Date: 20021001
Docket: IMM-3059-01
Neutral citation: 2002 FCT 1026
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Applicant,
- and -
LIU ZHOU XU,
Respondent.
[1] The question to be determined is whether the respondent is a permanent resident of Canada for purposes of subsection 70(1) of the Immigration Act, R.S.C. 1985, c. I-2, (the Act).
[2] The Minister of Citizenship and Immigration (the Minister) seeks judicial review of the decision of the Immigration Appeal Division of the Immigration and Refugee Board (the IAD) dated June 7, 2001, which allowed the respondent's appeal from the decision of an Adjudicator. The Adjudicator determined that Mr. Xu was not a permanent resident and issued a deportation order against him. The IAD determined that he was a permanent resident and quashed the deportation order.
[3] The Minister can remove Mr. Xu from Canada regardless of the answer to the question. However, if the answer is yes, he can be removed only after the initiation of the removal proceedings under subsection 27(1) of the Act applicable to permanent residents, and therefore subject to the appeal provisions of section 70.
The Impugned Decision
[4] The IAD concluded that Mr. Xu was granted lawful permission to establish permanent residence in Canada and is therefore a permanent resident. It listed a number of factors in support of its conclusion. It is useful to set out the relevant passages from the decision with respect to those factors.
First, the appellant was given a genuine visa and record of landing - genuine in the sense that it was not a forgery. It was a legitimate, authentic visa and record of landing supplied by the immigration department.
Second, the visa and record of landing was signed by a duly appointed immigration officer.
Third, the visa and record of landing was filled out with the knowledge and assistance of officials in the immigration department. . . . Thus this is a case in which the immigrant visa and record of landing were signed by an immigration officer and given to the appellant with the full knowledge and approval of officials in the immigration department. It is not a case of a rogue officer acting on his or her own and without knowledge and approval of senior officials within the department.
Fourth, the immigrant visa and record of landing were given to the appellant in response to his application for permanent residence. Where an application for permanent residence in Canada is received, immigration officials have a duty to respond to that application by approving it or by rejecting it. In this case, the application was certainly never refused. It was responded to by providing the appellant with a document which immigration officials knew would allow him to come to Canada. . . .
Fifth, and with respect to the adjudicator who found differently, in my view it is clear from the evidence that officials involved in this operation fully expected the appellant to use the visa and record of landing to come to Canada. Officer Gougeon testified that a security check was run on the appellant to make sure that he did not have a criminal record. . . . Thus not only did immigration officials expect the appellant to use the document issued in response to his application for permanent residence to come to Canada, they also conducted some assessment as to desirability of having him here.
Once the operation against Shellton was completed in November 1996, no attempt was made by immigration officials to contact the appellant with a view to discussing his status or to initiate removal proceedings against him. The first indication that immigration officials regarded the appellant's status in Canada as irregular came in 1998 when an alert was placed on the immigration database indicating that the appellant was in possession of "an improperly obtained IMM 1000".
It is important to bear in mind that section 27(1)(e) contemplates the grant of landing not only to persons who obtained that status by misrepresentation of a material fact, but also to persons who obtained it by reason of "an improperly obtained . . . visa or other document". I am of the view that this wording is broad enough to encompass a situation in which an immigration officer has issued a visa in a manner which does not conform with the strict requirements of the Act or Regulations. In this case, because the immigration officer knowingly filled out improper information on the applicant's visa, the appellant had an "improperly obtained" visa and record of landing. Improper action on the part of an immigration official is not determinative of the question of whether lawful permission to establish permanent residence was given. Whether or not such permission can be said to have been given will depend on a close scrutiny of the circumstances of the particular case. In my opinion this interpretation accords with the meaning given to "lawful permission" in Seneca and the cases which followed it which require only a grant of "ostensible permission by the appropriate authority".
I am cognizant of the respondent's argument that the appellant is not a permanent resident because the scheme which the Act sets out for obtaining permanent residence in Canada, set out in sections 9 and 14, has not been followed. Those provisions require a prospective immigrant to apply for and obtain an immigrant visa before arriving at a Canadian port of entry. Once at a port of entry the immigrant shall be granted landing if an immigration officer is satisfied that it would not be contrary to the Act and Regulations to do so. In this case the appellant was not granted landing by an immigration officer at the port of entry. He was allowed to come into Canada as a returning resident.
In response to this argument I would make the following two points. First, as I have indicated above, I am of the view that section 27(1)(e), and the jurisprudence which it has given rise to, allow for the grant of landing in situations where there has not been strict compliance with the requirements of the Act or Regulations. Second, it is my opinion that while section 14(2) describes the usual way in which immigrants are granted landing, that is lawful permission to establish permanent residence in Canada, it is not the only way in which landing can be obtained. Section 9(1) of the Act allows for exceptions to the requirement that an immigrant obtain a visa before appearing at a port of entry. In my view lawful permission to establish permanent residence in Canada was given to the appellant when immigration officials responded to his application for permanent residence in Canada, not by refusing it, but by giving him an immigrant visa and record of landing, albeit improperly filled out, which they knew the appellant would use to come to Canada, which they knew would prevent an immigration officer at the port of entry from examining the appellant as a new immigrant, and after having satisfied themselves that he did not have a criminal record. There is nothing in the Act which prevents immigration officials from granting lawful permission to establish permanent residence in Canada to an individual who is outside of Canada and has not yet arrived at a port of entry. Indeed in M.E.I. v. Selby [1981] 1 F.C. 273], the Federal Court of Appeal specifically indicated that landing could be given to a person who had not as yet arrived in Canada. . . .
The following facts in this case lead me to conclude that the appellant was granted lawful permission to establish permanent residence in Canada and is therefore a permanent resident. He made an application for permanent residence. His application was not refused. In response to his application immigration officials issued him a genuine immigrant visa and record of landing, albeit one which contained false information. The immigration officer who signed that document did so with the knowledge and approval of other officials in the immigration department. Immigration officials expected the appellant to use that document to come to Canada and knew that upon arrival, port of entry officials would not examine him as an immigrant but would allow him to come into Canada. In light of the wording of section 27(1)(e) and of the caselaw which interprets it, the fact that the immigration officer who signed the appellant's immigrant visa and record of landing knew that it contained false information does not mean that there was no grant of lawful permission to establish permanent residence in Canada.
Factual Background
[5] Mr. Xu, a Chinese citizen and medical doctor, started practising medicine in 1983. In 1992 he became the director of emergency at a Chinese hospital. He held that position until 1994 when, under the direction of new administration, he lost his directorship as a result of the amalgamation of the emergency and internal medicine departments. Although he continued working at the hospital, he found the "demotion" embarrassing and resolved to leave China. In 1995 he applied, unsuccessfully, for a student visitor visa. He then decided to apply for a Canadian immigrant visa and conducted research regarding professional assistance. He discovered various immigration agencies in Shenzhen (his city of origin) with widely divergent fees. He chose to retain Shellton Worldwide Immigration Services (Shellton) because he had heard of its reputation for speedy migration and, because its fees were higher, Mr. Xu took this as an indication that its standard of service would be higher.
[6] In January or February, 1996, Mr. Xu went to the Shellton office in Shenzhen to discuss the processing of an application for his wife and him to emigrate to Canada. He agreed to a fee of $15,000. He returned to the Shellton office two or three weeks later to complete and sign documents relative to the application. One or two weeks later, he paid a retainer of $5,000. Subsequently, Mr. Xu was informed that, because of his unsuccessful application for a student visa, the obtaining of an immigrant visa would be more difficult. Consequently, a larger fee would be required. An agreement was reached whereby Mr. Xu agreed to pay $25,000 for his migration and a further $1,000 for his wife. In June or July, 1996, Shellton personnel further informed Mr. Xu that he would need a new passport. When he expressed reluctance, a Shellton employee poured tea on Mr. Xu's passport and damaged it to the extent that he was obliged to obtain a new one. After obtaining a replacement passport, Mr. Xu contacted Shellton and arranged an appointment to meet with Mr. Kent Lim at a hotel in Guangzhou City.
[7] During this time frame the RCMP were involved in an undercover operation regarding Shellton. Kent and Peter Lim, owners of Shellton, had made it known to a Toronto undercover police officer that they, for a price, wanted to solicit a cooperative immigration officer to process their clients' applications for permanent residence quickly and successfully. RCMP Constable Frank Gougeon was assigned to the investigation. The Minister personally designated Constable Gougeon an immigration officer under subsection 109(2) of the Act and he was issued a badge and identification card. His designation was backdated to indicate that he had been an immigration officer for a longer period of time. The designation contained no restrictions.
[8] On February 22, 1996, Constable Gougeon, presenting himself as a senior immigration officer from Ottawa, met the Lims in a Toronto restaurant. Over a period of 8 months, there were several further meetings relating to the provision of documents to facilitate Shellton's clients' access to Canada. The meetings resulted in an arrangement whereby, in exchange for $10,000 U.S., Constable Gougeon would provide the Lims with an immigrant visa, a record of landing and a verification of landing entry in the Department of Citizenship and Immigration (the department) computer data base. He also agreed to provide visitor and student visas. On May 31, 1996, Constable Gougeon received ten applications from Peter Lim. Mr. Xu's application was among them. Constable Gougeon delivered the applications to his superior. On June 14th the department provided the RCMP with 8 Canadian immigrant visa/landing records. The information in the landing record was completed by the RCMP following instruction from the department. The data base entries were inputted by an immigration officer in the department's intelligence section. On June 15th Constable Gougeon received the visas and records of landing, signed them and provided them to the Lims. Prior to the arrest of the Lims on November 14, 1996, Constable Gougeon sold documents on three separate occasions. After the arrest, Constable Gougeon ceased being a designated immigration officer. He was transferred to the drug section. The Lims were charged with bribing an official, fraud, and conspiracy to bribe an official and to commit fraud. Guilty pleas were entered and the matter did not proceed to trial.
[9] Constable Gougeon testified that he was told by the Lims that the Shellton clients were not aware that their visas were anything but legitimate. He also testified that there was a concern about whether applicants would be inadmissible. To this end, background checks were completed on Shellton clients. The Lims did not want clients with criminal records coming to Canada because this would jeopardize their operation. The medical examinations were included in the application packages. The advantage to the Lims lay in being able to obtain the visas quickly, not in being able to bring in unqualified applicants.
[10] Returning to Mr. Xu, he, passport in hand, met with Kent Lim in July or August, 1996. Mr. Lim showed the respondent the record of landing provided by Constable Gougeon. Mr. Xu expressed concern regarding the document since it included a signature purporting to be his but was not. By way of explanation, Mr. Lim informed him that Chinese residents require an exit visa. To circumvent the requirement, Shellton had obtained the landing record characterizing him as a Canadian resident landed on June 10, 1996. He would not be able to get an exit visa since the Canadian visa and landing record were issued from Hong Kong and the Chinese would issue an exit visa only if the Canadian record was granted by the Canadian Embassy in Beijing. Mr. Xu was assured that this had been done in cooperation with Canadian officials in Hong Kong and that he was to enter Canada as a returning resident. Mr. Xu's concerns were not allayed and he requested a return of his retainer whereupon Mr. Lim reminded him that if he did not accept this he would not be able to go to Canada. Mr. Xu was not convinced of the authenticity of the landing record and refused to pay the balance of the fee.
[11] Over the next few weeks, Mr. Xu and Shellton representatives argued about the document. Eventually, Mr. Xu, still skeptical, agreed that he would travel to Canada, but only if he was admitted, would he pay the balance of the fee. He doubted that the Lims would risk permitting him to travel to Canada, prior to paying the remainder of the fee, if the document was not legitimate, and felt that if he was permitted entry and able to establish residence in Canada that the document was indeed genuine. His evidence was that he believed that if the document was false he would be stopped at the border upon entry. Shellton arranged for a staff member to travel with Mr. Xu. They arrived in Canada on October 8, 1996 and Mr. Xu, upon presentation of the document, was granted access. Notwithstanding his successful entry, he withheld payment to Shellton until he had obtained his driver's licence, social insurance card and Ontario health insurance. This provided further confirmation of the legitimacy of the document as Mr. Xu believed that, were it otherwise, it would show up on the government computer. He paid the balance of the fee.
[12] Shortly after the arrests, Mr. Xu read in the Chinese press about the collapse of the Shellton agency. His fear regarding the legitimacy of his status was immediately revived but upon reflection he felt that his application had contained truthful information regarding his name, age and occupation. The news article indicated that Shellton was providing false personal information such as educational records, personal background and birth certificates. Since Mr. Xu had provided his own documents to Shellton, there was no reason to falsify his records. He felt that if something were wrong he would be contacted; he was not. His name was listed in the telephone directory. He established a computer business.
[13] Immigration officer Carol Boulianne was one of the officers assigned to go through the 77 boxes of seized Shellton records. She started on January 13, 1997. Notations were made regarding suspect case records and information in this regard was inputted in the computer data base system. A notation with respect to Mr. Xu appeared in the data base on January 28, 1998. Officer Boulianne stated that officials were concerned about the Shellton clients using the documents issued by Constable Gougeon but she was not aware whether any attempts to track the individuals, beyond entry in the data base, had been made.
[14] In March or April, 1998, Mr. Xu initiated a sponsorship application for his wife. He was asked to attend an interview with an immigration officer on June 16, 1998, in Toronto. He was questioned about the circumstances surrounding his admission to Canada. Initially, believing the interview to be about the sponsorship of his wife, he did not tell the truth. Rather, he reiterated what the Lims had told him to say, if asked, since apparently only a few Canadian officers were privy to the information concerning the record of landing. When told the interview was about him and that he would be arrested, he revealed everything. He was arrested under subsection 103(2) of the Act. The Minister then sought a removal order against Mr. Xu on the basis of paragraph 27(2)(g) of the Act. Counsel for Mr. Xu argued that he did not come within paragraph 27(2)(g) and that the Minister was estopped from proceeding. Alternatively, if any proceedings under the Act were appropriate, paragraph 27(1)(e), which refers to permanent residents who have secured landing through misrepresentation, ought to have been invoked.
The Positions of the Parties
The Applicant
[15] The applicant argues that the IAD committed reviewable error in determining that the respondent had been granted "lawful permission to establish permanent residence in Canada" within the meaning of the Act. To be a permanent resident within the meaning of the Act, as defined in subsection 2(2), a person must have been granted landing. Subsection 2(1) defines "landing" as "lawful permission to establish permanent residence in Canada". Here, there was no valid conferral of landed status on the respondent because he was never landed in accordance with the statutory scheme set out in the Act and Regulations. The respondent simply gained possession of a Record of Landing that falsely indicated that he had previously been landed. The IAD's decision that this constituted "lawful permission" is perverse and erroneous in law.
[16] The applicant submits that the Act and the Immigration Regulations, 1978, SOR/78-172 (the Regulations) establish a scheme and specific procedures that an immigrant must follow in order to obtain permanent residence. Admission is at least a two-stage proceeding. Under subsection 9(1) a visa must be applied for and obtained before presenting oneself at a Canadian port of entry. The second stage is presenting oneself to an immigration officer at a port of entry for examination. The applicant refers to Nagra v. Canada (Minister of Citizenship and Immigration), [1996] 1 F.C. 497 (T.D.) as well as sections 5, 6, 9, 11, 12, 14, 23 and 32 of the Act. The respondent was never granted landing in accordance with the scheme prescribed in the Act and Regulations.
[17] The applicant further submits that the record of landing falsely indicates that the respondent was landed at Pearson International Airport on June 10, 1996. The respondent was not in Canada on June 10th and thus could not have been landed as the landing record suggests. Nor was the respondent subsequently granted landing upon his entry to Canada on October 8, 1996, because he entered under the guise of a returning resident and was therefore not subjected to examination. Relying on Canada (Minister of Citizenship and Immigration) v. Nemsila, [1997] 1 F.C. 260 (T.D.), the applicant argues that lawful admission requires compliance with all the requirements of the Act in force at the time the immigrant entered Canada. Since the respondent did not comply with the requirements of the Act or Regulations, he could not be accorded lawful permission.
[18] The applicant distinguishes the cases relied upon by the IAD on the basis that they dealt with the consequences of having obtained permanent residence by way of misrepresentation. Those cases proceeded and were determined on the premise that there had been a valid conferral of landed status, albeit gained through misrepresentation. By contrast, in this situation, no lawful permission had ever been granted to the respondent. The IAD failed to substantively address the central distinction between the line of authorities relied upon and the present situation and erred in applying those authorities. Further, the ostensible rationale provided is perverse and undermines the ultimate finding of the IAD, which, in effect, was that the immigration officer had no statutory authority to provide the record of landing to the respondent. A determination that an administrative act made without legal authority can constitute "lawful permission" is patently unreasonable.
The Respondent
[19] The respondent relies heavily on the findings and conclusions of the IAD and submits that the decision is correct. Paragraph 27(1)(e) of the Act contemplates landing not only to persons who have misrepresented a material fact, but also to persons who obtained landing by reason of an "improperly obtained . . . visa or other document". The IAD correctly concluded that this provision was broad enough to encompass the situation before it.
[20] In response to the argument that Mr. Xu is not a permanent resident because he was not landed at a port of entry under subsection 14(2) of the Act, the respondent submits that the Minister and her officials may grant landing without requiring a port of entry assessment. This is specifically contemplated in subsection 9(1) as well as subsection 114(2) of the Act. With respect to the Minister's reliance on the reasoning in the Nemsila case, the respondent notes that the reasoning was in the context of an analysis of the provisions of the 1952 Immigration Act whereas the respondent was granted permanent residence under the amended provisions of the 1978 Act. In addition, the respondent argues that the reasoning in Nemsila has been superseded, in the context of the current legislation, by subsequent jurisprudence of this Court, specifically: Canada (Minister of Citizenship and Immigration) v. Seneca, [1998]_ 3 F.C. 494 (T.D.) aff'd (1999), 247 N.R. 397 (F.C.A.); Jaber v. Canada (Minister of Citizenship and Immigration), [2000] 1 F.C. 603 (C.A.) and Canada (Minister of Citizenship and Immigration) v. Pownall (1999), 178 F.T.R. 91 aff'd (2001), 271 N.R. 12 (F.C.A.).
[21] Moreover, submits the respondent, the Minister's attempt to distinguish the above-mentioned cases cannot be sustained. The decisions deal with the acquisition of permanent residence in the context of the entire statutory scheme. It was determined that the elements of the removal provisions in paragraph 27(1)(e), to have meaning, must encompass a person who has misrepresented material facts, including one's own identity, in acquiring permanent residence. That includes a person who has obtained a fraudulent or improperly issued visa. Hence, the Minister's remedy is not to proceed against the respondent as if he was never issued the visa and landing record pursuant to paragraph 27(2)(g) of the Act, but to proceed against him as a permanent resident who acquired his status by virtue of an improperly obtained landing visa, which is paragraph 27(1)(e) of the Act.
[22] The respondent argues that the Minister seeks to relitigate an issue already determined on a variation of the facts. It is settled that "lawful" is permission ostensibly given by the appropriate authority regardless of how it was obtained. The Jaber decision recognized the scope of paragraph 27(1)(e) of the Act, which is not limited only to persons who have misrepresented a material fact. It speaks also to persons who have been granted landing by reason of a false or improperly obtained visa or document or who have acquired landing by reason of improper means.
[23] The respondent's alternative argument, that of estoppel, was not dealt with by the IAD. The respondent agreed that it was therefore not open to the Court to entertain the argument on an application for judicial review.
Decision
[24] The statutory provisions, which are at the heart of this matter, are set out below:
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27(1) An immigration officer or a peace officer shall forward a written report to the Deputy Minister setting out the details of any information in the possession of the immigration officer or peace officer indicating that a permanent resident is a person who . . .
(e) was granted landing by reason of possession of a false or improperly obtained passport, visa or other document pertaining to his admission or by reason of any fraudulent or improper means or misrepresentation of any material fact, whether exercised or made by himself or by any other person;
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27(1) L'agent d'immigration ou l'agent de la paix doit faire part au sous-ministre, dans un rapport écrit et circonstancié, de renseignements concernant un résident permanent et indiquant que celui-ci, selon le cas: . . .
e) a obtenu le droit d'établissement soit sur la foi d'un passeport, visa - ou autre document relatif à son admission - faux ou obtenu irrégulièrement, soit par des moyens frauduleux ou irréguliers ou encore par suite d'une fausse indication sur un fait important, même si ces moyens ou déclarations sont le fait d'un tiers;
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| 27(2) An immigration officer or a peace officer shall, unless the person has been arrested pursuant to subsection 103(2) forward a written report to the Deputy Minister setting out the details of any information in the possession of the immigration officer or peace officer indicating that a person in Canada, other than a Canadian citizen or permanent resident, is a person who . . . (g) came into Canada or remains in Canada with a false or improperly obtained passport, visa or other document pertaining to that person's admission or by reason of any fraudulent or improper means or misrepresentation of any material fact, whether exercised or made by himself or by any other person; |
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27(2) L'agent d'immigration ou l'agent de la paix doit, sauf si la personne en cause a été arrêtée en vertu du paragraph 103(2), faire un rapport écrit et circonstancié au sous-ministre de renseignements concernant une personne se trouvant au Canada autrement qu'à titre de citoyen canadian ou de résident permanent et indiquant que celle-ci, selon le cas: g) est entrée au Canada ou y demeure soit sur la foi d'un passeport, visa - ou autre document relatif à son admission - faux ou obtenu irrégulièrement, soit par des moyens frauduleux ou irréguliers ou encore par suite d'une fausse indication sur un fait important, même si ces moyens ou déclarations sont le fait d'un tiers; |
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| 2(1) In this Act,
permanent resident" means a person who (a) has been granted landing, (b) has not become a Canadian citizen, and (c) has not ceased to be a permanent resident pursuant to section 24 or 25.1, and includes a person who has become a Canadian citizen but who has subsequently ceased to be a Canadian citizen under subsection 10(1) of the Citizenship Act, without reference to subsection 10(2) of that Act; |
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2(1) Les définitions suivantes s'appliquent à la présente loi. « résident permanent » Personne qui remplit les conditions suivantes_: a) elle a obtenu le droit d'établissement; b) elle n'a pas acquis la citoyenneté canadienne; c) elle n'a pas perdu son statut conformément à l'article 24 ou 25.1. Est également visée par la définition la personne qui a acquis la citoyenneté canadienne mais l'a perdue conformément au paragraphe 10(1) de la Loi sur la citoyenneté, compte non tenu du paragraphe 10(2) de cette loi. |
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| landing" means lawful permission to establish permanent residence in Canada; |
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« _droit d'établissement_ » , « _établissement_ » ou « _droit de s'établir_ » Autorisation d'établir sa résidence permanente au Canada. |
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[25] The proceeding before the IAD was not a de novo hearing. Rather, the parties filed the record of the inquiry before the adjudicator and written submissions. The Minister took the position that the respondent was not a permanent resident and the IAD therefore lacked jurisdiction to hear and determine the appeal.
[26] The IAD, in arriving at its conclusion, referred to and relied on jurisprudence of the Federal Court. It then provided a number of reasons, summarized at the outset herein, to support its conclusion that the respondent is a permanent resident. It is useful, if not essential, to refer to the jurisprudence relied upon by the IAD.
[27] In Seneca, supra, the respondent Seneca was a citizen of the Phillipines who applied for permanent residence as a member of the family class. His application was sponsored by his Canadian fiancée. He provided false information in his application regarding a prior marriage and his children. The immigrant visa was issued on condition that he marry his fiancée within 90 days of being landed in Canada. He fulfilled the condition but it was later discovered that his previous marriage had not been dissolved and he was convicted of bigamy. After an inquiry, a conditional removal order was issued. When he appealed, the Minister filed a preliminary motion to dismiss for want of jurisdiction. The IAD dismissed the motion and the Minister applied for judicial review arguing that Seneca was not a permanent resident. The crux of the Minister's argument was that the phrase "lawful permission", in the definition of "landing", of necessity, required that the person meet the requirements of the Act and Regulations in obtaining the permission. If not, the person could not be lawfully permitted to establish permanent residence in Canada and therefore could not be a permanent resident for purposes of a right of appeal under subsection 70(1).
[28] Noël J., as he then was, reviewed and analysed the relevant provisions of the Act. He determined that "lawful" permission must be construed, in the final analysis, as meaning "permission ostensibly given by the appropriate authority regardless of how it was obtained". The decision and analysis was upheld by the Federal Court of Appeal and later cited with approval in Jaber, supra. It should be noted, however, that the Minister had proceeded under subsection 27(1), not subsection 27(2), of the Act.
[29] In Jaber, it was determined that the IAD has jurisdiction under subsection 70(1) to entertain the appeal of a person whether the report on the person was made under paragraph 27(1)(e) or paragraph 27(2)(g) of the Act. The question of whether a person is a permanent resident with a right of appeal to the IAD cannot be determined by the provision chosen by the Minister to remove the person. The Minister had proceeded under paragraph 27(1)(e) in Jaber (as in Seneca) and the Minister was successful in arguing before the adjudicator that Mr. Jaber was not a permanent resident because he had been granted landing on the basis of a material misrepresentation (his marital status). The IAD refused to hear his appeal on the ground that it lacked jurisdiction. The Federal Court Trial Division agreed; the Federal Court of Appeal did not. Again, the Minister argued that because Jaber was granted landing by reason of misrepresentations, he never received lawful permission to establish permanent residence in Canada and therefore was not a permanent resident. Hence, the right of appeal under subsection 70(1) could not be invoked because it is restricted to permanent residents. Létourneau J.A., writing for the court, stated:
Furthermore, it is specious to make a distinction for persons described in paragraph 27(1)(e) on the basis of the word "landing", that is a distinction based on the fact that such persons did not have lawful permission to establish permanent residence in Canada, because all persons described in section 27 who may have a deportation order made against them are persons who were subsequently found to be inadmissible because they were unlawfully admitted to Canada, namely in contravention of the Act and regulations. That is ultimately the reason why they are deported.
[30] Lastly, in Pownall, supra, Evans J., as he then was, dealt with a situation where an individual fraudulently misrepresented his identity by holding himself out to be his brother. The Minister argued that since the visitor's visa was issued and landing was in the name of the brother, it could not be said that the individual in question had ever been granted lawful permission to establish permanent residence in Canada. Not being a permanent resident, the individual could not avail himself of the subsection 70(1) appeal provisions. Evans J. queried whether a misrepresentation of identity could be distinguished from misrepresentation of other material facts for the purpose of determining whether the individual was a permanent resident within the meaning of section 70. He determined that it could not and stated:
If it is undesirable as a matter of public policy that those who obtain landed status in Canada by misrepresentations or other fraudulent means, should have a right of appeal to the Board on "equitable grounds" against their removal, the remedy lies with Parliament, not this Court.
[31] The Pownall decision was affirmed by the Federal Court of Appeal.
[32] The IAD considered that this jurisprudence was instructive. I agree. It is, nonetheless, readily apparent that the circumstances here are different than those described in Seneca, Jaber and Pownall. The wording of paragraph 27(1)(e) bears repeating.
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27. (1) An immigration officer or a peace officer shall forward a written report to the Deputy Minister setting out the details of any information in the possession of the immigration officer or peace officer indicating that a permanent resident is a person who . . . (e) was granted landing by reason of possession of a false or improperly obtained passport, visa or other document pertaining to his admission or by reason of any fraudulent or improper means or misrepresentation of any material fact, whether exercised or made by himself or by any other person; |
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27. (1) L'agent d'immigration ou l'agent de la paix doit faire part au sous-ministre, dans un rapport écrit et circonstancié, de renseignements concernant un résident permanent et indiquant que celui-ci, selon le cas_: . . . e) a obtenu le droit d'établissement soit sur la foi d'un passeport, visa - ou autre document relatif à son admission - faux ou obtenu irrégulièrement, soit par des moyens frauduleux ou irréguliers ou encore par suite d'une fausse indication sur un fait important, même si ces moyens ou déclarations sont le fait d'un tiers; |
[33] The following propositions, in my view, are crucial:
(a) The path chosen by the Minister (i.e. paragraph 27(2)(g) rather than paragraph 27(1)(e)) regarding the report to the Deputy Minister is not determinative.
(b) The underlined wording in paragraph 27(1)(e) above is broad enough to encompass a false or improperly obtained visa or record of landing.
(c) A permanent resident, by virtue of the definition in subsection 2(1) of the Act, must have been granted landing.
(d) Landing means lawful permission to establish residence in Canada. "Lawful permission" is not defined in the Act but is defined by this Court as "permission ostensibly given by the appropriate authority regardless of how it was obtained".
(e) The record of landing is a document indicating landing has been granted.
(f) The provisions of section 27 of the Act contemplate contraventions of the Act and Regulations. Its purpose, in part, is to address contraventions.
[34] At the risk of being overly simplistic, while one would not expect the false or improperly obtained documents to emanate from an immigration officer, if they do, they nonetheless fall within the parameters of paragraph 27(1)(e) provided that the individual in question is a permanent resident. The IAD considered the cases that have been discussed herein and determined that Mr. Xu is a permanent resident for purposes of the subsection 70(1) appeal provision. It determined that Mr. Xu had been given ostensible permission by the appropriate authority to establish permanent residence in Canada and thus had been granted landing notwithstanding that the landing was not processed in compliance with the provisions of the Act. The factors to support its conclusion were delineated earlier in these reasons. In view of the above-mentioned propositions, I find no basis for interfering with the decision of the IAD. The Minister can initiate deportation proceedings and the respondent can access the appeal provision of subsection 70(1). The application for judicial review is dismissed
[35] At the conclusion of the hearing, counsel for the applicant suggested a possible question for certification. After hearing from the respondent regarding the uniqueness of this unusual set of facts and the implementation of the new legislation, counsel agreed that the determination of this application did not raise an issue of general application. I do not consider that a serious question of general importance exists. No question is certified.
___________________________________
Judge
Ottawa, Ontario
October 1, 2002
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-3059-01.
STYLE OF CAUSE: MCI v. Li Zhou Xu
DATE OF HEARING: August 14, 2002
PLACE OF HEARING: Toronto, Ontario.
REASONS FOR ORDER BY: The Hon. Madam Justice Layden-Stevenson
DATED: October 1, 2002
APPEARANCES BY: Mr. Matthew Oommen
Department of Justice
The Exchange Tower,
130 King Street West,
Suite 3400, Box 36
Toronto, Ontario
M5X 1K6
For the Applicant
Ms. Barbara Jackman Barrister & Solicitor
596 St. Clair Avenue W., Suite 3,
Toronto, Ontario
M6C 1A6
For the Respondent
SOLICITORS OF RECORD: Deputy Attorney General of Canada
Department of Justice
The Exchange Tower130 King Street West,
Suite 3400, Box 36
Toronto, Ontario
M5X 1K6
For the Applicant
Ms. Barbara Jackman Barrister & Solicitor
596 St. Clair Avenue West, Suite 3
Toronto, Ontario
M6C 1A6
For the Respondent