Judgments

Decision Information

Decision Content

Derek D. Martin (Appellant) v.
Minister of Manpower & Immigration (Respond- ent)
Court of Appeal, Thurlow and Pratte JJ., Perrier D.J.—Montreal, P. Q., June 29, 1972.
Immigration—Deportation order—Refusal of Immigration Appeal Board to grant special relief—Appeal from—Wheth- er Board took account of other than compassionate and humanitarian consideration—Findings of fact—Whether grounds for reversal—Immigration Appeal Board Act, R.S.C. 1970, c. I-3, s. 15(1)(b)(ii).
M, a musician and a United States citizen, was married to a Canadian citizen in Montreal in 1965 and lived there with his wife and child until 1967 when he was ordered deported for lack of certain documents required by the Immigration Regulations. His wife and child remained in Canada, and M returned here from time to time. In 1970, he was again ordered deported on the ground of the earlier deportation and lack of consent by the Minister under section 35 of the Immigration Act to his admission to Canada. The Immigra tion Appeal Board on appeal declined to grant M special relief under section 15 of the Immigration Act, stating that it had serious doubts as to his credibility, good faith and sense of responsibility, that his separation from his family was due to the nature of his work and would not be solved by the granting of special relief, and that in any event his wife could sponsor him for entry into Canada under section 31 of the Act.
Held, dismissing Ms appeal, in declining to grant M special relief under section 15(1) of the Immigration Appeal Board Act the Board did not exceed its jurisdiction under subsection (1)(b)(ii) to take account only of compassionate or humanitarian considerations. All the matters considered by the Board were relevant to determine whether compas sionate or humanitarian considerations existed, and although the Court might not agree with the Board's find ings of fact there was insufficient ground for reversing them.
Boulis v. Minister of Manpower & Immigration (which was decided by the Supreme Court of Canada on March 30, 1972), discussed.
APPEAL from Immigration Appeal Board.
M. Riback, Q.C. for appellant. G. R. Leger for respondent.
THURLOW J.—The appellant is a citizen of the United States. He was born in 1938, had a grade 8 education and thereafter earned his living as a musical entertainer. He entered Canada sometime in the year 1964 and in November of the following year was married at Montreal to a Canadian citizen. In 1966 a child of the marriage was born in Canada. In June 1967, when the appellant and his wife and child were living in Montreal, where the wife and child still reside, the appellant and his wife went to Immigration authorities in search of a way by which his presence in Canada might be legiti mized, and some forms were completed but the result was that he was ordered to be deported on the grounds that he was not in possession of a letter of pre-examination and a medical cer tificate as required by the Immigration Regula tions. The appellant did not appeal from the deportation order but, following his deportation, he returned to Canada from time to time and on one of such occasions, early in 1970, he was apprehended by police at Montreal. On Febru- ary 2, 1970, following a special inquiry, a second deportation order was made against him based on the earlier deportation and the lack of the consent of the Minister under section 35 of the Immigration Act to his being admitted to or permitted to remain in Canada. The appellant thereupon appealed to the Immigration Appeal Board which heard his appeal on June 7, 1971, and dismissed it on July 5, 1971. At the same time, the Board declined to grant special relief under section 15 of the Immigration Appeal Board Act and directed that the deportation order be executed as soon as practicable. Writ ten reasons for this judgment were given by the Board on or about August 24, 1971.
Thereafter the appellant was granted leave to appeal to this Court and now appeals, not on the ground that the deportation order was not validly made, but on the ground that the Board erred in declining to grant relief therefrom under section 15(1)(b)(ii) of the Immigration Appeal Board Act. More specifically, the deci sion was attacked on the ground that the Board improperly applied criteria of its own for deter mining whether the appellant should be permit-
ted to remain in Canada instead of or in addi tion to the considerations prescribed by section 15 of the Act and that the Board's findings were erroneous.
Section 15(1) of the Immigration Appeal Board Act provides as follows:
15. (1) Where the Board dismisses an appeal against an order of deportation or makes an order of deportation pursuant to paragraph 14(c), it shall direct that the order be executed as soon as practicable, except that the Board may,
(a) in the case of a person who was a permanent resident at the time of the making of the order of deportation, having regard to all the circumstances of the case, or
(b) in the case of a person who was not a permanent resident at the time of the making of the order of deporta tion, having regard to
(i) the existence of reasonable grounds for believing that if execution of the order is carried out the person concerned will be punished for activities of a political character or will suffer unusual hardship, or
(ii) the existence of compassionate or humanitarian considerations that in the opinion of the Board warrant the granting of special relief,
direct that the execution of the order of deportation be stayed, or quash the order or quash the order and direct the grant or [sic] entry or landing to the person against whom the order was made.
The jurisdiction of the Board under this sec tion has frequently been referred to as its "equitable" jurisdiction, possibly because it is a jurisdiction to relieve the harshness which the strict application of the Immigration Act may occasion in particular cases. To call this juris diction "equitable" is no doubt convenient but the use of that expression should not be allowed to cloud the fact that the powers conferred by section 15 are statutory and are thus governed by the language of the statute itself. There is therefore no necessary resemblance between the principles to be applied under this section and the principles of equity which were devel oped with respect to property rights over a long period of time in courts of equity in England and in this country. Rather what appears to me to be required of the Board is that, within the limits of the powers conferred, it have a look at the broad humanitarian aspects involved in the deportation of the person concerned from this country and determine whether they warrant a
departure from the course which the rules of the Immigration Act would impose.
The precise question posed for the Board is, however, not the same for all cases arising under this section, because the statute itself distinguishes between them. Thus the Board's authority to grant relief in cases concerning permanent residents, which fall within para graph (a) of section 15(1), is to be exercised "having regard to all the circumstances of the case", whereas in cases of persons who are not permanent residents, which fall within para graph (b), the exercise of the Board's authority is dependent upon (1) the existence of reason able grounds for believing that if execution of the order is carried out the person concerned will be punished for activities of a political character or will suffer unusual hardship, or (2) the existence of compassionate or humanitarian considerations that in the opinion of the Board warrant the granting of special relief. It is also to be noted that under (1) only the result to the person to be deported is involved whereas under (2), the scope is not similarly restricted, but may embrace as well compassionate or humanitarian considerations from the point of view of others as well, the test being whether such considerations in the opinion of the Board warrant the granting of special relief. It seems to follow that criteria which may be relevant under section 15(1)(a) will not necessarily be relevant under section 15(1)(b), or vice versa, and that it is necessary to examine each case presented, not on the basis of general consider ations applicable to all cases, but from the point of view of the applicability of the particular provision to particular situations as they arise.
The appellant's case fell for consideration solely under section 15(1)(b)(ii) and, as I view it, posed for the opinion of the Board the ques tion whether the compassionate or humanitarian considerations which were involved with
respect to the appellant, his wife and his child, in enforcing the order at the expense of separat ing the appellant from his wife and son, or of compelling the wife and son to leave Canada in order to reside with him in whatever other country might admit them, warranted the grant ing of special relief. If so, the Board was authorized to grant relief of the kind provided for, which might have been anything from a mere stay of execution to an outright quashing of the deportation order and a grant of entry or landing. It might, for example, in a case such as this, have consisted of a stay for a period suffi cient to enable the appellant to obtain the docu ments the lack of which resulted in his deporta tion in 1967. Thereafter the Board would have had power to review the matter and deal with it under subsections (3) and (4) of section 15.
The Board commenced its discussion with respect to the exercise of its section 15 powers with the following general statement:
As to its equitable jurisdiction under section 15 of the Immigration Appeal Board Act, the Court considers that the special relief, therein provided, is in fact an exception to the Immigration laws and regulations and indeed a privilege which can benefit the appellant by mitigating the rigidity of the law under justifiable circumstances more particularly set forth in section 15. The very nature of section 15 with its extensive powers of suspending the application of the Immigration laws and regulations must be exercised by the Court most judiciously if these laws which were passed by Parliament for a specific purpose are to continue to have force of law.
Among the general criteria that have been considered by the Court as being essential in a judicious exercise of its equitable jurisdiction under section 15 is, on the one hand, the credibility, the good faith and a normally responsible attitude of the appellant and on the other hand the existence of a serious immigration problem with compassionate and humanitarian overtones, an adequate solution of which is not already provided for in the law itself.
The Board then proceeded to find (1) that it entertained serious doubts as to the appellant's credibility; (2) that the appellant's good faith could also be questioned; (3) that the appel lant's attitude in relation to his status in Canada,
and even with regard to his application for his wife's immigrant visa in the United States, could not be considered normally responsible and (4) that the separation of the appellant's family was due not so much to a problem of immigration as to the nature of the appellant's employment and that the granting of special relief was not likely to solve the appellant's and his family's problem. In each case the Board cited excerpts from the evidence in support of its finding. I shall return to these later in these reasons. The Board's conclusion was expressed in the following paragraph:
The Court considers that it would not be justified in this instance to suspend the application of the Immigration laws and regulations in order to grant special relief to the appel lant, particularly since the law provides the means for the appellant to return legally to Canada if he wishes to do so.
From this decision an appeal lies, with leave, to this Court under section 23 of the Immigra tion Appeal Board Act as amended by section 64(3) of the Federal Court Act, but only on a "question of law, including a question of jurisdiction".
In the recent case of Boulis v. Minister of Manpower and Immigration (March 30, 1972, unreported), Abbott J., speaking for the majori ty of the Court, discussed as follows the scope of such an appeal when taken from a decision of the Board under section 15.
I agree with my brother Laskin that this Court has juris diction to entertain such an appeal. Indeed it did so recently in Grillas v. The Minister of Manpower and, Immigration decided on December 20, 1971 (as yet unreported), although the grounds of law urged on that appeal were not the same as those put forward here.
In my opinion however, such an appeal can succeed only if it be shown that the Board (a) has refused to exercise its jurisdiction or (b) failed to exercise the discretion given under s. 15 in accordance with well established legal princi ples. As to those principles, Lord Macmillan speaking for the Judicial Committee said in D. R. Fraser and Co. Ltd. v. Minister of National Revenue, [1949] A.C. 24 at p. 36:
The criteria by which the exercise of a statutory discre tion must be judged have been defined in many authorita-
tive cases, and it is well settled that if the discretion has been exercised bona fide, uninfluenced by irrelevant con siderations and not arbitrarily or illegally, no court is entitled to interfere even if the court, had the discretion been theirs, might have exercised it otherwise.
In the same case, Laskin J., speaking for himself and Pigeon J., said:
Parliament has imposed an onerous as well as sensitive duty on the Board to deal with claims for political asylum and to apply compassionate or humanitarian considerations to claims of lawful entry to Canada. The judicialization of power to grant entry in such cases necessarily involves the Board in difficult questions of assessing evidence, because its judgment on the reasonableness of grounds of belief that a deportee will be punished for political activities or will suffer unusual hardship (the underlining is mine) if the deportation is carried out, involves it in estimating the policies and reactions of foreign governmental authorities in relation to their nationals who claim asylum in Canada when unable to establish a claim to entry under the regular prescriptions. The Parliament of Canada has made it clear, in my opinion, that the granting of asylum should rest not on random or arbitrary discretion under s. 15(1)(b)(î) but rather that a claim to the Board's favourable interference may be realized through evidence upon the relevance and cogency of which the Board is to pronounce as a judicial tribunal. The Board has thus been charged with a responsi bility which has heretofore been an executive one. The right of appeal to this Court is proof enough that the carrying out of this responsibility was not to be unsupervised. At the same time, the Board must be accorded the trust in its careful and fair dealing with the cases that come before it for s. 15(1)(b) relief that its status as an independent court of record demands. Its reasons are not to be read micro scopically; it is enough if they show a grasp of the issues that are raised by s. 15(1)(b) and of the evidence addressed to them, without detailed reference. The record is available as a check on the Board's conclusions.
In the present case, what the Board's reasons appear to me to show is that the Board consid ered the situation (1) from the point of view of whether the appellant was a person who by his conduct in relation to his entry into Canada and the inquiry showed himself to be deserving of special relief (2) from the point of view of whether the granting of special relief would solve the problem of separation of the appellant from his wife and child and (3) from the point of view of whether there were other means available to the appellant for obtaining lawful entry to Canada. It is also apparent that the
Board was aware that compassionate or human itarian considerations arising from the probable effect of the deportation in separating the appellant from his wife and child existed in the situation and that the Board considered the problem from the point of view of the effect of the appellant's deportation on the interests of the wife and child as well as of the appellant.
In my opinion these were all relevant matters for consideration by the Board for the purpose of reaching a conclusion on whether the com passionate or humanitarian considerations exist ing in the situation warranted the granting of special relief and I do not think the Board can be said to have erred in law in taking them into account in reaching its decision.
On the appellant's other submission, that the findings of fact made by the Board with respect to his credibility and good faith are not support able in law, I have had more difficulty. With respect to the doubt expressed as to the appel lant's credibility, I would not have regarded the passages cited by the Board from the evidence at the special inquiry as raising any serious doubt as to the appellant's credibility, particu larly since (1) they consist of but two matters on which the appellant's evidence varied from that of his wife and which appear to be matters of no great significance, (2) there appears to be no reason why it is not possible that it is the wife's version that is erroneous and (3) neither the appellant nor his wife was questioned as to these matters when they gave evidence before the Board. The assessment of the credibility of the witnesses was however eminently a ques tion for the Board and as they heard both the appellant and his wife in the course of the hearing of the appeal, I do not think it can be said that they erred in law in concluding that not all that the appellant said should be accept ed or in doubting or discounting his credibility as a witness. It was for him to satisfy the Board that his circumstances warranted special relief and the doubt they expressed indicated that they were not prepared for that purpose to accept all that he said at its face value. The Board's questioning of the appellant's good faith stands in a similar position. I do not regard it as established that the appellant eluded immi gration officers on more than one occasion by
feigning sleep but it is clear that he did escape the detection of his status on a number of occasions when entering Canada, and on the whole I do not think it can be said that the Board was wrong in law in entertaining such a doubt. Moreover, it appears to me that to chal lenge the Board's doubts on such points because of disagreement with what they cite or say in support of them seems to me to require the Court to go beyond the scope of review open to it as explained in the reasons of Abbott and Laskin JJ., in the Boulis case and to read the Board's reasons "microscopically".
Similar considerations apply as well with respect to the Board's opinion that the problem of separation of the appellant's family was not likely to be solved by the granting of special relief. Again I do not regard the passages cited by the Board as affording support for its opin ion and I do not think I would have reached that opinion on the evidence as a whole had I been called upon to judge the facts. The opinion of the Board, however, is strictly a judgment on facts with respect to the probable result of granting special relief, it indicates only that the Board was not satisfied that that would solve the family separation problem, and I do not think it can be said that on the whole of the evidence this conclusion was one that no rea sonable person, acting judicially, could reach.
It follows that the Board cannot be said to have erred in law and that the appeal fails and should be dismissed.
* * *
PRATTE J.—The appellant is an American citi zen who, while in Montreal in 1965, married a Canadian girl who still resides in Montreal with
their child born in 1966. He appeals from the decision of the Immigration Appeal Board, dated July 5, 1971, which affirmed the deporta tion order made against him on January 2, 1970, and directed that it be executed as soon as practicable.
The appellant does not contend that the Board should have allowed his appeal. He admits having been illegally in Canada in 1970 since he had entered our country without the consent of the Minister after a first deportation order had been made against him in 1967 (Immigration Act, section 35, R.S.C. 1970, c. I-2). The appellant, however, takes exception to the Board's refusal to exercise its exceptional powers under section 15(1) of the Immigration Appeal Board Act, R.S.C. 1970, c. I-3. Under this section, the Board, when it dismisses an appeal against an order of deportation, may nevertheless annul the order or direct that its execution be stayed having regard to "the exist ence of compassionate or humanitarian consid erations that in the opinion of the Board war rant the granting of special relief". The appellant submits that the deportation order will force him to live separate from his wife and child and that, for this reason, the Board should have either annulled it or stayed its execution.
It can no longer be doubted, since the deci sion of the Supreme Court of Canada in Boulis v. The Minister of Manpower and Immigration (March 30, 1972, unreported), that the refusal of the Board to exercise its exceptional power under section 15(1) is a decision from which an appeal lies "on any question of law, including a question of jurisdiction" (Immigration Appeal Board Act, R.S.C. 1970, c. I-3, section 23(1)). One must not forget however that, the Board's power under section 15(1) being a discretionary one, such an appeal could not succeed unless it be shown that the Board failed to exercise its discretion in accordance with the well-estab lished legal principles referred to in the above- mentioned decision of the Supreme Court. I also wish to add that, in my view, it is not enough for such an appeal to succeed that an error of law be found in the reasons for the decision of the Board; it is moreover necessary
(since the appeal is not lodged against the rea sons but against the decision itself) that this error be such that, had it not been made, the decision might have been different.
In this case, the refusal of the Board to annul the deportation order made against the appel lant was based on three considerations. First, the Board entertained doubts as to the appel lant's credibility, good faith and responsibility; second, it found that even if the deportation order were annulled, the appellant, in order to pursue his profession, would still very often have to live away from his family; third, the Board considered that the appellant, in the event of his being deported, could, with the consent of the Minister, re-enter Canada legally provided that he be "sponsored" by his wife (Immigration Regulations, Part I, section 31).
According to the appellant this decision should be reversed on two grounds.
First, he contends that the Board made an error of law when, in order to determine wheth er the deportation order should be annulled, it referred to "criteria" that the law does not empower the, Board to use. This criticism is aimed at this part of the reasons for the deci sion where the Board, after having reached the conclusion that the appeal was to be dismissed, said:
As to its equitable jurisdiction under section 15 of the Immigration Appeal Board Act, the Court considers that the special relief, therein provided, is in fact an exception to the Immigration laws and regulations and indeed a privilege which can benefit the appellant by mitigating the rigidity of the law under justifiable circumstances more particularly set forth in section 15. The very nature of section 15 with its extensive powers of suspending the application of the Immigration laws and regulations must be exercised by the Court most judiciously if these laws which were passed by Parliament for a specific purpose are to continue to have force of law.
Among the general criteria that have been considered by the Court as being essential in a judicious exercise of its equitable jurisdiction under section 15 is, on the one hand, the credibility, the good faith and a normally responsible attitude of the appellant and on the other hand the existence of a serious immigration problem with compassionate and humanitarian overtones, an adequate solution of which is not already provided for in the law itself.
There are certainly some cases where the authority entrusted with a discretion would act illegally in subjecting its exercise to rules of its own making. So would it be if these rules were so precise and rigid that their application would cause the authority to fail in its duty to take into consideration all the relevant facts of each individual case (See: Re Hopedale Developments Ltd. and Town of Oakville, 47 D.L.R. (2d) 482; de Smith, Judicial Review of Administrative Action, 2nd ed., p. 294); so would it be, also, if these rules referred to irrelevant considerations. But in the present case I do not think that the Board acted illegally when it referred to the criteria mentioned in its reasons in order to determine whether it would grant a special relief. The application of these very general criteria did not, in my view, lead the Board to ignore any part of the evidence. Moreover, I am of the opinion that the Board did not take irrelevant considerations into account where it referred to the credibility, good faith and sense of responsibility of the appellant. The Board had to determine whether, in its opinion, there existed compassionate grounds for protecting the appellant from the application of the law; I feel it normal for the Board in making such a determination to not only consider the situation that would be created by the execution of the deportation order, but to also examine whether the one who claims mercy deserves any pity. Compassion is more readily felt for one who has demonstrated his credibility, good faith and responsibility than for one who, after having knowingly infringed our immigration laws, has done nothing to solve his immigration problem.
The appellant also contends, and this is his second ground of appeal, that the findings of the Board were so clearly unreasonable that the Board should be considered as having exercised its discretion illegally without considering the evidence before it. This refers to that part of the reasons for the decision where the Board, applying the "criteria" it had already formulat ed, stated that it doubted the appellant's credi bility, good faith and responsibility and that the
appellant, even if he were not deported, would very often live away from his family.
The evidence shows clearly that the appellant entered Canada knowing that he was infringing our laws and, also, that he did nothing to solve his immigration problem. I therefore cannot but say that the Board was justified in questioning the appellant's good faith and in asserting that he had not acted as a normally responsible person.
The accuracy of the finding made by the Board with respect to the appellant's credibility is not beyond dispute. But if I take into account that the Board had the advantage of hearing the appellant, I cannot say, after having read the evidence, that this finding was an unreasonable one.
There remains the Board's assertion that the appellant, if he were allowed to remain in Canada, would nevertheless live very often away from his family. The evidence shows that the appellant is an entertainer who, in the pur suit of his profession, travels frequently and, now and then, has to go away for lengthy peri ods; in addition, the appellant himself, when he testified before the Special Inquiry Officer, said that, even if he established his residence in Canada, he would still have to maintain a resi dence in the United States for the purposes of his work. In these circumstances, it seems to me that the Board could reasonably find as it did.
For these reasons, I would dismiss the appeal.
* * *
PERRIER D.J.—The numbers mentioned below refer to the pages of the Appeal Record.
—I—
A deportation order was issued against appel lant on June 14, 1967.
Reasons for Judgment:
1) you are not a Canadian citizen;
2) you are not a person having Canadian domicile, and that
3) you are a member of the prohibited class described in paragraph (t) of section 5 of the Immigration Act in that you cannot or do not fulfil or comply with the conditions or requirements of this Act or the Regulations by reason of the fact you are not in possession of a letter of pre-examination in the form prescribed by the Minister, as required by subsection (2) of section 28 of the Immigration Regulations, Part I, of the Immigration Act;
4) you are a member of the prohibited class described in paragraph (t) of section 5 of the Immigration Act in that you cannot or do not fulfil or comply with the conditions or requirements of this Act or the Regulations by reason of the fact you are not in possession of a medical certificate in the form prescribed by the Minister, as required by subsection (1) of section 29 of the Immigration Regulations, Part I, of the Immigration Act.
I hereby order you to be detained and to be deported.
However, appellant feels there were other reasons for his deportation.
Page 8-
Q. Have you ever been refused admission or deported
from Canada?
A. Yes.
Q. Could you give me details pertaining to said
deportation?
A. In 1967, I was deported.
Q. Do you know why?
A. As far as I know, I was supposed to receive some examination papers but I never did. In 1967, I was told this was the reason I guess. The rest of it is because of the trouble I was out.
Q. What type of trouble was it?
A. Because of a rented car. I had difficulties returning it in time. Since then, I was accused falsely of stealing the car, when I had returned it, and recently acquitted of that accusation.
Q. Is that the only trouble you had with the Law in
Canada?
A. Yes.
Q. Have you ever had any trouble with the Law in any other country?
A. Once, in Newark, New Jersey, that I am finishing up now.
Q. Do you have any objection to give me some details as regards this trouble in New Jersey?
A. The trouble in Newark, New Jersey, is for a rented organ. Also I was accused of stealing the organ. This is 5 years or more old. I will take also care of that from where I am going to work, with the money I expect to earn.
Q. Do you owe an important sum of money in that affair? A. Only the lawyer's fees, that is all.
Q. Do you mean you are cleared with the Court for that
case?
A. I don't believe so, but it could be after all this time.
Q. Have you been sentenced for that accusation? A. No.
Q. Did you pay a fine or did you have any other
sentence?
A. None.
Q. Would you say that you were detained? A. Yes, I was detained.
Q. Were you detained for a trial or sentenced to jail? A. For a trial.
Q. How long were you detained?
A. Two weeks.
Page 9-
Q. Have you had any other trouble with the Law or the
Police Forces?
A. None.
Page 45-
Q. Now, what was the outcome, if any, of the proceed
ings against you at Newark, New Jersey, in respect of
the organ which you said you rented? That is on page
8 of the transcript; what happened at that time, sir?
A. Well, I never trusted the person and I make arrange ments to make him payments. After that, I heard no more about it.
There was no appeal from this judgment; consequently appellant was subject to section 35 of the Immigration Act:
35. Unless an appeal against such order is allowed, a person against whom a deportation order has been made and who is deported or leaves Canada shall not thereafter be admitted to Canada or allowed to remain in Canada without the consent of the Minister.
—"—
Appellant did not come to Canada for three years following the deportation order.
Page 7-
Q. What were these periods?
A. In the last 3 years, I have communicated very little.
Q. How did you communicate with them? A. By phone—she came to Plattsburg.
Q. Am I to understand that in the last 3 years, you have
not come to Canada?
A. No. I have been in and out, short times.
In December 1969 he entered Canada at the Champlain post while travelling in a car with some friends.
He represents that he was sleeping, and it was his friends who answered the questions asked at the border by the Immigration officers. He was aware that he was entering the country illegally.
Page 37-
Q. Mr. Martin, you do not deny that you have been once
deported from Canada?
A. Yes.
Q. And that you came back without having the permis sion of the Minister as provided by the law?
A. Yes.
He happened to be stopped by the police in Montreal, and was then referred to the Immi gration Department. He states he was coming to visit his wife and child, but had not told his wife of this.
Page 41-
Q. Did that officer ask why you were coming to Canada?
A. Yes.
Q. What did you tell him? A. For a visit.
Q. Was that a correct statement?
A. Well, being that I didn't come to stay, it would have to
be a visit.
Q. But what were your intentions? A. To see my wife and my son.
Q. And to stay for how long?
A. Well, I had into my mind to come, after seeing my wife and my son, to come to the Immigration and plead that I would be given another chance.
He also claims he intended to report to the Immigration authorities and take the necessary steps to regularize his position. Following another inquiry, a second deportation order was issued on February 2, 1970.
Reasons for this Judgment (page 33):
1. You are not a Canadian citizen.
2. You are not a person having acquired Canadian domicile.
3. You are a person described under subparagraph (ix) of paragraph (o) of subsection (1) of section 19 of the Immi gration Act in that you returned and remained in Canada contrary to the provisions of this Act after a deportation order was made against you; at Montreal, on June the 14th 1967, and since no appeal against such an order was
allowed and you were deported and left Canada, and, since you did not have the consent of the Minister, it is contrary to the provisions of section 38 of the Immigration Act to allow you to remain in Canada. In accordance with subsec tion (2) of section 19 of the Immigration Act, you are subject to deportation.
The Appeal Appeal Board dismissed this appeal on August 24, 1971 for the reasons stated in its decision (pages 65 to 70).
—IV—
Appellant seeks to take advantage of section 15 of the Act, which provides for appeals before an Immigration Appeal Board.
15. (1) . .. the Board may ... direct that the execution of the order of deportation be stayed, or quash the order or quash the order and direct the grant or entry or landing to the person against whom the order was made.
In its judgment the Appeal Board definitely took into consideration the distressing situation resulting from the fact of condemning appellant to live outside the country while his wife and child, now five years old, live in Montreal.
The Appeal Board observed quite logically that such separation resulted more from appel lant's occupation and job than from the order. The testimony of appellant and his wife estab lished that they have lived together, since their marriage in 1965, for about two and a half years, made up of various periods not exceed ing two months. The evidence indicates that appellant worked outside the country for seven ty per cent of the time.
If his appeal were allowed it is certain that appellant would continue, as in the past, to spend more time working outside the country than within. Moreover appellant does not appear to have any fixed intention to remain in the country.
The two spouses would undoubtedly prefer to remain in Canada. However, the wife states she is willing to continue residing with her husband in the United States if this appeal is dismissed.
Q. If your husband has to return to the United States, do
you intend to return with him or to live in Canada?
A. To live in Canada. I want to apply for some papers for him if he cannot do it himself. He wants to buy a home, so we will go and live here, but if he cannot enter to Canada, I guess I will have to go to the States.
Q. Is it your intention to live together with your husband
and child?
A. Yes, it is my intention, definitely.
—V—
It should be noted that appellant's financial position is hardly prosperous; he has been and will be unemployed for fairly long periods because of the vagaries of his occupation. His wife stated that when her husband was working, he sent her $200.00 or $250.00 per month, while he himself testified that he sent his wife a minimum of $25.00 per week. It was duly established that in some cases the wife even had to come to her husband's aid.
—VI—
The Appeal Board noted substantial contra dictions between the testimony of appellant and that of his wife. There were in addition contra dictions between the testimony given by appel lant on February 2, 1970 and that which he gave on June 7, 1971.
Appellant's attitude and contradictions cast doubt on the degree of credibility which the Court can attach to his testimony, and place his good faith in question.
—VII—
Principally for the reason that appellant has never requested or obtained the Minister's con sent to enter Canada, the Appeal Board's deci
sion is correct.
Appellant's wife can take advantage of sec tion 31 of the Regulations under the Immigra
tion Act.
31. (1) Subject to this section, every person residing in Canada who is a Canadian citizen or a person lawfully admitted to Canada for permanent residence is entitled to sponsor for admission to Canada for permanent residence any of the following individuals (hereinafter referred to as a "sponsored dependant"):
(a) the husband or wife of that person;... Moreover, this is what she intends to do.
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A. I would like to find out exactly what is going to be done, if he is to be deported I want to know, and what procedure we will have to go through to get him the right papers to become an immigrant person with resident papers. This is what I want to know. He really has not done anything since we are married. We married here in Montreal, our son was born here, he does not work in Montreal, but often he does some thing, but most of the times he works in the States. It would be good if he could get his papers once and for all. How long it would take to get his papers together with the certificate he needs?
Page 52-
Q. So, would it be correct to say that since November,
1967 you have made no application for your husband?
A. No, not until we went together, the last time.
Q. Did you know that as a Canadian citizen, you have the right to sponsor your husband for admission to Canada?
A. No, they didn't tell me; they weren't that helpful.
When appellant's legal position has been regularized and the matrimonial situation of himself and his wife has been stabilized some what, according to whether appellant has obtained employment in this country or outside, it will be easier for him to apply for and obtain readmission.
For the foregoing reasons I would dismiss the appeal.
 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.