A-887-96
Beresford and Glenford McLeod (Appellants)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: McLeodv. Canada (Minister of Citizenship and Immigration) (C.A.)
Court of Appeal, Isaac C.J., Strayer and Linden JJ.A. "Winnipeg, November 4 and 6, 1998.
Citizenship and Immigration — Exclusion and removal — Immigration inquiry process — Appeal from F.C.T.D. decision allowing application for judicial review of I.R.B., Appeal Division decision quashing exclusion orders against appellants on compassionate, humanitarian grounds — Principal visa applicant died after visas issued, but before presentation in Canada for landing — Two-stage immigration process: (1) issuance of visa if visa officer concluding applicant admissible; (2) upon presentation of visa holder at Canadian port of entry, immigration officer, acting under Immigration Regulations, 1978, s. 12(1) determining if admissible i.e. whether visa still sufficient in circumstances to authorize admission — No need to imply visa invalidation through change of circumstances from language of Immigration Act because second-stage process designed to deal with that problem.
This was an appeal from the Trial Division's decision allowing an application for judicial review of the Immigration and Refugee Board, Appeal Division's decision quashing exclusion orders against the appellants on compassionate or humanitarian grounds. The following question was certified: when does a validly issued immigration visa cease to be valid?
The Appeal Division had held that the appellants were in possession of a valid immigrant visa and that therefore it had jurisdiction to entertain the appeals. The two appellants and their mother had obtained immigrant visas in 1992 while in Jamaica. The mother was the principal visa applicant, and the appellants applied as "accompanying dependants". The expiry date of the visas was December 21, 1992. On November 23, 1992 the appellants' mother died. On December 3, 1992 they proceeded to Canada and informed immigration officers of their mother's death. They were denied admission and an inquiry was held. Exclusion orders were issued.
The issue was whether the "accompanying dependants" visas were rendered invalid when the principal visa applicant died after issue of the visas and before presentation in Canada for landing.
Held, the appeal should be allowed.
Although past case law has indicated that such visas should be treated as invalid, difficulties have flowed from that conclusion. Thus it was opportune to reconsider the matter.
The scheme of the Immigration Act is such that the sanction of invalidity is nowhere prescribed and in fact is unnecessary for the exclusion of unqualified immigrants. There are two stages to the immigration process: (1) a visa officer may issue a visa to an applicant if he forms the conclusion that the applicant is admissible; and (2) the visa holder must present himself at a Canadian port of entry, at which time an immigration officer acting under Immigration Regulations, 1978, subsection 12(1) must determine if he is admissible. The applicant is obliged to satisfy the officer in accordance with section 12 that he still meets the requirements of the Act including, whether the visa he holds is still sufficient, in the circumstances, to authorize his admission. Thus, the second-stage process is designed to deal with visa invalidation through change of circumstance. This was also supported by the fact that there could be little or no right of appeal under paragraph 70(2)(b) for visa holders refused admission when presenting themselves at the border if every change of condition after issue of a visa rendered it invalid, as by definition they would not be holders of valid visas.
The certified question was answered as follows: a validly issued visa is not invalidated merely by a change in the circumstances in respect of which it was issued occurring after its issue. The Court could not answer the question in so far as it involved issues not before the Trial Division in the proceeding from which this appeal was brought.
statutes and regulations judicially considered
Immigration Act, R.S.C., 1985, c. I-2, ss. 9, 12(1) (as am. by S.C. 1992, c. 49, s. 7), 19(2)(d), 20(1)(a), 70(2) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18), (3)(c) (as am. idem).
Immigration Regulations, 1978, SOR/78-172, s. 12 (as am. by SOR/83-540, s. 2; 93-44, s. 11).
cases judicially considered
considered:
Canada (Minister of Employment and Immigration) v. De Decaro, [1993] 2 F.C. 408; (1993), 103 D.L.R. (4th) 564; 155 N.R. 129 (C.A.); Canada (Minister of Employment and Immigration) v. Hundal, [1995] 3 F.C. 32; (1995), 96 F.T.R. 306; 30 Imm. L.R. (2d) 52 (T.D.); affd (1996), 36 Imm. L.R. (2d) 153; 206 N.R. 184 (F.C.A.).
referred to:
Malouf v. Canada (Minister of Citizenship and Immigration) (1995), 190 N.R. 230 (F.C.A.).
APPEAL from the Trial Division's decision allowing an application for judicial review of the Immigration and Refugee Board, Appeal Division's decision to quash exclusion orders against the appellants, and holding that their visa was still valid, although the principal visa applicant had died after the issuance of the visa and before presentation in Canada. Appeal allowed.
appearances:
Renate Krause for appellants.
Sharlenne Telles-Langdon for respondent.
solicitors of record:
Legal Aid Manitoba, Winnipeg, for appellants.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment rendered in English by
Strayer J.A.:
FACTS
The two appellants and their mother obtained immigrant visas in 1992 while in Jamaica. The mother was the principal visa applicant and the appellants applied as "accompanying dependants". These visas were to expire on December 21, 1992. On November 23, 1992, their mother died. On December 3, 1992 they proceeded to Canada and informed immigration officers of their mother's death. They were denied admission and an inquiry was held on April 8, 1993 pursuant to a report issued under paragraph 20(1)(a ) of the Immigration Act [R.S.C., 1985, c. I-2]. They were issued exclusion orders based on paragraph 19(2)(d) and section 12 of the Regulations [Immigration Regulations, 1978, SOR/78-172 (as am. by SOR/83-540, s. 2; 93-44, s. 11)].
They appealed to the Appeal Division of the Immigration and Refugee Board pursuant to subsection 70(2) [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18] of the Act, paragraph (b) of which requires that for such an appeal to be entertained the appellant must, at the time the report was issued under paragraph 20(1)(a), have been "in possession of a valid immigrant visa". The Appeal Division held that they were in possession of such visas and thus it had jurisdiction to entertain the appeals. The exclusion orders were quashed on the basis of compassionate or humanitarian considerations as authorized by paragraph 70(3)(c ) [as am. idem].
The Minister launched an application for judicial review of this decision in the Trial Division. On October 24, 1995, Noël J., on consent of both parties, allowed the application and set aside the Appeal Division decision. By agreement he certified this question:
When does a validly issued immigrant visa cease to be valid?
On this appeal the appellants ask for a "declaration that they were in possession of valid immigrant visas" at the time of the report under paragraph 20(1)(a ).
For her part, the Minister asks for an answer to the certified question as follows:
A. Once a visa has been issued it remains valid, subject to four exceptions:
a) when the visa expires;
b) where the visa is revoked or cancelled by a visa officer;
c) where there is a failure to meet a condition of the granting of the visa before the visa is issued; and
d) where there is fraud or a material misrepresentation prior to the issuance of the visa, which would have led to a refusal of the visa if the truth were known by the visa officer, the visa is void ad initio.
ANALYSIS
It should first be observed that while the answer requested by the respondent is a possible response to the certified question as posed, the question itself goes well beyond the issues actually raised by the facts of this case. It is well settled in our jurisprudence that the certified question procedure is not like a reference by the Governor in Council and this Court will only answer such questions to the extent that they relate to issues involved in the judicial review from which an appeal is being taken.1
While we do not have the advantage of any reasons from the Motions Judge, we must assume that the relevant issue was as to whether the Appeal Division was correct in finding jurisdiction based on its view that this particular change of circumstance after issuance of the appellants' visas had not rendered them invalid. Therefore the only aspect of the question we can address is as to whether in facts such as those in this case (i.e. where a principal visa applicant dies after issue of the visas and before her presentation in Canada for landing) the "accompanying dependants" visas of her dependants are thereby rendered invalid.
It should be noted that all parties to this appeal agree that the answer to that question should be in the negative. They agree that there is nothing in the Act to support the view that the visas are rendered invalid by such a change of circumstance. All apparently accept that such a change of circumstances may be a ground for refusal of admission under section 12 of the Regulations but not on the basis of the invalidity of the visa.
Past jurisprudence of this Court, however, has indicated that such visas should be treated as invalid. Indeed, as counsel for the Minister voluntarily affirmed, this had been the position of the Minister in previous cases before this Court but is no longer.
The principal decision in question is that of Canada (Minister of Employment and Immigration) v. De Decaro.2 The facts were very similar to the present case, involving the death of the principal applicant after visas were issued and before remaining members of the family presented themselves at a Canadian port of entry. A report was made under paragraph 20(1)(a), but the adjudicator treated the visas as valid and it was the Minister who appealed to the Appeal Division. As in the present case, the latter found the visas to have been valid at the time of arrival in Canada.
On appeal to this Court a majority (Pratte J.A., Létourneau J.A. concurring) allowed the Minister's appeal. Pratte J.A. first affirmed that the defendants would not be admissible because they no longer met the requirements of section 9 of the Act and section 12 of the Regulations. Therefore the appeal was allowed on this basis. It was only in respect of the remedy to be given that Pratte J.A. indicated that if, as it should have, the Appeal Division issued a removal order it would not have had jurisdiction to entertain a further appeal under paragraph 70(2)(b), allowing consideration of compassionate or humanitarian grounds, because (as the Minister had argued) the defendants were no longer in possession of valid visas when they presented themselves at a port of entry. In his view the visas had become invalid as a result of the intervening death of the principal applicant. Thus the matter need not be remitted to the Appeal Division for consideration of a paragraph 70(2)(b) appeal.
[A.]À l'issue de l'appel devant la présente Cour, la majorité des juges (le juge Pratte avec l'accord du juge Létourneau) ont accueilli l'appel du ministre. Le juge Pratte a d'abord confirmé que les défendeurs ne seraient pas admissibles parce qu'ils ne remplissaient plus les conditions fixées par l'article 9 de la Loi et par l'article 12 du Règlement. L'appel a donc été accueilli pour ces motifs. C'est uniquement quant à la réparation appropriée que le juge Pratte a indiqué que, si la section d'appel avait rendu la décision qu'elle aurait dû rendre, savoir prendre une mesure de renvoi, elle n'aurait pas eu compétence pour entendre un nouvel appel en vertu de l'alinéa 70(2)b), comportant l'examen de raisons d'ordre humanitaire, parce que les défendeurs (comme le prétendait la ministre) n'auraient alors plus été titulaires d'un visa en cours de validité au moment de leur arrivée au port d'entrée. À son avis, les visas étaient devenus invalides en raison du décès du demandeur principal, survenu entre-temps. Il n'était donc pas nécessaire de renvoyer l'affaire à la section d'appel pour qu'elle tranche un appel visé à l'alinéa 70(2)b).
The third member of the panel, Marceau J.A., dissented in part. He agreed that the dependants were no longer admissible and therefore both the adjudicator and the Appeal Division should have so found. However, he was of the view, based on his analysis of the scheme of the Act to be discussed later, that their visas were not invalid at the critical time and therefore the matter should be remitted to the Appeal Division to allow it to entertain a further appeal based on compassionate and humanitarian grounds.
Subsequently, in Canada (Minister of Citizenship and Immigration) v. Hundal,3 Rothstein J. of the Trial Division had to deal with a somewhat similar case where a wife withdrew her sponsorship after her husband's visa was issued and before he arrived in Canada. The Minister relied on the authority of this Court's decision in De Decaro to contend that the visa was invalid and that the Appeal Division lacked jurisdiction under paragraph 70(2)(b). Based on his analysis of the scheme of the Act, also to be referred to later, Rothstein J. felt it justified to narrow the effect of De Decaro so as to invalidate visas only where there were irrevocable changes of circumstances. Death of the principal applicant is irrevocable but withdrawal of sponsorship is not. Therefore he found the Hundal visa to be valid so as to afford jurisdiction to the Appeal Division on an appeal.
This Court affirmed the Trial Division decision on appeal, upholding the validity of the visa. Reasons from the bench included the following:
We are all of the view that this appeal should be dismissed. We are in accord with the analysis by the learned motions judge of the jurisprudence and with his general principle that, subject to the exceptions he identifies, "once a visa has been issued, it remains valid". We also note that the appellant does not object to that analysis.4
It will be noted that at that time the Minister was still in support of the majority decision in De Decaro.
It appears to me that, in the light of the further analysis now available to this Court and the logical difficulties which have appeared to flow from the subsidiary conclusion of the majority in De Decaro that a change of circumstances renders a visa invalid, it is opportune to reconsider the matter.
As both counsel have agreed before us, the scheme of the Act is such that the sanction of invalidity is nowhere prescribed and in fact is unnecessary for the exclusion of unqualified immigrants. Marceau J.A. in his dissent in De Decaro could find no textual support for a visa being rendered invalid by a change of circumstances. Instead, he pointed out that the immigration process is in two stages. First a visa officer may issue a visa to an applicant if he forms the conclusion that the applicant is admissible. Secondly, the visa holder must present himself at a Canadian port of entry, at which time an immigration officer acting under subsection 12(1) [as am. by S.C. 1992, c. 49, s. 7] of the Act must determine if he is admissible. The applicant is obliged, inter alia, to satisfy the officer in accordance with section 12 of the Regulations that he still meets the requirements of the Act including, obviously, whether the visa he holds is still sufficient, in the circumstances then obtaining, to authorize his admission. Thus there is no need to imply from the language of the Act a concept of visa invalidation through change of circumstance because the second-stage process is designed to deal with that problem.
Rothstein J. in Hundal5 built on this analysis as a rationale for narrowing the application of De Decaro. To it he added the observation, based on submissions by the respondent's counsel in that case, that if every change of condition after issue of a visa renders it invalid then there could be little or no right of appeal under paragraph 70(2)(b) for visa holders refused admission when presenting themselves at the border, as by definition they would not be holders of valid visas. To the extent that admissions are refused at ports of entry because of changed circumstances since the issue of a visa, this would appear to be so and further supports the need for reconsideration of the jurisprudence.
CONCLUSION
I have concluded that there is no adequate basis for deducing from the language of the Act a sanction of invalidity based on changes of circumstances after the issue of a visa. The analysis of Marceau J.A. and of Rothstein J. have further led me to conclude that no such sanction need be implied as it is unnecessary to achieve the purposes of the Act.
The appeal should therefore be allowed. In spite of the various remedies sought by counsel the proper and sufficient one is that the consent order of the Trial Division to quash should be set aside and the decision of the Appeal Division affirmed.
With respect to the certified question, the answer should be:
A. A validly issued visa is not invalidated merely by a change in the circumstances in respect of which it was issued occurring after its issue. Otherwise it is not appropriate for the Court to answer this question as it involves issues not before the Trial Division in the proceeding from which this appeal was brought.
Isaac C.J.: I agree.
Linden J.A.: I agree.
1 See e.g. Malouf v. Canada (Minister of Citizenship and Immigration) (1995), 190 N.R. 230 (F.C.A.).
2 [1993] 2 F.C. 408 (C.A.)
3 [1995] 3 F.C. 32 (T.D.).
4 (1996) 36 Imm. L.R. (2d) 153 (F.C.A.), at p. 154.
5 Supra, note 3, at pp. 38-40.