in determining that the Applicant was not a permanent resident and therefore that the Board did not have jurisdiction to hear an appeal by the Applicant pursuant to section 70 of the Immigration Act; and
The Appeal Division (sometimes also: the Board) rendered its decision on April 30, 1992, file No. V91-01621 [(1992), 17 Imm. L.R. (2d) 279]. “It” consisted of a single member of the Appeal Division, by agreement of the parties’ respective counsel. The two issues [at page 281] raised for the Board’s determination were:
(a) whether the adjudicator erred in finding that the appellant [now the applicant] was not a permanent resident and also that he was a person described in paragraph 27(2)(d) of the Act; and
(b) whether the Appeal Division has jurisdiction to hear this appeal.
The reasons of the Board in their salient portions can be utilized here for their findings of fact and demonstration of the member’s reasoning on the issues for which his reasoning is impugned here. Those reasons, starting on page 281, run as follows:
The appellant is a citizen of India. He entered Canada as a visitor in February, 1985. Subsequently, he was married to a Canadian citizen. His wife filed an Undertaking of Assistance to sponsor the appellant’s application for permanent residence. The appellant applied for an exemption from the requirements of subs. 9(1) of the Immigration Act, 1976 [S.C. 1976-77, c. 52] (also subs. 9(1) of the Act) that he make application and obtain a visa before he appears at the port of entry. (9.(1) Except in such cases as are prescribed, every immigrant and visitor shall make an application for and obtain a visa before he appears at a port of entry.) The appellant’s application for permanent residence was considered by ..., [an] Immigration Officer. On June 11, 1985, she made a determination to approve the application for visa exemption. As a consequence of this decision, she prepared an IMM 655 form. This is a request for special authority from the Governor-in-Council for a waiver of the requirements of subs. 9(1) of the Immigration Act, 1976.
The form was duly completed by Ms. [the immigration officer]. It was submitted to the Governor-in-Council. On January 30, 1986, the Governor-in-Council granted the exemption sought by the appellant. Order in Council no. 1986-291 was registered and published in the Canada Gazette, Part II, as a statutory order. The appellant’s exemption was included in that Order in Council as item 738.
In 1990, the appellant was convicted of two criminal offences. As a result of these convictions, he became the subject of an immigration inquiry held pursuant to subs. 27(2) of the Act. The appellant asserted at the inquiry that he was a permanent resident of Canada because on January 30, 1986, the Governor-in-Council had granted him a visa exemption. The adjudicator determined that the appellant was not a permanent resident and that he was a person described in para. 27(2)(d) of the Act.
Accordingly, the adjudicator issued a conditional removal order against the appellant. On the same date, the appellant’s refugee claim was forwarded to the Convention Refugee Determination Division (the “Refugee Division”) by the panel because the respondent’s representative at the credible basis hearing conceded that the appellant had a credible basis for his refugee claim.
Counsel for the appellant contends that the appellant became a permanent resident on the day that the Order in Council was granted. The appellant had met all the requirements under the Act and the regulations. There was nothing further that needed to be done by the immigration officer. There was no qualification put on the request form by the Governor-in-Council. Therefore, the adjudicator should have determined the appellant to be a permanent resident. The consequence of such a determination by the adjudicator would have been that the adjudicator would have been obliged to dismiss the report against the appellant. (Anderson v. Minister of Employment & Immigration, [1981] 2 F.C. 30 113 D.L.R. (3d) 243, 36 N.R. 423 (C.A.), where the Federal Court of Appeal held that an adjudicator could only make a deportation order based on grounds contained in the written report to the Deputy Minister that formed the basis of the inquiry.) This is because as a permanent resident, the appellant could not be a person described in paragraph 27(2)(d) of the Act. There was no other allegation contained in the section 27 report.
Counsel for the appellant relied upon the decision of the Federal Court of Appeal in Sivacilar (Sivacilar v. Canada (Minister of Employment& Immigration) (1984), 57 N.R. 57 (Fed. C.A.)). In that case, Mr. Sivacilar had come to Canada as a visitor. He was married in Canada to a Canadian citizen. He was able to obtain a visa exemption. An Order in Council to this effect was granted by the Governor-in-Council.
Subsequently, Mr. Sivacilar’s wife purported to withdraw her sponsorship. An inquiry was convened on the basis that Mr. Sivacilar had been employed in Canada without first obtaining an employment authorization. The adjudicator had to determine if Mr. Sivacilar should be removed from Canada. The adjudicator issued a departure notice. Mr. Sivacilar applied for judicial review of the adjudicator’s decision. The Federal Court of Appeal set aside the decision of the adjudicator. Hugessen J.A. writing for the Court, stated at p. 59:
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 a 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.
(Italic added.)
(Typed as per original with errors and/or omissions.)
Appellant’s counsel submitted that Sivacilar stands for the proposition that landing is effected by a process of decisions. In particular, “landing” which is defined in subs. 2(1) of the Act as meaning “lawful permission to come into Canada to establish permanent residence” is merely a determination by an immigration officer that a person is admissible to Canada. In the case where the requirement of obtaining an immigrant visa is waived, the person is landed after the immigration officer makes a decision that the person meets all the requirements of the Act and regulations.
Appellant’s counsel submitted that, in this case, this decision was made by Ms. [immigration officer] when she submitted the request for exemption to the Governor-in-Council. Once this was obtained, the appellant was landed.
There was no requirement in the Act or the regulations that an immigration officer take an additional step and land the appellant by completing a record of landing. Counsel for the appellant categorized this step as an after the fact recording of the previous determination by the immigration officer.
Counsel for the respondent submitted that the Federal Court of Appeal in Sivacilar simply set aside the departure notice against Mr. Sivacilar. By the granting of the exemption from the requirements of subs. 9(1) of the Immigration Act, 1976, the Governor-in-Council conferred upon Mr. Sivacilar the right to be landed in Canada. The Court did not confer permanent resident status upon Mr. Sivacilar. It simply allowed Mr. Sivacilar to exercise the right to be landed by an immigration officer.
In support of his argument, respondent’s counsel relied upon the decisions of the Federal Court of Canada, Trial Division in Ho (Ho v. Canada (Minister of Employment & Immigration) (1986), 47 Alta. L.R. (2d) 82, 6 F.T.R. 78) and Dawson (Dawson v. Canada (Minister of Employment & Immigration) (1988), 6 Imm. L.R. (2d) 37, 21 F.T.R. 212).
The sole Board member of the I.R.B.’s Appeal Division then continued to report the Minister’s counsel’s analysis of Ho [Ho v. Can. (Min. of Employment and Immigration) (1986), 47 Alta. L.R. (2d) 82 (F.C.T.D.)] and Dawson [Dawson v. Minister of Employment and Immigration (1988), 21 F.T.R. 212 (F.C.T.D.)]. The Board continued at pages 285-286 thus:
The learned Associate Chief Justice made it clear that the effect of his ruling was not to confer landed immigrant status upon Mr. Ho.
The learned judge stated at p. 80 [F.T.R.]:
I also assume that, since the effect of this decision is only to preserve the right of Kwong Man Ho to pursue his application for landed status and does not order the granting of status, the respondent’s concerns in that regard are fully met.
The Federal Court of Canada reached a similar conclusion in Dawson. The Honourable Mr. Justice Teitelbaum followed Sivacilar and held that the wife’s withdrawal of her sponsorship had no force or effect because the applicant had acquired the right to be granted permanent residency in Canada as a landed immigrant when the Governor-in-Council’s exemption from the requirements of s. 9 of the Immigration Act, 1976 had been granted. The court issued an order by way of mandamus that the respondent Minister process the application for landing filed by the applicant and to grant him permanent resident status in Canada.
Counsel for the respondent argued that the above two cases supported the proposition that, while the appellant had acquired the right to obtain permanent resident status following the granting of the exemption from the requirements of subs. 9(1) of the Act by the Governor-in-Council, it did not confer landed immigrant status upon the appellant. Status as a permanent resident could only be conferred by an immigration officer taking the additional step of landing the appellant or by an order of the court ordering the respondent Minister to take that action. Provided that the requirements of the Act and the regulations had been met, the person concerned would be landed by an immigration officer. This action did not take place in this case. Therefore, the appellant was not a permanent resident.
Counsel for the respondent submitted that the adjudicator did not err in rejecting the appellant’s claim for permanent resident status and in finding the appellant to be a person described in para. 27(2)(d) of the Act.
The Board member concluded that the respondent’s counsel was correct. He found that the waiver of requirement of subsection 9(1) of the Act [Immigration Act, R.S.C., 1985, c. I-2] from the Governor in Council is akin to being issued a visa by a visa officer and then presenting oneself before an immigration officer for examination at a port of entry pursuant to the Regulations’ section 12 [Immigration Regulations, 1978, SOR/78-172 (as am. by SOR/83-540, s. 2)].
The Board’s reasons continue at page 286:
The issuance of the visa by the visa officer does not confer landed immigrant status on the prospective immigrant any more than does the granting of an exemption by the Governor-in-Council.
Landed immigrant status is only obtained after the immigrant is landed by the immigration officer at the port of entry. Similarly, while the appellant had acquired the right to obtain permanent resident status, his right would only crystallize when he was landed by an immigration officer.
Nowhere in the reasons for judgment of the Honourable Mr. Justice Hugessen in Sivacilar is there any mention that the mere granting of the waiver by the Governor-in-Council from the requirements of subs. 9(1) of the Immigration Act, 1976, confer upon the person concerned the status of a landed immigrant.
I am further of the opinion that decisions of the Federal Court of Canada in Ho and Dawson accurately set out the state of the law in this area. Both decisions are consistent with the decision of the Supreme Court of Canada in Jiminez-Perez [[1984] 2 S.C.R. 565]. In Jiminez-Perez, the Supreme Court of Canada held that there is no landing application to be granted or sponsored until the Order in Council waiver is granted. Jiminez-Perez was not considered by the Federal Court of Appeal in Sivacilar. I am prepared to follow both Ho and Dawson. I therefore agree with the adjudicator’s conclusion that the appellant was not a permanent resident and thus a person described in para. 27(2)(d) of the Act.
The Board [at page 287] also concluded that since the applicant is not a person described in section 70 [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18; c. 29, s. 6] of the Act, he is “not a person who has been conferred with a right of appeal to the Appeal Division”, which, he concluded, was without jurisdiction to hear and determine the appeal. The Board’s decision is reported at (1993), 17 Imm. L.R. (2d) 279.
This issue of whether the exempting order in council ipso facto, itself, constitutes permanent residence for the applicant, or not, although the Act and Regulations do not explicitly so provide, has been recently considered by a Trial Division Judge in Dass v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 337 With complete and willing respect to a colleague of equal rank, this judge notes that there are findings in Dass upon which reasonable people could respectfully disagree without rancour. Thus, at page 346:
... 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’s subsequent conviction is analogous to the withdrawal of sponsorship by the wives in Sivacilar and Dawson, (supra). As the withdrawal 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 or the processing of the permanent residency application in this case.
It is that analogy which this judge finds some difficulty in reconciling. Withdrawal of sponsorship does not imply or necessarily involve any antisocial or criminal acts on the applicant’s part. There is no perpetration of any crime or other offence against Canada and the Canadian people implied in the withdrawal of spousal sponsorship. To analogize criminal offences on the applicant’s part with the withdrawal of sponsorship on the applicant’s spouse’s part, is to draw a long bow—perhaps far too long. With utmost respect for a learned colleague, criminal acts on the applicant’s part must be viewed, in general and without mitigating factors, as acts which disqualify an applicant from proceeding with an application for landing.
If landing or establishing permanent residence be a two-stage proceeding, then, obtaining exemption from applying abroad for a visa will not of itself eliminate the second stage. Such, at least, seems to be the true intent of Parliament. Here is the critical path; starting in the Act’s Part II “Admission to Canada” [s. 9(1) (as am. by S.C. 1992, c. 49, s. 4)]:
9. (1) Except … as … prescribed … every immigrant … shall make an application for and obtain a visa before that person appears at a port of entry.
The theme of appearing at a port of entry continues in the ordinary course of events. An “immigrant” is a “person who seeks landing” through, of course, a port of entry.
Still in Part II—Admission to Canada, one finds [ss. 12(1) (as am. idem, s. 7), (3), 14(1), (2) (as am. idem, s. 8), (4) (as am. idem)]:
12. (1) Subject to the regulations, every person seeking to come into Canada shall appear before an immigration officer at a port of entry ... for examination to determine whether that person is a person who shall be allowed to come into Canada or may be granted admission [i.e. entry or landing].
…
(3) Where an immigration officer commences an examination referred to in subsection (1), the officer may, in such circumstances as the officer deems proper,
(a) adjourn the examination and refer the person being examined to another immigration officer for completion of the examination; and
(b) detain ... the person.
…
14. (1) Where an immigration officer is satisfied that a person whom the officer has examined
(a) has a right to come into Canada,
…
the officer shall allow that person to come into Canada.
(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.
…
(4) Where an immigration officer is satisfied that it would not be contrary to this Act or the regulations to grant landing to an immigrant who has been authorized pursuant to paragraph (2)(b), 23(1)(b) or 32(3)(b) to come into Canada, the officer shall, after such further examination as the officer deems necessary, grant landing to the immigrant.
Above are recited the bare essentials of the statutory scheme of admission to Canada. As noted earlier herein, it is at least a two-stage proceeding. Subsection 9(1) is the essence of the first stage, requiring applying for and obtaining a visa overseas before presenting oneself at a Canadian port of entry. The second stage is the self-presenting of the immigrant, would-be permanent resident, to an immigration officer at a port of entry for examination. It is at least a two-stage proceeding, unless and until Parliament enacts otherwise. There are, of course, other requirements, the most obvious of which are background enquiries for a security clearance and the medical clearance required in section 11 [as am. idem, s. 6].
In the case of Sivacilar [Sivacilar v. Minister of Employment and Immigration (1984), 57 N.R. 57] the Court of Appeal held that the applicant there, holder of an immigrant visa, had the right to come into Canada. Such people, including Mr. Sivacilar had acquired the right to be landed. The Court however did not hold that he had acquired permanent resident status. It did say “nothing remains to be done” in granting landing to Sivacilar, but that was because in that instance, on those facts, all the necessary clearances had been effected. The right to be landed is not of itself landing, but only a right still to be exercised if there be no legal obstacles in the opinion of an immigration officer. Two distinct stages. Sivacilar, then, does not govern this present case at bar, so as to obviate those stages.
Such a notion of two stages, at least, was expressed in Ho v. Can. (Min. of Employment and Immigration) (1986), 47 Alta. L.R. (2d) 82 (F.C.T.D.), where, at page 85, the Associate Chief Justice is reported, thus:
The facts are identical to those in Sivacilar and I consider myself bound by the Sivacilar decision. The proper conclusion here is that Kwong Man Ho retains the right to perfect his application from within Canada, exempt from the provisions of s. 9 of the Act, a right which cannot be taken from him by any withdrawal of sponsorship on the part of his wife. As such, he is not subject to inquiry as would be a visitor who had overstayed the authorized period, and an order will go prohibiting the conduct of any such inquiry. There will also be an order by way of mandamus directing the respondents to process such application from within Canada in accordance with existing law and regulations. The outcome of any such application is not my concern and any order purporting to direct a result of that application would be inappropriate. [Emphasis not in original text.]
The Associate Chief Justice declined to declare that the applicant was already landed.
Madam Justice Reed, in Ferrerya v. Minister of Employment and Immigration (1992), 56 F.T.R. 270 (F.C.T.D.), did not repudiate the at-least-two-stages notion. She held, as recorded at page 272:
It is clear, in my view, that an order-in-council exempting an individual from the visa requirements of subs. 9(1) of the Immigration Act, R.S.C. 1985, c. I-2, does not confer a right to permanent residence on the applicant. The exemption’s effect is to allow the making of an application for landing despite the fact that the applicant is already within Canada. [s. 9(1) stated:] “Except in such cases as are prescribed, every immigrant and visitor shall make an application for and obtain a visa before that person appears at a port of entry”.
The Sivacilar decision (Sivacilar v. Minister of Employment and Immigration (1984), 57 N.R. (F.C.A.)) is based on the fact that the application for landing had been determined. It had been dealt with before the exempting order-in-council issued. Mr. Justice Hugessen makes it abundantly clear that on two occasions in the application, it was stated that, that applicant had met all the requirements of the Act.
Mr. Justice Gibson, in Escamilla v. Canada (Solicitor General) (1993), 68 F.T.R. 93 (F.C.T.D.), where a record of landing had never been issued to the applicant, is reported to have this to say about the at-least-two-stages notion, at page 99:
The Applicant certainly was not a Canadian citizen. Permanent residents are persons who, among other things, have been granted landing. Having just concluded that the Department was not, by virtue of the Order-in-Council described above, obliged to grant the applicant landing, that is, permission to come into Canada or remain in Canada to establish permanent residence, and there being no evidence whatsoever before me that the Applicant had de facto been landed, the adjudicator as an official who is bound by the provisions of the Immigration Act, had no alternative but to proceed with the inquiry pursuant to s. 27(2).
…
The conditional deportation order made by the adjudicator was made by him in accordance with law. I find no basis that would justify an order quashing it or setting it aside. Two reports were appropriately made by immigration officers to the Deputy Minister of Employment and Immigration. The choice to proceed on the basis of the report under s. 19(1)(c) of the Immigration Act in respect of the offence committed within Canada for which the applicant was convicted after the Order-in-Council was issued rather than to proceed on the basis of the earlier report under s. 19(2) in respect to the offence committed outside Canada, was entirely open to the Deputy Minister of Employment and Immigration who directed the Inquiry. ...
As indicated above, I have concluded, as did the Adjudicator, that the applicant was not a person who had acquired the right to come into or remain in Canada. He was effectively barred at all relevant times by s. 19(2)(a) of the Immigration Act. Although that paragraph contains a relieving process, the onus to institute it in the circumstances of this case lay on the applicant and there was no evidence before me that he endeavoured to discharge that onus.
Other jurisprudence cited by the parties consisted of:
Minister of Employment and Immigration et al. v. Jiminez-Perez et al., [1984] 2 S.C.R. 565; John v. Minister of Employment and Immigration (T-2463-89, April 10, 1990 Addy, J.), not reported; Virk v. Minister of Employment and Immigration (1991), 46 F.T.R. 145 (F.C.T.D.); Taei v. Minister of Employment and Immigration (1993), 64 F.T.R. 311 (F.C.T.D.); Pillay v. Minister of Employment and Immigration (1993), 70 F.T.R. 12 (F.C.T.D.); and Kanes v. Minister of Employment and Immigration (1993), 72 F.T.R. 226 (F.C.T.D.).
The applicant is a Sikh preacher according to the information on page 70 of his application record, a copy of his request for special authority from the governor in council: in the transcript of the hearing before the adjudicator, he is said to be a lawyer. The two professions are not incompatible. The immigration officer who signed that request for special authority to waive the requirements of the Act’s subsection 9(1) “visa”, was principally concerned about the bona fides of the applicant’s marriage and her concern was allayed. She signed that request on June 11, 1985. The exempting Order in Council P.C. 1986-291, registered as SOR/86-180 [Immigration Visa Exemption Regulations No. 1, 1986], January 30, 1986, is published in the Canada Gazette, Part II, Vol. 120, No. 4 of 19/2/86. It is stated to be made “pursuant to subsection 9(1) and paragraph 115(1)(ii) of the Immigration Act, 1976.” Its operative section is 3, “Subsection 9(1) of the Act does not apply to an immigrant whose name appears in the schedule.” The applicant is named in the schedule. What does not thereby apply to him? The very same subsection 9(1) which is earlier recited herein is what. So, the applicant was lawfully exempted from the statutory requirement to “make an application for and obtain a visa before [he] appears at a port of entry”. That is the first stage and that is his exemption, no more and no less.
The applicant was never exempted from complying with the provisions of the second stage such as are manifested in sections 11, 12 and 14, for example. But, as this file reveals, he did not comply with the requirements of the second stage. Thus, he did not become a permanent resident of Canada: he was never landed. This is confirmed by the certificate by J.-Y. Prévost copied on page 63 of the applicant’s record. The learned member of the Appeal Division rightly held:
The issuance of the visa by the visa officer does not confer landed immigrant status on prospective immigrant any more than does the granting of an exemption by the Governor-in-Council.
This Court upholds that conclusion.
The Appeal Division further held that because the applicant was not a permanent resident, he was not a person described in the Act’s section 70. Therefore the Appeal Division had no jurisdiction to pronounce on his appeal against the removal order issued against him.
The foregoing finding was strongly pressed by the applicant’s counsel for adjudication, and to be reserved.
In the meanwhile, in February and June, 1990, even before the adjudicator’s decision, and before the conditional deportation order was issued on October 25, 1991, the applicant was experiencing trouble with the criminal law.
So, obviously at the time when the Board’s decision was being formulated and rendered, between March 12 and April 30, 1992, a criminal law conviction on two counts of conspiracy was in place against the applicant, and it was on this conviction, in essence, that the deportation order was based. The offences are described in a document, “Admission of Facts” which the applicant’s counsel signed on his behalf on April 30, 1991, which is confirmed by the copy of the indictment, and the other documents of and in the County Court of Vancouver, pages 51 through 64 of the applicant’s record. Paragraph 3 of the Admission of Facts (page 64) runs:
3. [The applicant, Nagra] was convicted in Vancouver, B.C. on June 28th, 1990 [by Wetmore, C.C.J. and a jury] of the following offences: (a) one count of conspiracy to commit the indictable offence of fraudulent personation contrary to paragraph 403(a) of the Criminal Code of Canada; and (b) one count of conspiracy to commit the indictable offence of procuring a passport by knowingly making a written or an oral statement that is false, contrary to paragraph 57(2)(b) of the Criminal Code of Canada.
The applicant was sentenced to a concurrent term of four months’ imprisonment on the first two of three counts, as seen on page 62.
The British Columbia Court of Appeal found some flaws in the County Court’s verdict but nevertheless dismissed the applicant’s appeal [(1993), 44 W.A.C. 81]. The wheels of justice ground on and on March 14, 1994, rather long after the I.R.B. Appeal Division’s decision was released (April 30, 1992), the Supreme Court of Canada spoke. The citation is R. v. Nagra, [1994] 1 S.C.R. 355. The judgment of the Supreme Court was delivered orally by the Chief Justice [at page 356]:
We need not hear from you Mr. Tammen. We are allowing the appeal. We are of the view that we do not think this is an appropriate case in which the provisos of s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46, [no substantial wrong or miscarriage of justice] should have been applied [by the B.C. Court of Appeal].
Therefore, the appeal is allowed, the conviction is set aside and a new trial is ordered.
That disposition is a far cry from an outright acquittal. It did, however, set aside, or vacate, the convictions upon which the deportation order was based. No word of the new trial, if any, has been received by this Court.
Now, what? The impugned decision by the Board’s learned member on April 30, 1992 was and remains quite correct. Since then, the ground for the deportation order has been cut out from under it by the setting aside of the criminal convictions imposed on the applicant. It can now more clearly be seen why the applicant’s counsel is so insistent to have this Court declare the applicant to be already a permanent resident. But the best one can say about it, is that with the convictions set aside maybe he should be a permanent resident, but maybe not.
The Supreme Court of Canada ordered a new trial. Whether the new trial will ever be held, this Court does not know. Essential witnesses could have drifted away or, if not, their memories may not be so acute now, as they were at the time of trial. There could be other reasons. The question of new trial or not, can possibly be answered by the Attorney General of British Columbia.
In the meanwhile, the applicant is not shown to have completed the second stage for obtaining permanent residence, because of the then quite legitimate report under subsection 27(2) [as am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 4; S.C. 1992, c. 49, s. 16] of the Immigration Act. The respondent’s counsel “concedes that the deportation order can no longer stand” (transcript: page 5, lines 8 and 9). That is a perfectly proper concession, but, of course, the deportation order will not just lie down and die because of it. It needs to be put down, or quashed, by judicial authority, if the adjudicator who made the deportation order cannot do that because he is perhaps functus officio.
Here, at pages 50-51 of the transcript, is the respondent’s entirely reasonable position:
MS. WEAFER: [respondent’s counsel] My Lord, as I indicated to you at the outset, this question did not need to be determined today, as the whole issue of whether he is a permanent resident arises because of the fact that he would like to appeal the deportation order. And as I have indicated to Your Lordship, the respondent is prepared to concede that the deportation order, being based on convictions which have been overturned by the Supreme Court of Canada, can’t stand.
I also note that, although my friend in his application for what was at that time an originating Notice of Motion, did seek to have the deportation order quashed. I don’t think that question can actually properly be before your Lordship in a case where the only decision being challenged is the decision of the Immigration Appeal Division. But I take it from my friend he does not wish to do whatever is necessary to get that question directly before Your Lordship.
Both counsel enter into questionable arguments as recorded in the transcript at page 55, line 19, to page 57, line 57 and page 59, line 25, to page 60, line 11. One thing is entirely clear and that is that the respondent seems willing to bend over backwards to help the applicant to vacate or to extinguish the deportation order made by the Adjudicator on October 25, 1991:
ON THE BASIS OF THE EVIDENCE ADDUCED AT THE INQUIRY HELD UNDER THE PROVISIONS OF THE IMMIGRATION ACT AS AMENDED I HEREBY CONDITIONALLY ORDER THAT YOU BE DEPORTED PURSUANT TO PARAGRAPH 32.1(4) OF THAT ACT BECAUSE YOU ARE A PERSON DESCRIBED IN
paragraph 27(2)(d) of the Immigration Act, in that you are a person who has been convicted of an offence under the Criminal Code of Canada.
(Typed as per original with errors and/or omissions.)
Both counsel seemed to be oblivious of:
1. the Chief Justice’s Direction No. 18;
2. the repeal of paragraph 28(1)(g) of the Federal Court Act [R.S.C., 1985, c. F-7] by S.C. 1992, c. 49, section 128; and
3. the relief sought by the applicant herein as recited, above, from paragraph (c) of his amended originating notice of motion pursuant to section 18.1 [as enacted by S.C. 1990, c. 8, s. 5] of the Federal Court Act: an order to quash the removal order made by Adjudicator Leach made against the applicant on October 25, 1991.
The first two items above are procedural provisions. The very salutary rule of interpretation exacts that, an applicant (or plaintiff) is not to be deprived of his or her standing in substantive law at the time of invoking the Court’s power to relieve, but that the parties must nevertheless abide by procedural amendments as and when such amendments come into force. Given the import of factors 1 and 2 above, this Court is not in the least hampered in according the applicant the relief he seeks in his motion’s paragraph (c). This appears to be the common-sense knife with which to cut the Gordian knot in which the parties’ respective counsel have tied themselves. This particular knot appears to be a unique one.
So, in summation the Adjudicator was correct in holding that the applicant is not a landed, permanent resident; but it now turns out after the decision that the concurrent deportation order made by the Adjudicator has no sustaining basis, and must be quashed; and, the orders rendered by the Appeal Division’s sole member are all also correct because the applicant had, and still has no status as a permanent resident; and no serious question of general importance arises here.
The respondent’s designation must be modified nunc pro tunc to that which appears above.
Accordingly, this Court is concurrently ordering that, with leave, the removal order made by Adjudicator Leach against the applicant on October 25, 1991, shall be quashed; and in all other respects the applicant’s amended originating notice of motion is accorded leave and is dismissed.