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A-169-81
Mohan Eugene D'Souza (Appellant) v.
Minister of Employment and Immigration (Respondent)
Court of Appeal, Thurlow C.J., Lalande and Cowan D.JJ.—Toronto, September 24, 1982.
Immigration — Deportation order — Appeal pursuant to s. 84 of the Act from decision of Immigration Appeal Board dismissing appeal from deportation order made under s. 27(1)(e) on grounds that appellant granted landing as result of misrepresentation of material fact made by mother whom he accompanied to Canada as dependent — Appellant contends s. 27(1)(e) should be read as requiring knowledge of misrepre sentation by person being deported; that he was denied fair opportunity to deal with and answer to affidavit received by Adjudicator, and that, in considering whether to grant special relief under s. 72(1)(b), Board erred by failing to consider fact that appellant had no prior knowledge of misrepresentation made by mother — Appeal dismissed —.Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 27(I)(e), 72(1)(b), 84.
COUNSEL:
M. Pacheco for appellant. R. J. Levine for respondent.
SOLICITORS:
Green & Spiegel, Toronto, for appellant. Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment rendered in English by
THURLOW C.J.: This is an appeal under section 84 of the Immigration Act, 1976, S.C. 1976-77, c. 52 from a decision of the Immigration Appeal Board which dismissed the appellant's appeal from a deportation order made against the appellant on November 29, 1979 by an Adjudicator following an inquiry under the Act. The ground for deporta tion stated in the order is that the appellant was a
person described in paragraph 27(1)(e)' of the Act as he had been granted landing by reason of misrepresentation of a material fact made by another person.
The other person referred to was the appellant's mother and the alleged misrepresentation consist ed of an incorrect answer by her to one of the questions on her application for admission to Canada. The appellant made an application of his own in which there were no errors, but it is common ground that he accompanied his mother to Canada and was granted entry as her depend ent. It is no longer in dispute that the incorrect answer in the mother's application amounted to a misrepresentation and that it was of a material fact. As the appellant entered as her dependent, it follows that the misrepresentation was material to the grant of entry to him as well as to his mother.
The principal submission raised on behalf of the appellant was that because he did not make, or know that his mother had made, a misrepresenta tion, the wording "made ... by any other person" in paragraph 27(1)(e) of the Act does not apply to him. It was said that because of the harsh conse quences, which flow from a deportation order, including disability from entering Canada without the Minister's consent and the severe penalty for entering without such consent, the wording in question should be read as inapplicable where, at the material time, i.e. the time of his being granted entry, the person did not even know that the statement had been made.
Notwithstanding the very careful and compre hensive argument put forward by counsel for the
' 27. (I) Where an immigration officer or peace officer has in his possession information indicating that a permanent resi dent is a person who
(e) was granted landing by reason of possession of a false or improperly obtained passport, visa or other document per taining 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
appellant, I do not think the submission can pre vail. It may be noted that the Board did not make a finding that the appellant was unaware at the material time that his mother had made an incor rect answer. On the evidence, and having regard to the circumstances under which the applications were made, the Board might well have been left unsatisfied that the appellant did not know. Indeed, on the evidence it would, in my view, be difficult to reach such a conclusion.
But be that as it may, to adopt the proposed construction of the statute would, in my opinion, require the addition of words limiting its applica tion to situations where the person concerned had knowledge of the making of the statement. I do not think the Court can supply or insert such wording. If the statute is to be so limited it is, in my opinion, a matter for Parliament. The submission, there fore, fails.
The second point raised concerned an affidavit received by the Adjudicator at the inquiry and the lack of a fair opportunity for the appellant to deal with and answer it. There was, however, ample opportunity to object to and meet it at the hearing before the Board. No objection to it was raised on that occasion. The point was not pursued in the argument before us and, in my view, it is untenable.
The remaining submission was that in consider ing whether to grant the appellant special relief 2 , having regard to all the circumstances of the case, the Board failed to consider the fact that the appellant had had no prior knowledge of the mis representation made by his mother.
The Board may not have been satisfied that the appellant did not know, in which case it would have been under no obligation to take such a fact into account. On the other hand, if the Board was satisfied that the appellant did not know, it was but one of many considerations to be taken into account and there is, in my view, no reason to conclude that the Board did not consider it. The Board cannot be required to state every feature given consideration and it is not to be presumed
2 Under par. 72(1) (b).
from the failure to mention a feature of the situa tion that the feature has not been considered and taken into account. Moreover, in the course of its reasons, the Board said:
The Board has carefully considered all of the evidence and cannot find such considerations as would warrant the granting of special relief.
In my opinion, there is no basis on which this Court could properly set the Board's judgment aside and refer the matter back to it for reconsideration.
I would dismiss the appeal. LALANDE D.J.: I agree.
COWAN D.J.: I agree.
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