T-2590-86
Rohan Gopaul Rajpaul (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
INDEXED AS: RAJPAUL v. CANADA (MINISTER OF EMPLOY
MENT AND IMMIGRATION)
Trial Division, Muldoon J.—Winnipeg, December
2, 1986 and January 23, 1987; Ottawa, April 16,
1987.
Immigration — Applicant sponsoring wife's application for
permanent residence — Application refused on ground mar
riage entered into primarily to gain admission to Canada —
Refusal appealed — Wife denied visa to enter Canada to
testify at appeal — Applicant moving for certiorari quashing
denial of visa — Motion allowed — Purpose of entry to
testify before Board, not basis upon which Visa officer can
lawfully conclude wife not bona fide visitor — Applicant
entitled to fair hearing — Immigration Act, 1976, S.C. 1976-
77, c. 52, ss. 19(3), 65(2)(c) — Immigration Regulations, 1978,
SOR/78-172, s. 4(1)(a),(3) (as am. by SOR/84-140, s. 1).
Bill of rights — Immigration — Applicant's wife denied
permanent residence on ground marriage to gain admission
and no intention of permanent cohabitation — Applicant,
sponsor, appealing refusal — Wife refused visa to enter
Canada to testify at appeal — Refusal to grant visa contrav
ening applicant's right under s. 2(e) to fair hearing according
to principles of fundamental justice — Canadian Bill of
Rights, R.S.C. 1970, Appendix III, s. 2(e).
The applicant sponsored his wife's application for permanent
residence. Visa officials in Guyana refused her application on
the ground that she had entered into marriage with the appli
cant primarily for the purpose of gaining admission into
Canada as a member of the family class, and not with the
intention of residing permanently with her spouse as provided
in subsection 4(3) of the Immigration Regulations, 1978. The
applicant appealed that decision to the Immigration Appeal
Board. The respondent refused to grant the applicant's wife a
visa permitting her to come to Canada to testify at the said
appeal. This is a motion for certiorari quashing the respon
dent's decision not to grant the visa.
The issue is whether the applicant can have a fair hearing in
accordance with the principles of fundamental justice set out in
paragraph 2(e) of the Canadian Bill of Rights if he cannot
secure his wife's attendance before the Board to testify as to the
purpose for which she entered into marriage with him.
Held, the motion should be allowed.
The Court could not base its decision on the Supreme Court
of Canada decisions in Prata and Singh because they represent
ed competing views in the context of the present application. In
the absence of a provision in the Act for a procedure which
might be termed "a visa ad testificandum with pre-determined
deportation in aid", the competing contentions had to be
resolved according to the law as it now stands. This Court's
decisions in Brar, Horbas and Singh were reviewed but found
to be distinguishable from the case at bar.
The answer to the question in the case at bar lay in the
dictum of Mahoney J. in Kahlon v. Canada (Minister of
Employment and Immigration), [1986] 3 F.C. 386 (C.A.). In
that case, the respondent appealed the refusal to grant mem
bers of his family visitors' visas on the ground that they were
not deemed to be bona fide visitors to Canada. Mahoney J.
allowed the Minister's appeal from the granting of mandamus
but observed that the outcome of the appeal might have been
different had the respondent sought certiorari on the basis that
the fact that the family members wanted to come to Canada to
testify was not a ground upon which the visa officer could
lawfully conclude that they were not bona fide visitors. That
was the very purpose for which the applicant seeks certiorari.
The applicant had a substantive right under paragraph 2(e) to
a fair hearing which subsumed his common law right to such a
hearing. The applicant's wife could be authorized to enter
Canada by means of a Minister's permit, a visitor's visa or a
qualified grant of entry pursuant to subsection 19(3) of the
Act.
CASES JUDICIALLY CONSIDERED
DISTINGUISHED:
C. K. Singh (Saran) v. Minister of Employment and
Immigration (1987), 6 F.T.R. 15 (F.C.T.D.); Brar v.
Minister of Employment and Immigration, [1985] 1 F.C.
914 (C.A.); Horbas v. Minister of Employment and
Immigration, [1985] 2 F.C. 359 (T.D.).
CONSIDERED:
Kahlon v. Canada (Minister of Employment and Immi
gration), [1986] 3 F.C. 386 (C.A.); Prata v. Minister of
Employment and Immigration, [1976] 1 S.C.R. 376;
Singh et al. v. Minister of Employment and Immigra
tion, [1985] 1 S.C.R. 177; 17 D.L.R. (4th) 422; (1985),
58 N.R. 1.
REFERRED TO:
Minister of Employment and Immigration v. Robbins,
[1984] 1 F.C. 1104 (C.A.).
COUNSEL:
David Matas for applicant.
Brian H. Hay for respondent.
SOLICITORS:
David Matas, Winnipeg, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for order ren
dered in English by
MULDOON J.: The applicant seeks certiorari
quashing the respondent's decision not to grant a
visitor's visa to Sumintra Ramdas to enter Canada
for the purpose of testifying as a witness upon the
appeal of the applicant, her sponsor, and referring
the matter back for reconsideration.
The applicant earlier applied to sponsor Sumin-
tra Ramdas whom he alleges to be his wife, by
undertaking of assistance dated October 11, 1985.
Sumintra Ramdas applied for permanent residence
on January 16, 1986, but that application was
refused by letter dated March 3, 1986, written by
a Canadian counsellor for immigration in George-
town, Guyana. His specific reason was his opinion
that Sumintra Ramdas had entered into marriage
primarily for the purpose of gaining admission into
Canada as a family class immigrant and not with
the intention of residing permanently with the
other spouse, as contemplated in the Immigra
tion Regulations, 1978 [SOR/78-172 (as am. by
SOR/84-140, s. 1)1, subsection 4(3), which he
recited therein. He also stated items or incidentals
upon which he based his opinion.
The applicant appealed that refusal to the
Immigration Appeal Board (hereinafter: the
Board). The Board issued a summons, at the appli
cant's request, for Sumintra Ramdas (hereinafter:
Ramdas) on October 2, 1986, which was sent to
her by letter four days later. Counsel for the
applicant wrote to the Canadian visa office in
Georgetown on even date, requesting a visa for
Ramdas to permit her to come to Winnipeg in
order to testify at the appeal, and if the request
was refused, requesting written reasons for such
refusal.
The hearing of the appeal proceedings began on
October 14, 1986. The Board declined to invoke
paragraph 65(2)(c) of the Act [Immigration Act,
1976, S.C. 1976-77, c. 52] in order to receive a
telephoned communication from a female voice in
Georgetown which, they said, could not be posi
tively identified as that of Ramdas who, they
assumed, could not be sworn in any event. (No one
mentioned, in so far as the transcript revealed, the
possibility of trying to enlist the help of the, or a,
Canadian counsellor in Georgetown to identify the
person and to administer the oath or affirmation.)
After considering the possibilities of receiving
Ramdas' evidence by affidavit, or even on commis
sion, the Board ultimately adjourned its proceed
ings sine die in order to permit the applicant to
have the time to bring the present motion to this
Court.
The Georgetown visa office informed the
Canada Employment and Immigration Commis
sion in Winnipeg by telex of October 21, 1986, the
former's reasons for not issuing visitors' visas in
this and the companion case. Essentially the offi
cials in Georgetown do not believe that Ramdas
would willingly return to Guyana.
She is inadmissible to Canada under paragraph 19(7)[sicl(h).
She was refused on a family-class application for permanent
residence as it is believed the marriage was entered into
primarily for the purpose of gaining admission to Canada as a
member of a family class. She is currently inadmissible under
paragraph 19(2)(d) of the Act.
This application, and its companion Stuart v.
Canada (Minister of Employment and Immigra
tion) [Federal Court, Trial Division, T-2591-86,
order dated April 14, 1987 not yet reported] in
which the same respective counsel represent the
parties, came on for hearing in Winnipeg, Manito-
ba, on December 2, 1986 and on January 23, 1987,
and there followed sporadic written submissions
from both counsel, until well into February 1987.
Had both counsel been more concise and com
pressed in their submissions this disposition would
have been earlier in its delivery.
The applicant's notice of motion recites the fol
lowing grounds alleged to support the certiorari
which he seeks:
(a) The Immigration Act must be construed and applied so
as to not infringe the right to a fair hearing in accordance with
the principles of fundamental justice as set out in Section 2(e)
of the Canadian Bill of Rights.
(b) Where a foreign spouse is denied admission to Canada as
an immigrant under R 4(3), the denial of either a Minister's
Permit or a Visitor's Visa to the foreign spouse, requested for
the purpose of testifying as a witness at the hearing of the
Immigration Appeal of her sponsor, would infringe the right of
the sponsor to a fair hearing in accordance with the principles
of fundamental justice.
(c) The officer in charge of the Visa office in Georgetown,
Guyana has a delegated power to grant a Minister's Permit to
Sumintra Ramdas to enter Canada for the purpose of testifying
as a witness at the hearing of the Immigration Appeal of her
sponsor, the Applicant, on the assumption that Sumintra
Ramdas is within the inadmissible class A 19(1)(h).
(d) The power to determine whether a person is within Immi
gration Act 19(1)(h) rests with an adjudicator, and not with a
Visa Officer, and
(e) A person who is inadmissible as an immigrant under R 4(3)
and A 19(2)(d) may, nonetheless, be a genuine visitor for the
purpose of testifying as a witness at the hearing of the Immi
gration Appeal of her sponsor and spouse, and therefore admis
sible under A 19(3).
There can be no doubt of the correctness of
ground (a) asserted by the applicant. The hearings
undertaken, and to be undertaken, by the Board
must conform with requirement of paragraph 2(e)
of the Canadian Bill of Rights [R.S.C. 1970,
Appendix III]. So to hold, however, begs the ques
tions: What are the criteria of a fair hearing and
fundamental justice in these circumstances and
whose rights are being determined?
In ground (b) the answers to the above questions
are alleged by the applicant. In the appeal pro
ceedings before the Board, Regulation 4(1)(a) [as
am. by SOR/84-140, s. 1] is clear, and it was so
confirmed by the Appeal Division of this Court in
Minister of Employment and Immigration v.
Robbins, [1984] 1 F.C. 1104, at pages 1106 and
1107, that the right to sponsor an application for
landing made by his spouse is that of the appli
cant. So, it is the determination of this right which
engages paragraph 2(e) of the Bill of Rights. It
appears that the Robbins case precipitated the
promulgation of Regulation 4(3) which removes,
or renders inapplicable, the right conferred in
paragraph 4(1)(a) in regard to sponsoring "a
spouse who entered into the marriage primarily for
the purpose of gaining admission to Canada as a
member of the family class and not with the
intention of residing permanently with the other
spouse". It is evident that what is to be determined
is the right to sponsor an application for landing
made by the applicant's spouse, and not any right
to obtain landing or to exact landing for his
spouse.
But, the applicant's right to sponsor his wife's
application for landing, except in so far as it is
modified, if not removed, by the invocation of
Regulation 4(3), is not questioned. This present
proceeding is not directed to the invocation or
applicability of Regulation 4(3), for that is the
matter to be determined by the Board when its
hearing is continued. What is at issue here is
whether the applicant can have a fair hearing in
accordance with the principles of fundamental jus
tice, if he cannot secure his wife's attendance to
testify before the Board.
The applicant's counsel cites the words of
Madam Justice Wilson in judgment of the
Supreme Court of Canada in Singh et al. v. Min
ister of Employment and Immigration, [1985] 1
S.C.R. 177; 17 D.L.R. (4th) 422; (1985), 58 N.R.
1 (at pages 213-214 S.C.R.; 465 D.L.R.; 63 N.R.)
thus:
I should note, however, that even if hearings based on written
submissions are consistent with the principles of fundamental
justice for some purposes, they will not be satisfactory for all
purposes. In particular, I am of the view that where a serious
issue of credibility is involved, fundamental justice requires that
credibility be determined on the basis of an oral hearing.
Appellate courts are well aware of the inherent weakness of
written transcripts where questions of credibility are at stake
and thus are extremely loath to review the findings of tribunals
which have had the benefit of hearing the testimony of wit
nesses in person: see Stein v. The Ship "Kathy K", [19761 2
S.C.R. 802, at pp. 806-808 (per Ritchie J.). I find it difficult to
conceive of a situation in which compliance with fundamental
justice could be achieved by a tribunal making significant
findings of credibility solely on the basis of written submissions.
As is correctly noted by the applicant's counsel,
the determination of the applicant's right before
the Board indubitably turns on his and his wife's
credibility—especially hers—as to the purpose for
which she entered into the asserted marriage with
him.
Counsel for the respondent, also correctly, notes
that Madam Justice Wilson's observation was
made in the context of a proceeding in which the
applicants there were already in Canada and
claiming the status of Convention refugees, a very
different matter from the one at bar. He also
points out what Wilson J. wrote in the Singh
judgment (at pages 189 S.C.R.; 446 D.L.R.; 33
N.R.) as a correct statement of the law:
The appellants make no attempt to assert a constitutional
right to enter and remain in Canada analogous to the right
accorded to Canadian citizens by s. 6(1) of the Charter.
Equally, at common law an alien has no right to enter or
remain in Canada except by leave of the Crown: Prata v.
Minister of Manpower and Immigration, [1976] 1 S.C.R. 376.
As Martland J. expressed the law in Prata at p. 380 "The right
of aliens to enter and remain in Canada is governed by the
Immigration Act" and s. 5(1) states that "No person, other
than a person described in section 4, has a right to come into or
remain in Canada".
In the Singh case, the Supreme Court came to a
unanimous decision, but divided equally about
whether to base that conclusion on the Canadian
Charter of Rights and Freedoms [being Part I of
the Constitution Act, 1982, Schedule B, Canada
Act 1982, 1982, c. 11 (U.K.)] or on the Canadian
Bill of Rights. Mr. Justice Beetz wrote for the
other numerically equal faction who based their
judgment on the Bill of Rights. He wrote (at pages
228 S.C.R.; 433 D.L.R.; 12-13 N.R.):
Accordingly, the process of determining and redetermining
appellants' refugee claims involves the determination of rights
and obligations for which the appellants have, under s. 2(e) of
the Canadian Bill of Rights, the right to a fair hearing in
accordance with the principles of fundamental justice. It fol
lows also that this case is distinguishable from cases where a
mere privilege was refused or revoked, such as Prata v. Minis
ter of Manpower and Immigration, [1976] 1 S.C.R. 376, and
Mitchell v. The Queen, [1976] 2 S.C.R. 570. [No emphasis in
original text.]
Beetz J. also noted in the Singh case, (at pages
229 S.C.R.; 434 D.L.R.; 14 N.R.):
I do not wish to suggest that the principles of fundamental
justice will impose an oral hearing in all cases. In Attorney
General of Canada v. Inuit Tapirisat of Canada, [1980] 2
S.C.R. 735, at p. 747, Estey J. speaking for the Court quoted
Tucker L.J. in Russell v. Duke of Norfolk, [ 1949] 1 All E.R.
109 (C.A.), at p. 118:
The requirements of natural justice must depend on the
circumstances of the case, the nature of the inquiry, the rules
under which the tribunal is acting, the subject-matter that is
being dealt with, and so forth.
The most important factors in determining the procedural
content of fundamental justice in a given case are the nature of
the legal rights at issue and the severity of the consequences to
the individuals concerned.
The passage immediately above quoted, albeit
from the context of refugee claims, and the state
ment of law expressed in the Prata [Prata v.
Minister of Employment and Immigration, [1976]
1 S.C.R. 376] case represent diametrically com
peting views in the context of this present applica
tion. In the absence of any provision in the Act for
an instrument or procedure which one might call
"a visa ad testificandum with pre-determined
deportation in aid", the competing contentions
must be resolved according to the law as it actually
stands.
In the case of C. K. Singh (Saran) v. Minister of
Employment and Immigration (1987), 6 F.T.R.
15, a decision in July 1986 by Mr. Justice Cullen
of this Court, a wife sought to quash the Minister's
decision not to grant the husband consent to enter
Canada for the purpose of testifying as a witness
before the Board. There were highly similar cir
cumstances of law, but very different factual cir
cumstances. Cullen J. ended his written reasons
with this passage about the husband [at page 22]:
Thus he pretended to be a bona fide non-immigrant, he
posted a bond on condition he appear for an inquiry and failed
to appear. He worked illegally, secured a social insurance card
under the name of Raja Gill and when arrested, held himself
out to be Raja Gill and had used this name to avoid detection.
He was convicted and sentenced. He lied outright about wheth
er he had been refused admission to or deported from Canada.
Reasons can be inferred. The relief sought is a discretionary
one. I can find no basis for exercising that discretion in favour
of the applicant.
The application is dismissed with costs to the respondent.
There is no such litany of complaints against the
applicant's wife here.
In the case of Brar v. Minister of Employment
and Immigration, [1985] 1 F.C. 914 (C.A.), cited
for the respondent, the applicant there was ineli
gible to be a sponsor, and for that and other
reasons, her application was rejected. However, as
to the application of paragraph 2(e) of the Bill of
Rights, the focus was upon the applicant who was
not entitled to maintain an appeal to the Board
because she did not meet the requirements of the
Regulations. She had sought to appeal the refusal
by an immigration officer for landing of her par
ents and siblings. Mr. Justice Stone who wrote the
decision of the Appeal Division of this Court,
reasoned (at pages 921-922) thus:
Rather, the decision of August 10, 1983 appears to have been
made on the basis that the members of the family class who
were the subjects of the application for landing did "not meet
the requirements of this Act or the regulations" as provided in
paragraph 79(1)(b) of the Act. Accordingly, it is my view that
even though the applicant had an undeniable personal interest
in the outcome of the application for landing, the refusal to
approve that application did not, strictly speaking, involve her
rights as sponsor. There was not, therefore, a "determination of
(her) rights" within the meaning of paragraph 2(e) of the
Canadian Bill of Rights so as to entitle her to a fair hearing by
way of appeal.
The Brar decision was followed by Mr. Justice
Strayer, of this Court in Horbas v. Minister of
Employment and Immigration, [1985] 2 F.C. 359
(T.D.). Again there is a different focus from that
in the case at bar. Strayer J. is recorded (at page
363) thus:
First, it should be noted that the decision in question relates to
the eligibility of the non-Canadian spouse in this case, not that
of the sponsor. Therefore it is only her interests which are in
issue. See Brar .... I do not believe that paragraph 2(e) of the
Canadian Bill of Rights covers her situation.
In the present case the sponsor urges that he is
denied a fair hearing on his appeal because,
although he is apparently ready, able and willing
to bring a witness, his non-Canadian spouse, to
testify on a matter of quintessential credibility
before the Board, and for that purpose only, the
respondent is blocking his right to a fair hearing.
The subject-matter of his appeal is patently seri
ous, and its outcome will depend upon the Board's
assessment of his spouse's credibility on the issue
of her primary purpose in entering into the mar
riage in contemplation of Regulation 4(3).
By contrast with the Brar and Horbas cases,
there is the judgment of the Federal Court of
Appeal in Kahlon v. Canada (Minister of
Employment and Immigration), [1986] 3 F.C.
386. There, the respondent had sponsored the
admission to Canada of his parents and his sister.
A visa officer abroad determined that their admis
sion had to be refused. The respondent, like the
applicant herein, appealed that refusal to the
Board, and he sought visitors' visas for his family
to permit them to testify before the Board. Such
visas were refused on the ground that the family
members were "not deemed to be bona fide visi
tors to Canada". The decision was rendered by the
same division of the Court of Appeal which gave
judgment in the Brar case. Writing for that divi
sion was Mr. Justice Mahoney who allowed the
Minister's appeal from the granting of mandamus
([1985] 2 F.C. 124) by the Trial Judge. However
Mahoney J. expressed the following observations
for the unanimous Court (at page 387):
If the respondent had sought and obtained certiorari quash
ing the refusal of visitors' visas and referring the matter back
for reconsideration, on the basis that the fact that they wanted
to come to Canada to testify before the Board was not a basis
upon which the visa officer could lawfully conclude that they
were not bona fide visitors, the outcome of this appeal might
well be very different.
That is precisely the focus of the case at bar. Here
the applicant seeks certiorari for that very pur
pose. On the basis of the proper application of
paragraph 2(e) of the Canadian Bill of Rights to
the applicant's right to a fair hearing on appeal to
the Board for a determination of his rights, he is
entitled to obtain certiorari. The sponsor has a
substantive right under paragraph 2(e) to a fair
hearing which subsumes his common law right to
such a hearing. The applicant should not be denied
the opportunity to present crucial evidence and
testimony to the Board. Such a purpose could be
served by means of a Minister's permit, a visitor's
visa, or a qualified grant of entry pursuant to
subsection 19(3) of the Act.
The applicant's counsel noted that section 104
of the Act provides for detention for appearance at
an inquiry. He said that the non-Canadian spouses
in this case and in the Stuart case (T-2591-86)
would submit to such detention even though, he
asserted there is no danger they would disappear in
Canada. This possibility appears to be the main
concern of the respondent. Since the spouses, by
their counsel, express willingness to submit to such
detention, it will be a condition of this discretion
ary remedy of certiorari in this instance, to be
invoked at the respondent's option.
The applicant may have his costs of and inciden
tal to this application to be paid by the respondent.
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.