T-282-80
Donald Wayne Lawrence (also known as Jimmy
Ray Henson), and Glorianne Marilyn Lawrence
(Applicants)
v.
Minister of Employment and Immigration and
Jean Boisvert, Immigration Officer, in his capaci
ty as Manager, Canada Immigration Centre, Win-
nipeg (Respondents)
Trial Division, Smith D.J.—Winnipeg, January 16
and February 12, 1980.
Immigration — Prerogative writs — Mandamus —
Application for landing by a fugitive from U.S. with Canadian
wife sponsoring his application — Applicant, while in Canada,
convicted of criminal offences, sentenced to prison, and after
inquiry, ordered by departure notice to leave — Department
did not proceed with application for landing or application to
sponsor until application for landing made from visa office
abroad — Mandamus sought directing respondents to (1)
consider application for landing, (2) determine if grant of
landing contrary to law, (3) determine if special relief neces
sary for acceptance of application for landing, and if so, that
steps be taken to determine if that relief available, and (4),
advise applicants of the outcome of their applications —
Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 2(1), 9(1),
19(2)(d) — Immigration Regulations, 1978, SOR/78-172, ss.
4(a), 6(1).
After escaping lawful custody in the U.S. while serving a
five-year sentence, applicant Donald Lawrence entered
Canada, in 1975, stating that he was a Canadian citizen
returning to Canada. Lawrence was a U.S. citizen. On January
29, 1979, he was convicted of four criminal offences and
sentenced to eighteen months' imprisonment, and on February
5, 1979 the applicants were married. Mrs. Lawrence is Canadi-
an. An Adjudicator conducted an inquiry while Lawrence was
serving his sentence and caused a departure notice to issue
requiring Donald Lawrence to leave Canada by April 1, 1980.
In late 1979, Mr. Lawrence applied to be granted landing, and
Mrs. Lawrence applied to sponsor her husband's application.
The Department took the position that it côuld not consider
either application until Mr. Lawrence made his application for
landing at a visa office abroad. Applicants now apply for a writ
of mandamus directing that respondents (1) accept and consid
er Mr. Lawrence's application for permanent residence in
Canada, (2) determine whether or not it would be contrary to
the Act and Regulations to grant him landing, (3) determine
whether Mr. Lawrence requires the granting of special relief as
a condition precedent to the acceptance of his application for
permanent residence, and if so, that respondents take those
steps necessary to determine if that relief will be granted, and
(4) advise applicants if their applications have been accepted or
rejected.
Held, the application is granted. It is proper for the Depart
ment initially to refuse to process an application for permanent
residence until the applicant applies for a visa at a visa office
abroad, but it cannot properly decline indefinitely to take any
action in respect of the application. If the Department learns
that the applicant does not intend to go to a visa office abroad
or if a reasonable time has elapsed without the applicant's
having advised the Department to which office his application
is to be sent, the proper course is for the Department to refuse
the application on the ground that the applicant does not have a
visa under section 9(1) of the Immigration Act, 1976. There
are other grounds in the evidence taken before the Adjudicator
on which the Department, if it so wished, could refuse the
application. It is clear Mr. Lawrence has no intention of going
to the United States to apply at a Canadian visa office for a
visa. Mrs. Lawrence is entitled to have her application to
sponsor her husband's application dealt with. Once Mr. Law-
rence's application is refused, which on the law would be the
likely decision, her sponsoring application may be refused on
the ground that, under section 79(1)(b) he does not meet the
requirements of the Act or Regulations. The Department,
because of the existence of compassionate and humanitarian
grounds which might possibly be deemed as granting Mr.
Lawrence a landing, and the duty to treat him fairly, should
make a decision on the application before Mr. Lawrence is
required to leave Canada under the departure notice and in
time that his rights of appeal and those of his sponsor are not
thwarted.
Gachinga v. Minister of Employment and Immigration,
distinguished. Athwal v. Minister of Employment and
Immigration, distinguished. Dawson v. Minister of
Employment and Immigration, distinguished. Tremblay-
Singh v. Minister of Employment and Immigration, dis
tinguished. Minister of Employment and Immigration v.
Sleiman, distinguished.
APPLICATION.
COUNSEL:
Arne Peltz for applicants.
Craig Henderson for respondents.
SOLICITORS:
Arne Peltz, Winnipeg, for applicants.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for judgment
rendered in English by
SMITH D.J.: This is an application by the appli
cants for a writ of mandamus directing that:
1. The Respondents accept and consider the application of
Donald Wayne Lawrence (also known as Jimmy Ray Henson)
for permanent residence in Canada, pursuant to the said Act
and Regulations.
2. The Respondents determine whether or not it would be
contrary to the said Act and Regulations to grant landing to
the Applicant Donald Wayne Lawrence.
3. The Respondents determine whether the Applicant Donald
Wayne Lawrence requires, as a condition precedent to the
acceptance of his application for permanent residence, the
granting of special relief pursuant to Sections 9(1) and
115(I)(ii) of the said Act, and if so, that the Respondents take
all necessary and usual steps to determine whether such relief
will be granted by the relevant authority.
4. That the Respondents notify the Applicant Donald Wayne
Lawrence whether his application for permanent residence has
been accepted or rejected, and further, that the Respondents
notify the Applicant Glorianne Marilyn Lawrence in writing
whether her application to sponsor Donald Wayne Lawrence as
a member of the family class has been accepted or rejected,
pursuant to Section 79 of the said Act.
5. And for such other relief as to this Honourable Court may
seem just.
The applicant, Donald Wayne Lawrence, is a
citizen of the United States of America. The other
applicant is a citizen of Canada by birth.
The facts are not in dispute. So far as is relevant
to this motion, they may be summarized as
follows.
The applicant, Donald Wayne Lawrence,
entered Canada on July 5, 1978. He had escaped
from lawful custody in an American prison. At the
Canadian border he was questioned by a Canadian
customs officer, to whom he said his name was
Jimmy Ray Henson and that he was a Canadian
citizen returning to Canada. He went straight to
the residence of the other applicant, in Winnipeg
and they began to live together as man and wife.
He had become acquainted with her in 1975,
through correspondence, and had seen a good deal
of her when he had been in Winnipeg on a lengthy
visit. In 1977 he returned to the United States
because he had learned that his mother was dying.
Shortly afterwards he was apprehended for a mail
fraud offence committed in 1975. He was sen
tenced to five years' imprisonment for that offence,
and while serving that term he escaped on July 3,
1978 and came to Canada. During the ensuing six
months he worked in unauthorized employment at
several part-time jobs including about 10 days at
the Winnipeg Winter Club.
On February 5, 1979 the applicants were mar
ried in Winnipeg. On January 29, 1979 Donald
Wayne Lawrence had been convicted of four
offences under section 338 of the Criminal Code,
R.S.C. 1970, c. C-34, as amended by S.C. 1974-
75-76, c. 93, s. 32, and sentenced to 18 months'
imprisonment. The maximum term that could
have been imposed is ten years.
Following a report made against him under
section 27(2) of the Immigration Act, 1976, S.C.
1976-77, c. 52, an inquiry was held by Kevin
Flood, an Adjudicator, on April 19, 1979 concern
ing the applicant, Donald Wayne Lawrence. At
that time he was serving the 18 months' imprison
ment imposed on him on January 29, 1979. At the
conclusion of the inquiry the Adjudicator stated
that in many ways this was the most unusual case
he had heard. His decision was that a departure
notice would be issued against the applicant
requiring him to leave Canada on or before April
1, 1980.
On January 10, 1980 the originating notice of
motion in the present application was filed. In the
intervening period, the following things had
happened:
1. On November 14, 1979, Mr. Arne Peitz, counsel for the
applicants, wrote the Manager of the Canada Immigration
Centre (Exhibit "A" to the affidavit of Glorianne Marilyn
Lawrence), stating that Donald Wayne Lawrence wished to
apply for landing, pursuant to the Immigration Act, 1976, and
that Mrs. Lawrence wished to sponsor her husband's applica
tion, pursuant to section 4 of the Immigration Regulations,
1978. His letter continued:
Kindly interview this couple and determine whether this
application will be accepted. if you are of the view that an
exception to existing provisions is required in this case, this is
to request that you take the usual steps to effectuate same,
pursuant to the Act and Regulations.
If, in your opinion, Mr. Lawrence may not be granted
landing, kindly provide to him and Mrs. Lawrence a written
notification refusing the application and setting forth all the
reasons for the refusal. It would be appreciated if a copy
could be supplied to the writer.
2. On December 19, 1979, Mrs. Lawrence met with Mr. P. Y.
Lau, an immigration officer, at the Canada Immigration
Centre, Winnipeg. She gave him the foregoing letter and asked
him to take her application to sponsor her husband as a
member of the family class. He did so, but refused to accept
and process an application by her husband for permanent
residence in Canada.
Note: The wording of this paragraph is taken from Mrs.
Lawrence's affidavit. It is not strictly correct, as under the
present law she sponsors, not her husband, but her husband's
application.
3. On October 28, 1979, Mrs. Lawrence received a letter
(Exhibit "B" to her affidavit), dated December 21, 1979, from
Mr. Lau, reading as follows:
This refers to the "Sponsorship of Application by a member
of Family Class and Undertaking of Assistance" (form 1MM
1009), you submitted on December 19, 1979, on behalf of
your husband, Mr. Donald Wayne Lawrence.
Our legislation does not permit us to consider an undertaking
in isolation from an application for admission made by your
husband which, in accordance with Section 9 of the Immi
gration Act, must be made at one of our visa offices abroad
and assessed by a visa officer.
We are, therefore, unable to give any further consideration to
your undertaking until your husband applies for permanent
residence in Canada at any one of our visa offices abroad.
When we are advised that he has done so, we will forward
your undertaking to that office for consideration.
A copy of this letter is being forwarded to your lawyer, Mr.
Arne Peitz, for his information.
The position taken by the Department is clearly
stated in the foregoing letter. The Department
relies on the following statutory and regulatory
provisions.
Section 9(1) of the Immigration Act, 1976,
which reads:
9. (1) Except in such cases as are prescribed, every immi
grant and visitor shall make an application for and obtain a visa
before he appears at a port of entry.
Donald Wayne Lawrence did not have a visa
when he entered Canada on July 5, 1978.
Section 19(2)(d) of the Act:
19....
(2) No immigrant and, except as provided in subsection (3),
no visitor shall be granted admission if he is a member of any of
the following classes:
(d) persons who cannot or do not fulfil or comply with any
of the conditions or requirements of this Act or the regula
tions or any orders or directions lawfully made or given
under this Act or the regulations.
Donald Wayne Lawrence did not comply with
the requirement that he obtain a visa before
appearing at a port of entry. Nor has he obtained
one since that date.
Section 2(1) of the Act, which defines "visa"
and "visa officer", as follows:
2. (1) ...
"visa" means a document issued or a stamp impression made
on a document by a visa officer;
"visa officer" means an immigration officer stationed outside
Canada and authorized by order of the Minister to issue
visas;
Sections 4(a) and 6(1) of the Regulations
[SOR/78-172], which read, in part:
4. Every Canadian citizen and every permanent resident
may, if he is residing in Canada and is at least eighteen years of
age, sponsor an application for landing made
(a) by his spouse;
6. (1) Where a member of the family class makes an
application for an immigrant visa, a visa officer may issue an
immigrant visa to him and his accompanying dependants if
(a) he and his dependants, whether accompanying depend
ants or not, meet the requirements of the Act and these
Regulations;
(b) the sponsor
(i) has given a written undertaking to the Minister to
make provision for lodging, care and maintenance for the
member of the family class and his accompanying depend
ants .. ,
Counsel for the applicants stated that there is a
substantial practice in the Department of process
ing applications for permanent residence made
within Canada that are accompanied by a sponsor
ship application made by a Canadian citizen of the
family class. He cited the following four decisions
of the Immigration Appeal Board:
1. Gachinga v. Minister of Employment and Immigration,
decided October 2, 1978.
2. Athwal v. Minister of Employment and Immigration, decid
ed December 7, 1978.
3. Dawson v. Minister of Employment and Immigration,
decided January 18, 1979.
4. Tremblay-Singh v. Minister of Employment and Immigra
tion, decided February 13, 1979.
The Immigration Act, 1976 came into force on
April 10, 1978. All four of these decisions were
made subsequent to that date. However, the spon
sorship applications were all made in 1976 or 1977
and no doubt had begun to be processed before
April 10, 1978. Prior to April 10, 1978 the rules in
respect of sponsorship were worded differently
than in the present Regulations 4(a) and 6(1)
(quoted supra). During the prior period Regula
tion 31(1) (a) read:
31. (1) Subject to this section, every person residing ir.
Canada who is a Canadian citizen or a person lawfully admit
ted to Canada for permanent residence and has reached the ful:
age of eighteen years is entitled to sponsor for admission tc
Canada for permanent residence any of the following individu
als (hereinafter referred to as a "sponsored dependant"):
(a) the husband or wife of that person;
The change in wording has the result that
whereas, under the former Regulation 31(1) the
sponsor was entitled to sponsor an individual, now.
since April 10, 1978, the sponsor is authorized tc
sponsor the application of the individual. He does
not sponsor the individual.
In view of the fact that in the four cases cited by
counsel, the applications to sponsor were properly
made under the then existing law and were refused
simply on the ground that the sponsored spouse did
not have a valid visa, it is my view that these cases
cannot be regarded as authority for stating that
there is now a substantial practice, under the
present law, to process applications to sponsor the
application for permanent residence of a person
who is in Canada, at least where that person's
application has not been accepted for processing.
Counsel for the respondents referred me to the
decision of the Immigration Appeal Board in Min
ister of Employment and Immigration v. Sleiman,
decided on February 26, 1979. The application to
sponsor in this case had been made on October 20,
1978, over six months after the coming into force
of the Immigration Act, 1976. In that respect the
Sleiman case is on the same footing as the present
case.
In fact what happened in the two cases was, to
all intents and purposes the same down to and
including the sending of a letter by the Depart
ment to the wife who had applied to sponsor her
husband. In both cases the letter refused to process
the application, and for similar reasons.
In the Sleiman case Mrs. Sleiman, on receiving
the letter launched an appeal to the Immigration
Appeal Board, against the decision not to process
her application. The Minister filed with the Board
a notice of motion under Rule 41 of the Immigra
tion Appeal Board Rules, 1978, for an order that
the Board did not have jurisdiction to deal with
such an appeal on the grounds that an appeal by a
sponsor under section 79(2) of the Act can only be
taken where there has been a refusal of an applica
tion for landing, that there had not been a notice
of refusal of an application for landing, that nei
ther the letter to Mrs. Sleiman mentioned supra,
nor a similar letter to Mr. Sleiman, both of which
were dated December 1, 1978, was a notice of
refusal of an application for landing, and that the
Canadian legislation did not permit the consider
ation of an undertaking [by a sponsor] in isolation
from an application for admission, which in
accordance with section 9 of the Immigration Act,
1976, must be made at one of the Canadian Immi
gration offices abroad and assessed by a visa
officer.
The Board found that there had been no refusal
of an application for landing and, therefore, the
Board had no jurisdiction to hear an appeal of the
sponsor on behalf of her husband.
In the present case Mrs. Lawrence, instead of
launching an appeal to the Immigration Appeal
Board, which, on the facts disclosed to date would
probably have failed on the ground that the Board
had no jurisdiction to deal with it, as in the
Sleiman case, brought the present motion.
What the applicants in the present motion want
is a decision by the Department on the admissibili
ty of Donald Wayne Lawrence as a permanent
resident. The letter of December 21, 1979 is not a
direct decision on that matter, but a refusal to give
further consideration to her sponsorship applica
tion until he applies for permanent residence in
Canada at any one of Canada's visa offices
abroad.
Under the former Act, where a sponsor applied
to sponsor a person, not the application of a
person, for permanent residence, the sponsor's
application was considered. In each of the four
cases cited by counsel for the applicants, supra,
this was done. In each case the Department reject
ed the sponsorship application on the ground that
the spouse being sponsored had not obtained and
did not have a visa issued by a visa officer abroad.
In each case an appeal was taken to the Immigra
tion Appeal Board, which held the refusal of the
sponsorship application to be correct in law, but in
the Tremblay-Singh case allowed the appeal
under section 79(2)(b), which authorizes an appeal
by a sponsor on the ground that compassionate or
humanitarian considerations exist that warrant the
granting of special relief. Subsection (3) of section
79 states that the Board may dispose of an appeal
under subsection (2) by allowing it or dismissing
it.
In the present case, in view of the evidence and
admissions of Mr. Lawrence at the inquiry before
the Adjudicator, it may well be that the appli
cant's only real hope of a final decision granting
landing to Mr. Lawrence is by establishing com
passionate or humanitarian grounds of sufficient
weight to justify special relief. From the Adjudica
tor's reasons for issuing a departure notice rather
than a removal order against Mr. Lawrence it is
clear that he was impressed by evidence given
before him relating to such grounds. In my view
this matter should not be overlooked in considering
the sponsor's position.
The affidavit of F. Y. Lau, states, in
paragraph 7:
7. That the applicant (meaning Donald Wayne Lawrence) has
been allowed to submit an application to the Immigration
Office, Winnipeg, as of January 15th, 1980, but that the
application will not be further processed until such time as the
applicant advises the respondents which visa office he wishes
the application form to be sent for further processing. Attached
hereto as Exhibit "B" is a copy of a letter addressed to the
applicant explaining the disposition of the respondents.
The letter referred to as Exhibit "B" reads, in
part:
This refers to the "Application for Permanent Residence"
(Form IMM.8E), you submitted at this office on 15 January
1980.
There is no provision in the Immigration regulations to issue a
visa in Canada. In accordance with Section 9 of the Immigra
tion Act, an application for admission must be made at one of
our offices abroad and assessed by a visa officer.
We are, therefore, unable to give further consideration to your
application until you present yourself for examination at a visa
office abroad. When we are advised that you have done so, we
will forward your application to that office for consideration.
From this letter and affidavit it is clear that the
Department has in its possession an application by
Mr. Lawrence for permanent residence in Canada,
which it refuses to process until he applies for a
visa at a visa office abroad. In my view it is proper
procedure for the Department to take this stand
initially, but it cannot properly decline indefinitely
to take any action in respect of the application. If
the Department learns definitely that the applicant
does not intend to go to a visa office abroad or if a
reasonable time has elapsed without the appli
cant's having advised the Department to which
visa office he wishes his application to be sent, the
proper course is for the Department to refuse the
application on the ground that the applicant has
not a visa as required by section 9(1) of the
Immigration Act, 1976. There are other grounds
in the evidence taken before the Adjudicator on
which, if the Department so wishes, it could refuse
the application. In this case I think it is clear that
Mr. Lawrence has no intention of going to the
United States to apply at a Canadian visa office
for a visa.
In my opinion Mrs. Lawrence is entitled to have
her application to sponsor her husband's applica
tion dealt with. Once the application of Mr. Law-
rence is refused, which on the law would be the
likely decision, her sponsoring application may be
refused, on the ground that, under section 79(1)(b)
he does not meet the requirements of the Act or
the Regulations. One of the requirements of the
Act is the condition that he must apply for and
obtain a visa at a visa office outside Canada.
The Department owes a duty to Mr. Lawrence
to treat him fairly. Having in mind the existence of
compassionate and humanitarian grounds which
might possibly be deemed to justify granting him
landing, that duty means that the Department
should make a decision on his application. Further,
since Mr. Lawrence is obligated under the depar
ture notice issued against him to leave Canada not
later than April 1, 1980, the decision should be
made soon. In fairness it should be made suf
ficiently soon that his rights of appeal and those of
his sponsor will not be thwarted in advance. There
will be an order accordingly.
The applicants are entitled to one set of costs of
this motion.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.