A-1207-82
Minister of Employment and Immigration
(Appellant)
v.
Gloria Frances Robbins (Respondent)
Court of Appeal, Heald, Urie and Mahoney JJ.—
Vancouver, September 26 and 28, 1983.
Immigration — Appeal from Immigration Appeal Board's
decision allowing appeal from Minister's refusal to grant
respondent's husband's landing application — Respondent
Canadian citizen — Board finding no close personal relation
ship between respondent and husband and marriage merely to
further permanent residence application — Visa officer in
India refusing entry visa notwithstanding sponsorship by
Canadian citizen — S. 9(4) Immigration Act, 1976 providing
visa officer "may" issue visa if satisfied visitor meets require
ments of Act and regulations — Regulation 4(a) providing
every Canadian citizen may sponsor spouse — Appeal dis
missed — Unnecessary to determine whether "may" in s. 9(4)
permissive or imperative — Visa officer not having discretion
to refuse visa where valid subsisting marriage — No evidence
of invalidity of marriage — Visa officer not entitled to look
behind marriage to ascertain purpose for which entered into —
Reasoning in Iantsis (falsely called Papatheodorou) v. Papa-
theodorou, [19711 1 O.R. 245 (C.A.) applied — Motive not
affecting validity of marriage — Immigration Act, 1976, S.C.
1976-77, c. 52, s. 9(4) — Interpretation Act, R.S.C. 1970, c.
1-23, ss. 3(1), 28 — Immigration Regulations, 1978, SOR/78-
172, ss. 2(1), 4(a).
CASE JUDICIALLY CONSIDERED
APPLIED:
Iantsis (falsely called Papatheodorou) v. Papatheodorou,
[1971] 1 O.R. 245 (C.A.).
COUNSEL:
C. Roth for appellant.
A. Bhullar for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
appellant.
A. Bhullar, Vancouver, for respondent.
The following are the reasons for judgment
rendered in English by
URIE J.: In this appeal from a decision of the
Immigration Appeal Board ("the Board") the
appellant contends that the majority of the Board
erred in allowing the respondent's appeal to the
Board from the refusal of the Minister to grant the
application for landing made by Harbhajan Singh
Narwal, the husband of the respondent who is a
Canadian citizen.
The majority of the Board found as a fact that
"a close personal relationship does not exist ... the
marriage was entered into by Miss Robbins [the
respondent in this Court] as an accommodation to
her friends for the sole purpose of furthering the
application of Harbhajan Singh Narwal for per
manent residence in Canada, and not for the pur
pose of a reunion in Canada of Harbhajan Singh
[sic] and Gloria Frances Robbins to live together
as man and wife."
The dissenting member concurred in this find
ing, and in our view, there was abundant evidence
to support the finding.
The only issue in this appeal arises from the fact
that when Mr. Narwal applied for an entry visa to
Canada, at New Delhi, India, the visa officer
refused to grant it, notwithstanding that Mr.
Narwal had been sponsored by his spouse in
Canada who, as above-noted, is a Canadian citi
zen. Apparently he did so on the basis that subsec
tion 9(4) of the Immigration Act, 1976 [S.C.
1976-77, c. 52], ("the Act") provided him with the
discretion as to whether or not he would issue a
visa despite Regulation 4(a) of the Immigration
Regulations [Immigration Regulations, 1978,
SOR/78-172] providing for the right of a Canadi-
an citizen to sponsor an application for landing by
his spouse.
Subsection 9(4) and Regulation 4(a) read as
follows:
9. ...
(4) 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), he may issue a visa to that person,
for the purpose of identifying the holder thereof as an immi
grant or visitor, as the case may be, who, in the opinion of the
visa officer, meets the requirements of this Act and the regula
tions. [Emphasis is mine.]
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;
"Spouse" is defined in subsection 2(1) of the
Regulations as follows:
2. (1) ...
"spouse", with respect to any person, means the person recog
nized under the laws of any province of Canada as the
husband or wife of that person;
A considerable portion of the argument before
us was devoted to determining whether, in its
context, "may" in subsection 9(4) should be inter
preted as being permissive or imperative. If it is to
be viewed as permissive then, the argument went,
the visa officer was entitled on the facts of this
case to refuse to issue a visa. On the other hand, if
it should be viewed as being imperative, since it
was not otherwise "contrary to this Act or the
regulations", then despite the purpose of the mar
riage being one to bring Mr. Narwal within the
provisions of the Act and Regulations to facilitate
his admission to Canada, the visa must be issued.
It is our opinion that it is unnecessary to indulge
in the exercise of determining whether "may"
should be construed in its context in subsection
9(4) as being permissive or imperative. Ordinarily,
of course, it is accorded its normal meaning and is
permissive, thus providing a discretion in the
person who exercises a power.' Undoubtedly there
is jurisprudence which requires on some occasions
that it be construed as if it read "shall" and thus
imperative in what is required to be done. Assum
ing, without deciding, that in the context of sub
section 9(4) the use of "may" leaves a discretion to
the visa officer to decide whether or not a visa
should issue, it is our view that he is precluded
from exercising that discretion in circumstances
where there exists a valid, subsisting marriage.
From the record before us there is nothing to
indicate that the marriage into which the respond
ent and Mr. Narwal entered was not recognized
under the laws of British Columbia. That being so,
the visa officer was not entitled to look behind that
marriage to ascertain the purpose for which it was
entered. Since Regulation 4(a) (the validity of
which has not been challenged) gives to every
Canadian citizen residing in Canada, who is at
' See Interpretation Act, R.S.C. 1970, c. I-23, subsection
3(1) and section 28.
least eighteen years of age, the right to sponsor an
application for landing of his or her spouse, that
right cannot, in our view, be defeated unless the
marriage is non-existent or invalid. Since there
was not and is not any evidence of invalidity in this
case, then when the visa officer ascertained that
the applicant for landing was not inadmissible to
Canada for any other reason—and that appears to
be the fact of this case—he was obligated to issue
the visa because Mr. Narwal's spouse, the
respondent, had sponsored his application for
landing.
That this is the correct conclusion, it seems to
us, flows from the reasoning of the Ontario Court
of Appeal in Iantsis (falsely called Papa-
theodorou) v. Papatheodorou, [1971] 1 O.R. 245
(C.A.) where Schroeder J.A., in a significantly
different factual situation, had this to say about
the validity of a marriage [at pp. 248-249]:
Marriage is something more than a contract. It creates mutual
rights and obligations as all contracts do, but beyond that it
confers a status. In its essence it may be defined as the
voluntary union for life of one man and one woman to the
exclusion of all others: Hyde v. Hyde and Woodmansee (1866),
L.R. 1 P. & D. 130; Robb v. Robb et al. (1891), 20 O.R. 591.
In Swift v. Kelly (1835), 3 Knapp 257, at p. 293, 12 E.R.
648, the Judicial Committee of the Privy Council expressed the
following opinion as to the effect of fraud and deception upon
the validity of a marriage:
It should seem, indeed, to be the general law of all countries,
as it certainly is of England, that unless there be some
positive provision of statute law, requiring certain things to
be done in a specified manner, no marriage shall be held void
merely upon proof that it had been contracted upon false
representations, and that but for such contrivances, consent
never would have been obtained. Unless the party imposed
upon has been deceived as to the person, and thus has given
no consent at all, there is no degree of deception which can
avail to set aside a contract of marriage knowingly made.
[Emphasis added.]
The decision in Swift v. Kelly, supra, was the basis of the
decision of Sir F. H. Jeune, President of the Courts of Probate,
Divorce and Admiralty in Moss v. Moss (otherwise Archer),
[1897] P. 263 at p. 267, where he exhaustively reviewed
numerous English authorities bearing upon this point and made
it clear that, while English lawyers habitually spoke of mar
riage as a contract, they "have never been misled by an
imperfect anology into regarding it as a mere contract, or into
investing it with all the qualities and conditions of ordinary civil
contracts". He refers to the familiar points of distinction
between them at pp. 267-8. A marked difference between a
commercial contract and a marriage, which is both a civil
contract and a religious vow as stated by Sir William Scott in
Turner v. Meyers, falsely calling herself Turner (1808), 1
Hag. Con. 414, 161 E.R. 600, is that the contracting parties
have no power to dissolve it, and the English authorities
consistently lay down the rule that neither a fraudulent nor an
innocent misrepresentation will of itself affect the validity of a
marriage unless, of course, the misrepresentation induces an
operative mistake, e.g., as to the nature of the ceremony, or
deception as to the identity of one of the persons to the
marriage, as when A is induced to marry B, believing that she
is marrying C.
From the above quotation it can be seen that if
neither a fraudulent nor innocent misrepresenta
tion will affect the validity of a marriage, then, a
fortiori, the motive for which the marriage was
entered into cannot do so. That being so, a visa
officer has no capacity to refuse a visa simply on
the basis of his view as to the bona fides of the
parties to a marriage.
While the possibilities for abuse of the marriage
vows and of the immigration laws by badly moti
vated applicants for landing are self evident, those
possibilities fall to Parliament to rectify. The role
of the Court is simply to interpret the language of
the statute as it stands, not to change it.
The appeal, accordingly, will be dismissed.
HEA LD J.: I concur.
MAHONEY J.: I concur.
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.