A-969-88
Anna Esperanza Medel (Appellant)
v.
Minister of Employment and Immigration
(Respondent)
INDEXED AS: MEDEL v. CANADA (MINISTER OF EMPLOYMENT
AND IMMIGRATION) (CA.)
Court of Appeal, Marceau, Stone and MacGuigan
JJ.A.—Vancouver, April 2 and 6, 1990.
Immigration — Deportation — Whether appellant entered
Canada by fraudulent or improper means — Husband with
drawing sponsorship application without telling appellant —
Immigration officers abroad told appellant to return visa
because of "error" needing correction — Appellant, believing
visa error free and unaware of husband's actions, used it to
enter Canada — Not mentioning messages from Canadian
Embassy — Appellant reasonably believed withholding noth
ing relevant.
The appellant married a Canadian citizen while visiting
Canada in 1984 and returned to Honduras so that her husband
could make an application for her sponsorship. She received a
visa from the Canadian Embassy in Guatemala City. Before
she could use it, her husband, without informing the appellant
of his actions, withdrew his application to sponsor her. He was
living with another woman. Rather than telling her the truth,
the Embassy, first by telegram, then by telephone, asked her, in
Spanish, to return her visa because an "error" had to be
corrected. Advised by people close to her that the visa con
tained no error, she did not return it and used it to enter
Canada. She made no mention of the telegram or the telephone
conversation to the admitting officer at the port of entry. The
appellant spoke Spanish only and the admitting officer did not
speak Spanish.
An adjudicator held an inquiry and determined that the
appellant had not entered Canada by fraudulent or improper
means. The Immigration Appeal Board arrived at the contrary
conclusion and issued a suspended deportation order. This was
an appeal from that decision.
Held, the appeal should be allowed.
Immigration claimants owe a "positive duty of candour" as
to all material facts which denote a change of circumstances
since the issuance of the visa. The issue was what that duty of
candour required in this case or, more precisely, whether what
was not disclosed could reasonably and objectively be said to
have been relevant.
The non-disclosure was that the appellant did not volunteer
to the admitting officer the information that the Embassy in
Guatemala had requested the return of her visa and her failure
to produce the telegram. The appellant was subjectively una
ware that she was holding anything back. Still unaware of her
husband's actions, she was under the impression that the
Embassy was simply being excessively bureaucratic. Objective
ly, one could conclude that she reasonably believed that she was
withholding nothing relevant to her admission. This was quite
different from cases where a claimant has concealed informa
tion about criminal convictions or been told that his visa was no
longer valid and that he should not attempt to enter Canada.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Immigration Act, 1976, S.C. 1976-77, c. 52, s. 27(1)(e).
CASES JUDICIALLY CONSIDERED
DISTINGUISHED:
Minister of Manpower and Immigration v. Brooks,
[1974] S.C.R. 850; 36 D.L.R. (3d) 522; Minister of
Employment and Immigration v. Gudino, [1982] 2 F.C.
40; (1981), 124 D.L.R. (3d) 748; 38 N.R. 361 (C.A.).
COUNSEL:
Simon R. Buck for appellant.
Paul F. Partridge for respondent.
SOLICITORS:
Angly Wilson & Buck, Vancouver, for
appellant.
Deputy Attorney General of Canada for
respondent.
These are the reasons for judgment of the
Court delivered orally in English by
MACGUIGAN J.A.: The appellant entered
Canada in 1984 as a visitor and, while here, met
and married a Canadian citizen. Shortly thereaf
ter, the appellant returned to her native Honduras
to permit her husband to make an application for
sponsorship on her behalf, which he did on Janu-
ary 25, 1985.
A visa was issued to the appellant by the
Canadian Embassy in Guatemala City (which
apparently handles immigration matters in the
region) on September 9, 1985, but she delayed her
departure to Canada because her mother was ill
and facing surgery. However, she was instructed in
the meantime to visit the Canadian Consulate in
her own country. She did so in September, 1985,
and was advised that her documents were in order.
However, on December 18, 1985, without
informing the appellant of his actions, her husband
withdrew the application to sponsor her, and
accordingly, on December 20, 1985, a telegram in
Spanish was sent to the appellant by the visa
section of the Canadian Embassy in Guatemala.
An official translation of the telegram is as follows
(Appeal Book, I at page 55):
Please advise if you have received your visa for Canada. If you
have, please send it back to this office (P.O. Box 400 Guatema-
la City) because it has an error and if we do not correct it you
will not be able to use it. It is urgent.
It will be noted that the Embassy did not tell the
appellant the real reason for its request but instead
misrepresented the reason as an implied clerical
error, the correction of which would enable her to
use the visa again, when in fact the exact opposite
was true.
After receiving the telegram, the appellant took
the visa to an uncle and a friend, both of whom
were fluent in English, to have it checked for
errors. They both advised her that it contained no
errors on its face.
As far as appears from the record, the appellant
did not reply to the telegram, and so on January 3,
1986, an immigration officer at the Canadian
Embassy in Guatemala telephoned her. The
unsworn statement of the immigration officer as to
the conversation is as follows (Appeal Book, I at
page 52):
I spoke to Mrs. Medel in Spanish, her native language, and in
simple words explained that she would have to return her
immigrant visa to us—immediately as she would not be able to
use it as it was. She did not ask what was wrong with the visa;
she merely indicated that she would send it by registered air
mail the following day.
The appellant then again consulted her uncle and
her friend, who again advised that there were no
errors in the visa. She therefore did not return the
visa to the Embassy, but used it to enter Canada
through Calgary International Airport on January
21, 1986.
The immigration officer there was unable to
contact her husband but reached her aunt, who
agreed to meet her in Vancouver. He then admit
ted her into Canada as a permanent resident
apparently without questions, as he spoke no Span-
ish and she no English. Once in Canada she
learned that her husband had withdrawn his spon
sorship and was in fact living with another woman.
An inquiry was held to determine if the appel
lant was a person described in paragraph 27(1)(e)
of the Immigration Act, 1976 [S.C. 1976-77, c.
52] ("granted landing ... by reason of any fraudu
lent or improper means"). An adjudicator deter
mined on March 3, 1987, that she was not such a
person. The respondent appealed the adjudicator's
decision to the Immigration Appeal Board ("the
Board") which held by a 2-1 majority that the
appellant was a person described in paragraph
27(1)(e) and issued a suspended deportation order.
The majority believed that its decision was deter
mined by the decision of the Supreme Court of
Canada in Minister of Manpower and Immigra
tion v. Brooks, [1974] S.C.R. 850, whereas the
dissenting Board member apparently relied on a
concept of estoppel against the respondent based
on his failure to disclose to the appellant the
reason for the requested return of the visa.
It is common ground that immigration claim
ants owe the "positive duty of candour" on all
material facts which denote a change of circum
stances since the issuance of the visa that was
recognized in this Court in Minister of Employ
ment and Immigration v. Gudino, [1982] 2 F.C.
40 (per Heald J.). The issue is as to what that duty
of candour requires in circumstances such as those
at bar.
In Brooks, the Supreme Court interpreted a
statutory provision which was substantially identi
cal with that in the present case except for the
phrase there interpreted by the Court: "by reason
of any false or misleading information". However,
even if we assume, without deciding, that "improp-
er" means should not be interpreted to mean
"fraudulent" means, nevertheless, in my view the
real issue in the case at bar is rather as to the
relevance of the means, as reasonably and objec
tively measured. The Court in Brooks gave no
final answer on this question of materiality, but it
was very much within its contemplation, particu
larly in relation to the very words under consider
ation in the case at bar (per Laskin J. at pages
870-871):
In my opinion, if the materiality of matters on which no
questions are asked is cognizable under s. 19(1)(e)(viii), it
would be under the words "other fraudulent or improper
means". They are broad enough to embrace non-disclosure of
facts which would be material to admission or non-admission if
known
Section 19(1)(e)(viii) ... does, however, stipulate that where
false or misleading information is the basis of deportation
proceedings against a previously landed immigrant, it be shown
that it was by reason of any such information that he came into
or remained in Canada. The phrase "by reason of' imports
something beyond the mere giving of false or misleading infor
mation; it connotes an inducing influence of the information,
and hence I agree with the Immigration Appeal Board that it
brings in materiality. It is on this basis that, in my opinion, the
inadvertence or carelessness of an answer must be weighed as
to its consequences; and it is in this connection, and not as
importing any element of mens rea (as the Board stated) that
the certification statement in the admission documents herein,
namely, "my answers ... are true ... to the best of my
knowledge" has significance for the purposes of s.
19(1)(e)(viii). [Underlining added.]
In the case at bar, the non-disclosure in question
was the fact that the appellant did not volunteer to
the admitting officer the information that the
Embassy in Guatemala had requested the return
of her visa, which, given her lack of English, might
have been next to impossible—or that she did not
produce for scrutiny the Embassy's telegram to
her—though since that was in Spanish, it might
not have triggered any further inquiry at the time.
Clearly, the appellant was subjectively unaware
that she was holding anything back. She had no
knowledge of her husband's withdrawal of spon
sorship and her impression was that the Embassy
was being excessively bureaucratic. Her uncle, her
friend, and indeed the Canadian Consulate in
Honduras had assured her that her visa was valid.
She may well have thought that, if there were any
minor irregularities in the visa, they could be
cured as easily in Calgary as in Guatemala City.
It seems to me that the same factors, looked at
objectively, lead to the conclusion that she reason
ably believed that at the border she was withhold
ing nothing relevant to her admission. That was, in
fact, precisely what she had been told by the
Embassy, viz., that a correction was necessary to
enable her to use the visa, from which she would
have reasonably deduced that there continued to
be no problem respecting her admission.
This is quite different from the situation in
Brooks where the immigration claimant concealed
information about his conviction for bigamy and
about criminal charges and deportation proceed
ings against him in the Philippines. It also has
nothing in common with Gudino where the claim
ant had been telephoned by the Embassy in
Mexico that, since his offer of employment in
Canada had been withdrawn, his visa was no
longer valid and he should not attempt to enter
Canada. The appellant in the case at bar might
well have been in Gudino's position if she had been
told the truth by the Embassy. But what she was
told puts her in an entirely different position.
I would therefore allow the appeal, set aside the
decision of the Immigration Appeal Board, and
return the matter to the Board for reconsideration
on the basis that the appellant was not granted
landing in Canada by reason of any fraudulent or
improper means.
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.