A-603-83
Ku!dip Singh Mundi (Appellant)
v.
Minister of Employment and Immigration
(Respondent)
Court of Appeal, Thurlow C.J., Mahoney and
Marceau JJ.—Vancouver, October 18; Ottawa,
December 10, 1985.
Immigration — Appeal from Immigration Appeal Board's
dismissal of appeal from refusal of application for landing of
appellant's father and his dependants — Applicant providing
false document to establish son's age — Visa officer finding
applicant acting contrary to s. 9(3) of Act and therefore
member of inadmissible class under s. 19(2)(d) — Admissibili
ty of applicant and other dependants not affected by submis
sion of false document, even if applicant knowing certificate
false — Under s. 79(1)(b) of Act application refused in toto
only if applicant unable to meet requirements — S. 6(1)(a) of
Regulations authority to grant visa to qualified applicant and
qualified dependants — Immigration Act, 1976, S.C. 1976-77,
c. 52, ss. 3(c), 9(3), 19(1),(2) (as am. by S.C. 1980-81-82-83, c.
47, s. 23), 79(1),(2), 84 — Immigration Regulations, 1978,
SOR/78-172, ss. 2(1) (as am. by SOR/84-850, s. 1), 6(1)(a) (as
am. by SOR/83-675, s. 2) — Interpretation Act, R.S.C. 1970,
c. 1-23, s. 26(7).
This is an appeal from a decision of the Immigration Appeal
Board, dismissing an appeal from the refusal of an application
for landing of the appellant's father on behalf of himself, his
wife, son and daughters. The application was refused because
the applicant provided a false document to prove his son's age
contrary to subsection 9(3) of the Immigration Act, 1976. The
visa officer found that the applicant was a member of an
inadmissible class pursuant to paragraph 19(2)(d). The Board
upheld the refusal letter, and held that the withdrawal of the
son from the application did not render the other applicants
eligible to come to Canada. The Board relied on the maxim,
"he who seeks equity must come with clean hands."
Held (Mahoney J. dissenting), the appeal should be allowed.
Per Thurlow C.J. (Marceau J. concurring): The consequence
of the applicant submitting a false document as proof of his
son's age was that the visa officer was not satisfied that the son
was admissible as a dependant. This did not affect the admissi
bility of the applicant and his other dependants, even if the
applicant knew that the certificate was bogus. Moreover, sub
section 19(2) applies only when admissibility is being
determined.
The "member of the family class" referred to in paragraph
79(1 )(b) must be the same "member of the family class",
referred to in the opening words of the subsection, who made
the application. Paragraph 79(1)(b) must refer to the father,
who was the applicant. Only if the applicant cannot meet the
requirements of the Act or Regulations could his application be
refused.
The meaning of subsection 9(3) is clear without reading
"him" and "his" in the plural.
Paragraph 6(1)(a) of the Regulations does not require a visa
officer to issue a visa to the principal applicant, if and only if,
he and all of his dependants meet the requirements of the Act
and Regulations. It is authority to grant a visa to a qualified
applicant and his qualified dependants. It is the applicant's
decision as to whether the partial success of his application is
acceptable.
The maxim "he who seeks equity must come with clean
hands" is irrelevant.
Per Mahoney J. (dissenting): The objective of the Act as
stated in paragraph 3(c) is to recognize the need to facilitate
the reunion in Canada of Canadian citizens with their close
relatives abroad. That militates against an interpretation of
subsection 79(1) which would require an application to be dealt
with without regard to proposed accompanying dependants.
Leaving the option to immigrate to Canada alone to the
applicant would lead to further fragmentation of families. The
applicant was inadmissible under paragraph 19(2)(c) of the
Act.
CASES JUDICIALLY CONSIDERED
REFERRED TO:
Kang v. Minister of Employment and Immigration,
[1981] 2 F.C. 807 (C.A.); Minister of Manpower and
Immigration v. Brooks, [1974] S.C.R. 850.
COUNSEL:
Andrew J. A. McKinley for appellant.
Gordon W. Carscadden for respondent.
SOLICITORS:
Rothe and Company, Vancouver, for appel
lant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
THURLOW C.J.: This is an appeal under section
84 of the Immigration Act, 1976 [S.C. 1976-77, c.
52] from a decision of the Immigration Appeal
Board which dismissed the appellant's appeal
brought under subsection 79(2) of the Act from
the refusal of a visa officer to approve the applica
tion of the appellant's father, Ajmer Singh Mundi,
made on February 23, 1979 for landing of himself,
his wife, a son, Balwinder, and two daughters. The
application had been sponsored by the appellant
who is, and was at the material time, a Canadian
citizen. It was refused under subsection 79(1).
These subsections provide:
79. (1) Where a person has sponsored an application for
landing made by a member of the family class, an immigration
officer or visa officer, as the case may be, may refuse to
approve the application on the grounds that
(a) the person who sponsored the application does not meet
the requirements of the regulations respecting persons who
sponsor applications for landing, or
(b) the member of the family class does not meet the
requirements of this Act or the regulations,
and the person who sponsored the application shall be informed
of the reasons for the refusal.
(2) A Canadian citizen who has sponsored an application for
landing that is refused pursuant to subsection (1) may appeal
to the Board on either or both of the following grounds,
namely,
(a) on any ground of appeal that involves a question of law or
fact, or mixed law and fact; and
(b) on the ground that there exist compassionate or humani
tarian considerations that warrant the granting of special
relief.
The letter by which the appellant was informed
of the reasons for the refusal was dated March 12,
1981. It read in part as follows:
Dear Mr. Mundi:
This refers to your Undertaking of Assistance on behalf of your
parents, two sisters, and brother, who have made an application
for permanent residence in Canada to our office in New Delhi,
India.
Mr. Ajmer Singh Mundi's application has been carefully
reviewed and refused by our office in New Delhi. A letter
outlining the reason for this refusal was sent to your father, and
reads in part as follows:
"Subsection 3 of Section 9 of the Immigration Act, 1976,
requires that every person shall answer truthfully all questions
put to him by a Visa Officer for the purpose of establishing that
his admission would not be contrary to this Act or the
Regulations."
"You have not fulfilled or complied with the requirements of
sub-section 3 of Section 9 of the Immigration Act in that false
documentation has been provided by you, or on your behalf, to
establish the age, identity and family relationship of Balwinder
Singh."
"I regret to have to inform you that you are a member of the
inadmissible class of person described in Paragraph 2(d) of
Section 19 of the Immigration Act, 1976. Your application has
consequently been refused."
The appellant thereupon appealed to the Board.
Some eight months later he filed with the Board a
notice purporting to withdraw his brother, Bal -
winder, from the appeal. The record before the
Court reveals very little of what went on at the
hearing of the appeal. It appears from the "Hear-
ing Information Sheet" that the appellant was
represented by counsel and that he gave evidence.
There is no transcript of the proceedings.
In its reasons the Board cited the refusal letter
and a statutory declaration of the visa officer,
saying:
The applicant appears to belong to a class, whose admission is
prohibited under the terms of section 19(2)(d) of the Immigra
tion Act in that:
The principal applicant, Ajmer Singh, forwarded the following
documents to establish the eligibility for the admission to
Canada of Balwinder Singh:
(a) Letter of search indicating that the birth entry of Bal -
winder Singh, son of Ajmer Singh, is not traceable in the
offical birth record for the year 1958.
(b) School transfer certificate indicating that Balwinder
Singh, son of Ajmer Singh, was born on September 29, 1958,
and that he attended the Government Primary School,
Kaddon, from April 1, 1965 to April 12, 1970.
The family was interviewed by me on February 12, 1980.
Balwinder Singh physically appeared to me to be about 24 or
25 years of age. Since Balwinder Singh's physical appearance
was descrepant [sic] with his date of birth as entered in the
transfer certificate, it was sent for verification on March 26,
1980. The Deputy District Education Officer (Primary), Lud-
hiana, advised us in his letter dated June 2, 1980, that the
document is bogus. Ajmer Singh has not complied with the
requirements of Sub-section 9(3) of the Immigration Act, 1976
in that he provided our office with a fraudulent school certifi
cate to facilitate the admission to Canada of Balwinder Singh.
The Board's decision is in the following passage:
The withdrawal of Balwinder Singh Mundi, for whom a
bogus school leaving certificate was provided, was argued by
the appellant's counsel to clear the other applicants as eligible
to come to Canada. It was also argued that the school leaving
certificate of Balwinder Singh Mundi was not one of the
documents specifically requested by the visa officer under
Section 9(3) of the Immigration Act, 1976:
(3) Every person shall answer truthfully all questions put to
him by a visa officer and shall produce such documentation
as may be required by the visa officer for the purpose of
establishing that his admission would not be contrary to this
Act or the regulations.
Both arguments were rejected as frivolous. School leaving
certificates are asked for as evidence of birthdate and paternity
for all applicants in India. The fact that Balwinder Singh's
appeal was withdrawn did not conclude the responsibility of the
principal applicant concerning the bogus document in spite of
the appellant's evidence that the principal applicant was not
aware that the certificate was bogus. The principal applicant
was responsible for the authenticity of all documents submitted
by him in support of his application.
The refusal letter was found by the Board to be valid in law.
There were arguments in equity based mainly on the fact
that the oldest son had responsibility for his parents in Sikh
culture, that they had adequate income and housing to comfort
ably look after the family. There were arguments in terms of
family unification in spite of the fact that Balwinder Singh
would be left behind in India.
However, the maxim, "he who seeks equity must come with
clean hands" is not satisfied here since a bogus document was
submitted in support of the application. There were not suffi
cient grounds found to extend special relief.
The appeal is dismissed pursuant to Section 79(2)(a) and (b)
of the Immigration Act, 1976.
I agree with the Board that the argument that
the school leaving certificate was not one of the
documents requested by the visa officer under
subsection 9(3) of the Act was and is untenable.
Birth and school certificates were requested by a
letter to the applicant of December 14, 1978. The
document was submitted in response to that
request for documentary proof to establish the
date of birth of Balwinder. I also agree that the
applicant must accept the responsibility for having
submitted a bogus document and bear whatever
legal consequences flow from his having submitted
the document in question as proof of his son's age.
But I do not think it follows from this that the
applicant was a person described in paragraph
19(2)(d)' of the Act, or any other paragraph of
that subsection, and was on that account a
member of an inadmissible class. The consequence,
as I see it, was that the visa officer, who on seeing
Balwinder at the interview on February 12, 1980
had considered him to be 24 or 25 years of age,
' 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 regulations
or any orders or directions lawfully made or given under this
Act or the regulations.
remained unsatisfied that Balwinder was admis
sible as a dependant of the applicant. His admissi
bility as such a dependant depended on his being
under 21 years of age when the application was
made. See the definition of "dependant" in subsec
tion 2(1) of the Immigration Regulations, 1978
[SOR/78-172 (as am. by SOR/84-850, s.1)].
Accordingly, and until satisfactory proof of Bal -
winder's age was produced, a visa for Balwinder
could not be granted.
The failure to satisfy the visa officer with
respect to Balwinder's age could not, however, in
my opinion, affect the admissibility of the appli
cant or his wife and daughters unless the providing
of the bogus certificate respecting Balwinder's age
was relevant to his own admissibility.
In this respect the only provision cited by the
visa officer or by counsel in the course of argument
as rendering the applicant inadmissible as a
member of the class described in paragraph
19(2)(d) was subsection 9(3). It reads:
9....
(3) Every person shall answer truthfully all questions put to
him by a visa officer and shall produce such documentation as
may be required by the visa officer for the purpose of establish
ing that his admission would not be contrary to this Act or the
regulations.
The appellant was said to have failed to comply
with that provision by presenting the bogus certifi
cate. But, even assuming that the applicant knew
when presenting it that the certificate was bogus,
it appears to me that it was relevant only to
Balwinder's admissibility as a dependant of the
applicant and had no bearing whatever on whether
the admission of the applicant himself would be
contrary to the Act or the Regulations. Moreover,
it is at the stage when admissibility is being deter
mined that subsection 19(2) applies. See Kang v.
Minister of Employment and Immigration. 2 I do
not think therefore that the refusal is sustainable
on the basis of the reason expressed in the refusal
letter.
2 [1981] 2 F.C. 807 (C.A.).
But, in my opinion, there is a further reason why
the refusal is invalid. In my view the visa officer
could not properly refuse the application in toto
simply because he did not consider that Balwinder
was a dependant and therefore not entitled to a
visa. The authority of the visa officer at that point
was that conferred by subsection 79(1). The sub
section commences by referring to an application
for landing made "a member of the family class".
This could conceivably apply in the plural if the
application was one made by several persons who
are members of the family class. But it seems to
me that the member or members of the family
class referred to in paragraph (b) of the subsection
must be the same member or members who made
the application and who are referred to in the first
part of the subsection. Here the father, Ajmer
Singh Mundi, made the application and, as I see it,
it is to him that paragraph (b) refers. Only if he
could not meet the requirements of the Act or the
Regulations could his application be refused in
toto. That is not the situation here. Neither the
applicant nor his wife or daughters is shown to be
unable to meet the requirements and no legal basis
for refusing visas to them appears.
Even if it could be said that there were at least
two applications, one by the applicant and one by
Balwinder, it would only be Balwinder's applica
tion that could be refused under the subsection as
on the facts it cannot be said that both the appli
cant and Balwinder do not meet the requirements
of the Act or the Regulations.
The respondent submitted that, in order to give
effect to the statutory intent, the words "him" and
"his" in subsection 9(3) should be read in the
plural so as to apply to answers and documentation
respecting the admissibility of the applicant's
dependants. I do not agree with the submission. It
seems to me that the meaning of the subsection is
clear from the words as used and should not be
extended by reference to some supposed but unex-
pressed intent of Parliament.
It was submitted in the alternative that the false
certificate does relate to the applicant's admissibil
ity since, under paragraph 6(1)(a) [as am. by
SOR/83-675, s. 2] of the Regulations, a visa offi
cer may issue an immigrant visa to the principal
applicant if, and only if, he and all his dependants
meet the requirements of the Act and the
Regulations.
The Regulation reads:
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, are not members of any inadmissible class and
otherwise meet the requirements of the Act and these
Regulations;
I do not read this provision as excluding author
ity to grant a visa to the applicant and any of his
dependants whose admission would not in the visa
officer's opinion be contrary to the Act or the
Regulations. On the contrary, I think it is a clear
authority to grant a visa to a qualified applicant
and to his qualified dependants as well. If some
other family for whom a visa was sought was
considered to be not a dependant, it would be for
the applicant to determine whether or not the
partial success of his application was acceptable
but that, as it seems to me, does not detract from
the authority and the duty of the visa office to
grant a visa to the applicant and to such persons as
the visa officer considers to be eligible as his
dependants. The situation here is not one of Bal -
winder being inadmissible to Canada. Rather, it is
one of his not being admissible as a dependant of
the applicant, because the visa officer was not
satisfied that he was under 21 years of age at the
material time.
It would follow that, as in the view of the visa
officer Balwinder was not a dependant within the
meaning of the definition, paragraph 6(1)(a)
authorized the issue of visas to the others.
Accordingly, in my opinion, the appeal succeeds
and should be allowed. Before parting with the
matter, however, I should add that I would not
wish to be taken as supporting the manner in
which the Board has purported to exercise its
jurisdiction with respect to special relief on com
passionate or humanitarian considerations. It
appears to me that in citing and taking into
account the maxim "he who seeks equity must
come with clean hands" the Board has introduced
and proceeded on what appears to me, at least
prima facie, to be an irrelevant principle.
I would allow the appeal, set aside the decision
of the Immigration Appeal Board and the refusal
of the visa officer and refer the matter to the
Minister for resumption of the review of the appli
cant's application on the basis that the applicant is
not a member of the inadmissible class described
in paragraph 19(2)(d) of the Act.
* * *
The following are the reasons for judgment
rendered in English by
MAHONEY J. (dissenting): I have had the
advantage of reading the reasons for judgment
proposed by the Chief Justice herein and am
unable to agree in the result he proposes. He has
set out the facts fully and has also set out most of
the pertinent provisions of the Act and Regula
tions. I agree that the violation of the requirements
of subsection 9(3) by Ajmer Singh Mundi is not
crucial. Its only significance lay in the failure to,
establish that Balwinder Singh Mundi was not
under 21 when the application was made.
The substantive provisions of the Act and Regu
lations in issue in this appeal, other than subsec
tion 9(3), were all enacted to advance the objective
stated in paragraph 3(c) of the Act.
3. It is hereby declared that Canadian immigration policy
and the rules and regulations made under this Act shall be
designed and administered in such a manner as to promote the
domestic and international interests of Canada recognizing the
need
(c) to facilitate the reunion in Canada of Canadian citizens
and permanent residents with their close relatives from
abroad;
That stated objective, in my respectful opinion,
militates conclusively against a strict literal inter
pretation of subsection 79(1) of the Act so as to
require an application by a member of the family
class to be dealt with as to that applicant alone
without regard to the dependants whom he, in his
application, has proposed should accompany him
to Canada. Such a construction would require that
an immigrant visa be granted to an admissible
sponsored parent notwithstanding that, under sub
section 19(1) of the Act, one or more of that
person's spouse and children under 21 may have to
be refused admission. With respect, the objective
to facilitate the reunion of families in Canada will
not be achieved by affording, for example, a
parent the right to be reunited with an adult
Canadian child, while leaving behind a chronically
ill spouse or infant child. Yet that is the result
proposed; the option to come to Canada as an
immigrant is to be that of the sponsored applicant
alone if he is himself admissible. It can lead only
to further fragmentation of families, not reunion.
In my view, what the visa officer had before him
was Ajmer Singh Mundi's application which
included Balwinder Singh Mundi as a proposed
accompanying dependant. The material definition
of dependant in subsection 2(1) of the Immigra
tion Regulations, 1978 [as am. by SOR/84-850, s.
1], is:
2. (1) ...
"dependant", means,
(a) with respect to a person who is an immigrant,
(ii) any unmarried son or daughter of that person or of the
spouse of that person who is less than
(A) 21 years of age at the time that person applies for
an immigrant visa ....
Ajmer Singh Mundi had failed to establish that a
proposed accompanying dependant included in his
application was in fact a dependant when the
application was made. In that circumstance,
Ajmer Singh Mundi was a person described in
paragraph 19(2)(c) [as am. by S.C. 1980-81-82-
83, c. 47, s. 23] of the Act.
19....
(2) No immigrant ... shall be granted admission if he is a
member of any of the following classes:
(c) other members of a family accompanying a member of
that family who may not be granted admission or who is not
otherwise authorized to come into Canada; ...
The decision was that Ajmer Singh Mundi was not
entitled to be admitted to Canada as an immi
grant. That decision was correct in law, even
though made by the visa officer and upheld by the
Immigration Appeal Board for the wrong reason.
This appeal ought not, in that circumstance,
succeed.
I would dismiss the appeal.
* * *
The following are the reasons for judgment
rendered in English by
MARCEAU J.: I agree with the Chief Justice
that this appeal ought to succeed. To say that the
applicant (the father) had failed to comply with
subsection 9(3), and therefore was inadmissible as
a member of the class described in paragraph
19(2)(d), the immigration officer and the Board
had to broaden the scope of the provision by
reading into the text words that are not there. Of
course, in a legislative enactment, the singular may
include the plural (subsection 26(7) of the Inter
pretation Act [R.S.C. 1970, c. I-23]), but it is not
necessarily so. The intention of Parliament is what
must be given effect to. Subsection 9(3) here
adopts a rule the breach of which attracts a very
severe sanction by reason of paragraph 19(2)(d), a
sanction imposed regardless of whether the false
information was given innocently or not (Minister
of Manpower and Immigration v. Brooks, [ 1974]
S.C.R. 850). In my view, the scope of such a rule
should be strictly and limitatively construed.
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.