[2000] 1 F.C. 603
A-917-97
Isam Jaber (Appellant)
v.
Minister of Citizenship and Immigration (Respondent)
Indexed as: Jaber v. Canada (Minister of Citizenship and Immigration) (C.A.)
Court of Appeal, Marceau, Desjardins and Létourneau JJ.A.—Montréal, September 20; Ottawa, September 30, 1999.
Citizenship and Immigration — Exclusion and removal — Immigration inquiry process — Appeal from F.C.T.D. judgment affirming IRB’s refusal to hear appeal from adjudicator on ground lacked jurisdiction — Appellant granted landing based on statement still single as indicated on information form, qualified as father’s dependant — In fact married after obtaining visa, before arriving in Canada — Immigration Act, s. 27(1)(e) requiring immigration officer to forward to Deputy Minister written report setting out information indicating permanent resident granted landing by reason of misrepresentation of material fact — At s. 27(1)(e) inquiry adjudicator holding landing granted by reason of misrepresentation, issuing deportation order — IRB refusing to hear appeal on ground appellant not having right to appeal as not permanent resident — Acceptance of argument landing absolute nullity based on 1952 Immigration Act, s. 2(n) definition of “landing” as lawful admission for permanent residence in Canada contrary to procedure in Immigration Act for granting, revoking landing, would lead to absurdities — If persons described in s. 27(1)(e) not having right of appeal because not lawfully admitted, none of persons listed in s. 27 having right of appeal, despite procedure set out in s. 70 — Concept of “permanent resident” in s. 70 same as in s. 27, fitting into logical fair system intended to establish whether landing granted at point of entry to Canada lawful — Answers to certified questions: (1) Where person granted landing by means of misrepresentation of marital status appeals removal order pursuant to s. 70(1), Appeal Division may not dismiss appeal for want of jurisdiction without hearing merits; (2) Appeal Division having jurisdiction under s. 70(1) to entertain appeal of person landed on basis of fraudulent misrepresentation; (3) Person landed on basis of fraudulent misrepresentation given “lawful permission to establish permanent residence in Canada” so as to be “permanent resident” who can appeal under s. 70(1); (4) Appeal Division having jurisdiction under s. 70(1) to entertain appeal of person, whether or not report on person made under s. 27(1)(e), s. 27(2)(g).
This was an appeal from a Trial Division judgment affirming the Immigration and Refugee Board’s refusal to hear the appellant’s appeal from an adjudicator’s decision that appellant had gained landing by misrepresenting a material fact on the ground that it lacked jurisdiction as the appellant had been stripped of his right to permanent residence. The Trial Judge had certified four questions for determination on appeal.
The appellant applied for permanent residence as a dependant of his father. A person must be single to be eligible to immigrate to Canada as a dependant. In a supplementary information form he indicated that he was unmarried. The appellant obtained his visa on October 9, 1992 and on November 13, 1992, married a Syrian citizen in Syria. Upon arriving in Canada on November 23, 1992, he declared that he was still single and that he was an accompanying dependant of his father. He certified that the information he provided at the point of entry to Canada was true and accurate. The immigration officer then granted him landing on the strength of these statements. It was subsequently discovered that the appellant’s statements were false when he attempted to sponsor his spouse to join him in Canada and indicated that he was married in his sponsorship application. At an inquiry held under Immigration Act, paragraph 27(1)(e), requiring an immigration officer to report to the Deputy Minister any information indicating that a permanent resident was granted landing by reason of misrepresentation of any material fact, the adjudicator rejected the appellant’s assertion that he was only engaged, and held that landing had been granted by reason of misrepresentation of a material fact by the appellant. A deportation order was issued. Based on the definition of “landing” in the 1952 Immigration Act, paragraph 2(n) as lawful admission to Canada for permanent residence, the Minister submitted that because the appellant 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. Since the right of appeal under subsection 70(1) is restricted to permanent residents, it was submitted that the appellant had no right of appeal against the removal order.
Held, the appeal should be allowed.
Acceptance of the Minister’s argument with respect to the absolute nullity of the visa would be contrary to the procedure established by Parliament and would lead to absurdities. Both the report to the Deputy Minister under section 27 and the resulting deportation order pursuant to subsection 32(2) can only be validly made against the appellant if that person is a permanent resident. Therefore, these sections and the procedure that they establish presuppose that the administrative act granting landing is valid, but landing may be revoked for cause after an inquiry during which the appellant has the right to be represented by counsel pursuant to section 30. However, according to the Minister’s reasoning, the appellant would be a permanent resident for the purposes of being able to invoke the inquiry procedure and justify the removal order, but would no longer be a permanent resident at the end of the inquiry and would therefore not have a right of appeal pursuant to subsection 70(1), notwithstanding the fact that under section 36, the adjudicator who orders the removal order is required to forthwith inform the appellant of the right of appeal pursuant to section 70. In other words, the Minister’s reasoning would lead to a system in which all persons contemplated by section 27, including those convicted of a criminal offence before being granted landing and those who were granted landing subject to terms and conditions, but who contravened any of those terms or conditions would be permanent residents with a right of appeal as defined in section 70 except for those persons contemplated by paragraph 27(1)(e), where an adjudicator finds that landing was granted by reason of misrepresentations. Nothing in the procedure adopted by Parliament justified this interpretation or conclusion for residents described in paragraph 27(1)(e).
Furthermore, it is specious to make a distinction for persons described in paragraph 27(1)(e) on the basis of 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 why they are deported. If persons described in paragraph 27(1)(e) do not have the right of appeal because they were not lawfully admitted, then none of the categories of person listed in section 27 have the right of appeal despite the elaborate appeal procedure set out in section 70. Parliament would not confer a right of appeal on permanent residents under section 70, and then, using the artifice of a general definition in paragraph 2(n), limit the category of appellants to only a few of the persons listed in section 27, even though section 70 specifically identifies those who are denied the right of appeal.
Finally, Citizenship Act, subsection 10(2) recognizes that a person who was granted landing by reason of misrepresentations is nonetheless lawfully admitted to Canada.
The concept of “permanent resident” found in section 70 is the same as that used in section 27. Thus interpreted, this concept fits into a logical and fair system which is intended to establish whether landing granted at a point of entry to Canada was lawful.
The certified questions were answered as follows: (1) Where an adjudicator finds that a person was granted landing by means of a misrepresentation of marital status and the person appeals the adjudicator’s removal order pursuant to subsection 70(1), the Appeal Division may not dismiss the appeal for want of jurisdiction based on the adjudication record and the parties’ arguments concerning its jurisdiction without hearing the merits of the appeal; (2) The Appeal Division has jurisdiction under subsection 70(1) to entertain the appeal of a person who was landed on the basis of a fraudulent misrepresentation made by that person; (3) A person who has been landed on the basis of a fraudulent misrepresentation has been given “lawful permission to establish permanent residence in Canada” so as to be a “permanent resident” who can appeal under subsection 70(1); (4) the Appeal Division has jurisdiction under subsection 70(1) to entertain the appeal of a person, whether or not the report on that person was made under paragraph 27(1)(e ) or paragraph 27(2)(g).
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Citizenship Act, R.S.C., 1985, c. C-29, s. 10(2).
Immigration Act, R.S.C. 1952 (Supp.), c. 325, s. 2(n) “landing”.
Immigration Act, R.S.C., 1985, c. I-2, ss. 8, 14(2) (as am. by S.C. 1992, c. 49, s. 8), 23 (as am. idem, s. 13; 1995, c. 15, s. 3), 24 (as am. idem, s. 4); 25 (as am. by S.C. 1992, c. 49, s. 14), 27(1) (as am. idem, s. 16), (a.2) (as enacted idem), (a.3) (as enacted idem), (b), (e), (2)(g), 30 (as am. idem, s. 19), 32(2) (as am. idem, s. 21), 36 (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 13), 70(1) (as am. idem, s. 18; S.C. 1995, c. 15, s. 13), (2)(b) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1995, c. 15, s. 13), (3.1) (as enacted idem), (4) (as am. idem), (5) (as enacted idem), 83 (as am. by S.C. 1992, c. 49, s. 73).
CASES JUDICIALLY CONSIDERED
APPLIED:
McLeod v. Canada (Minister of Citizenship and Immigration), [1999] 1 F.C. 257 (1998), 46 Imm. L.R. (2d) 295 (C.A.); Hundal v. Canada (Minister of Citizenship & Immigration) (1996), 36 Imm. L.R. (2d) 153; 206 N.R. 184 (F.C.A.); Canada (Minister of Citizenship and Immigration) v. Seneca, [1998] 3 F.C. 494 (1998), 146 F.T.R. 193 (T.D.).
REFERRED TO:
Yu v. Canada (Minister of Citizenship and Immigration) (1997), 132 F.T.R. 226; 39 Imm. L.R. (2d) 97 (F.C.T.D.); Minister of Manpower and Immigration v. Brooks, [1974] S.C.R. 850; (1973), 36 D.L.R. (3d) 522; R v Secretary of State for the Home Dept, ex p Jayakody, [1982] 1 All ER 461 (C.A.).
APPEAL from Trial Division judgment (Jaber v. Canada (Minister of Citizenship and Immigration) (1997), 140 F.T.R. 112 (F.C.T.D.)) affirming the Immigration and Refugee Board’s refusal to hear an appeal from the decision of an adjudicator on the ground that it lacked jurisdiction because the appellant had been stripped of his right to permanent residence. Appeal allowed.
APPEARANCES:
Jacques Beauchemin for appellant.
Michèle Joubert for respondent.
SOLICITORS OF RECORD:
Alarie, Legault, Beauchemin, Paquin, Jobin, Brisson & Philpot, Montréal, for appellant.
Deputy Attorney General of Canada for respondent.
The following is the English version of the reasons for judgment rendered by
Létourneau J.A.:
Issues
[1] The appeal we heard under section 83 of the Immigration Act [R.S.C., 1985, c. I-2 (as am. by S.C. 1992, c. 49, s. 73)] (the Act) concerns the following four questions certified by a Judge of the Trial Division [(1997), 140 F.T.R. 112, at pages 124-125]:
(1) Where an adjudicator finds that a person was granted landing by means of a misrepresentation of his or her marital status and the person appeals the adjudicator’s removal order pursuant to s. 70(1) of the Immigration Act, may the Appeal Division dismiss the appeal for want of jurisdiction based on the adjudication record and the parties’ arguments concerning its jurisdiction without hearing the merits of the appeal?
(2) Does the Appeal Division have jurisdiction under s. 70(1) to entertain the appeal of a person who was landed on the basis of a fraudulent misrepresentation made by that person?
(3) In particular, has a person who has been landed on the basis of a fraudulent misrepresentation been given “lawful permission to establish permanent residence in Canada” so as to be a “permanent resident” who can appeal under s. 70(1) of the Immigration Act?
(4) Does the Appeal Division have jurisdiction under s. 70(1) to entertain the appeal of a person, whether or not the report on that person was made under s. 27(1)(e) or s. 27(2)(g) of the Act?
[2] The appeal raises the issue of the legal effect of the decision of the adjudicator who, at the end of an inquiry held pursuant to paragraph 27(1)(e) [as am. by S.C. 1992, c. 49, s. 16] of the Act, found that Mr. Jaber (the appellant) was granted landing in Canada by reason of false statements or misrepresentations of a material fact at the time of his entry into Canada. Paragraph 27(1)(e) reads:
Removal After Admission
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;
[3] The respondent claims that the adjudicator’s decision based on paragraph 27(1)(e) operates to invalidate the grant of landing to the appellant retroactively to the date of issue. He concedes that the visa was obtained legally and is valid, but submits that because the appellant was granted landing by reason of misrepresentations, he never received lawful permission to establish permanent residence in Canada and therefore is not a permanent resident. His argument is based on the definition of the word “landing” in paragraph 2(n) of the Act [Immigration Act, R.S.C. 1952 (Supp.), c. 325], which means lawful admission to Canada for permanent residence. As, for our purposes, the right of appeal under subsection 70(1) [as am. by R.S.C., (1985) (4th Supp.), c. 28, s. 18; S.C. 1995, c. 15, s. 13] is restricted to permanent residents, he submits that the appellant has no right of appeal against the removal order:
70. (1) Subject to subsections (4) and (5), where a removal order or conditional removal order is made against a permanent resident or against a person lawfully in possession of a valid returning resident permit issued to that person pursuant to the regulations, that person may appeal to the Appeal Division on either or both of the following grounds, namely,
(a) on any ground of appeal that involves a question of law or fact, or mixed law and fact; and
(b) on the ground that, having regard to all the circumstances of the case, the person should not be removed from Canada.
[4] In support of this argument, the respondent also raised another argument in his memorandum and at the hearing which should be disposed of immediately. He submitted that it would be unfair to place both an honest and dishonest person on the same footing; the former benefiting from the right of appeal set out in subsection 70(1), but not the latter. The problem with this approach is that it presupposes that the initial verdict of dishonesty is well founded, while the object of the appeal is precisely to review and settle that issue. The initial verdict may not be correct as to the very existence of misrepresentations, the truth or falsity of the statements that were made, their scope, importance, relevance and especially the impact or influence they must have had on the making of the decision.[1] With so many possibilities for errors of both fact and law, the principle of justice would seem to require instead that such an important decision concerning a person’s integrity which has such far-reaching consequences for that person be reviewable. In any event, it appears that the answers to the questions raised can be found in the Act, but I hasten to add that even if the only authority for the answers were the principles of justice, I would not hesitate to conclude that, under the circumstances, that is an argument in favour of granting rather than denying the right of appeal.
[5] Ultimately, we must determine if the Appeal Division of the Immigration and Refugee Board (the Board) was justified in refusing to hear the appeal brought by the appellant on the ground that it lacked jurisdiction as the appellant had been stripped of his right to permanent residence.
[6] As the Trial Judge stated, the last three questions were already certified by one of his colleagues in Yu v. Canada (Minister of Citizenship and Immigration) (1997), 132 F.T.R. 226 (F.C.T.D.), for which the appeal hearing by this Court is set for November 3, 1999 in Toronto.
[7] I note that the wording of the fourth question is a translation of the question certified in Yu and that it illustrates even more clearly the inherent ambiguity of the English wording, which reads:
Does the IAD have jurisdiction under s. 70(1) to entertain the appeal of a person, whether or not the report on that person was made under s. 27(1)(e) or s. 27(2)(g) of the Act? [Emphasis added.]
[8] As the question is worded in either language, it appears to call into question the Board’s jurisdiction to hear an appeal under section 70, outside the context of a report made pursuant to either paragraph 27(1)(e) or 27(2)(g). It seems clear that the certified question is intended to establish the Board’s jurisdiction after a report is made in accordance with paragraph 27(1)(e) or 27(2)(g) and not independently of these two paragraphs. When read and understood in this way, it fits within the more limited context of the three other questions before it and it is this reframed question that I will answer.
Facts and Procedure
[9] The appellant sought judicial review of the Board’s decision and the Judge of the Trial Division affirmed that decision.
[10] The facts which gave rise to this matter can be briefly summarized. The appellant’s father applied for and was granted permanent residence as principal applicant. His wife and four of his unmarried children were included as dependants. The appellant described himself as unmarried in a supplementary information form he was required to provide, as a person must be single to be able to immigrate to Canada as a dependant.
[11] On October 9, 1992, the appellant and the other members of the family included in the application for permanent residence obtained their visa. On November 13, 1992, the appellant married a Syrian citizen in Syria. Upon arriving in Canada on November 23, 1992, he declared that he was still single and that he was an accompanying dependant of his father. He certified that the information he provided at the point of entry to Canada was true and accurate. The immigration officer then granted him landing on the strength of these statements.
[12] It was discovered that the appellant’s statements were false on April 13, 1993, when he attempted to sponsor his spouse to join him in Canada and indicated that he was married in his sponsorship application. As proof of her marital status, his wife supplied a marriage certificate indicating that the marriage had been performed on November 13, 1992, that is to say after the visa had been obtained (October 1992), but 10 days before landing was granted.
[13] After the discovery of these new facts, an adjudicator held an inquiry under paragraph 27(1)(e) of the Act. Based on the documentary evidence and the testimony of religious and legal experts on the rules and the legal validity of Islamic marriages and dismissing the appellant’s claim that it was only an engagement, the adjudicator said that he believed that landing had been granted by reason of misrepresentation of a material fact by the appellant and issued a deportation order against him pursuant to subsection 32(2) [as am. by S.C. 1992, c. 49, s. 21] of the Act.
Analysis
[14] The parties cited two recent decisions of this Court, McLeod v. Canada (Minister of Citizenship and Immigration), [1999] 1 F.C. 257 (C.A.); and Hundal v. Canada (Minister of Citizenship and Immigration) (1996), 36 Imm. L.R. (2d) 153 (F.C.A.), which involved the validity of visas after changes in the circumstances in respect of which they were issued. Even though it is the validity of the landing and not that of the visa which is at issue in the instant case, it is still worthwhile to examine these two decisions with respect to their approach to the validity of administrative acts related to the one at issue.
[15] In McLeod, the respondent argued that the visa ceased to be valid following the death of the mother who had obtained immigrant visas with her dependants. The mother died approximately one month before the visas were to expire and this Court held that a validly issued visa is not invalidated merely by a change in the circumstances in respect of which it was initially issued occurring after its issue. In the case at bar, it must be recognized that the change in circumstances affecting landing, namely the appellant’s marriage, occurred before landing was granted. In fact, the respondent placed a great deal of emphasis on this distinction which, in his view, means that landing was never lawfully granted. For the reasons I will explain below, I do not believe that, as important as it is, the difference between the two fact situations is determinative by itself because by definition, the change in circumstances in the instant case must occur before landing is granted, because it is the fact that the change was not disclosed which constitutes the misrepresentation on which the grant of landing was based.
[16] Hundal confirms that a visa does not automatically become invalid because the person who sponsored the application subsequently decides to withdraw sponsorship and therefore, the Appeal Division of the Immigration and Refugee Board is not deprived of its jurisdiction to hear the appeal brought by the visa holder. In other words, once a visa is issued it remains valid for the purposes of the appeal set out in paragraph 70(2)(b) [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1995, c. 15, s. 13] of the Act.
[17] In short, these two decisions refuse to sanction the administrative decision to issue a visa with absolute nullity. This conclusion was based on the procedure set out in the Act for granting and revoking visas as well as the appeal procedure for the removal orders which follow revocation.
[18] In my view, sections 8, 14, 23 [as am. by S.C. 1992, c. 49, s. 13; 1995, c. 15, s. 3], 24 [as am. idem, s. 4], 25 [as am. by S.C. 1992, c. 49, s. 14], 27, 32 and 70 of the Act establish a similar procedure for granting and revoking landing, a procedure which is inconsistent with invalidity ab initio which has the effect of retroactively erasing the decision to grant landing.
[19] Subsection 14(2) [as am. idem, s. 8] of the Act requires the immigration officer to grant landing where the officer is satisfied that it would not be contrary to the Act or the regulations:
14. …
(2) Where an immigration officer is satisfied that it would not be contrary to this Act or the regulations to grant landing to an immigrant whom the officer has examined, the officer shall
(a) grant landing to that immigrant; or
(b) authorize that immigrant to come into Canada on condition that the immigrant be present for further examination by an immigration officer within such time and at such place as the immigration officer who examined the immigrant may direct.
[20] Sections 27 to 32, in the Removal After Admission section, recognize that landing may have in fact been granted to undeserving people and sets out the procedure by and the grounds for which such a person thus admitted may be deported. It is also significant that section 70 [section 70(3.1) (as enacted by S.C. 1995, c. 15, s. 13), (4) (as am. idem), (5) (as enacted idem)] of the Act sets out in detail the right of appeal or lack thereof according to the grounds which led to and justify the deportation order:
70. …
(3.1) No appeal may be made to the Appeal Division by a person with respect to whom a certificate has been filed under subsection 40.1(1) where it has been determined, pursuant to paragraph 40.1(4)(d), that the certificate is reasonable.
(4) A person described in subsection (1) or paragraph (2)(a) against whom a deportation order or conditional deportation order is made may appeal to the Appeal Division on any ground of appeal that involves a question of law or fact, or mixed law and fact, where the person is
(a) a person, other than a person described in subsection (5), with respect to whom a certificate referred to in subsection 40(1) has been issued; or
(b) a person, other than a person described in subsection (3.1), who has been determined by an adjudicator to be a member of an inadmissible class described in paragraph 19(1)(e), (f), (g), (j) or (l).
(5) No appeal may be made to the Appeal Division by a person described in subsection (1) or paragraph (2)(a) or (b) against whom a deportation order or conditional deportation order is made where the Minister is of the opinion that the person constitutes a danger to the public in Canada and the person has been determined by an adjudicator to be
(a) a member of an inadmissible class described in paragraph 19(1)(c), (c.1), (c.2) or (d);
(b) a person described in paragraph 27(1)(a.1); or
(c) a person described in paragraph 27(1)(d) who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of ten years or more may be imposed.
Thus, for example, permanent residents who have been determined to be members of an inadmissible class or who constitute a danger to the public in Canada may not make an appeal. However, the appellant does not fall within any of the categories of persons referred to in subsections 70(3.1), (4) and (5) who may not make an appeal. On the contrary, pursuant to subsection 70(1), he may make an appeal on any ground of appeal that involves a question of law or fact, or mixed law and fact.
[21] In my view, to accept the respondent’s argument with respect to the absolute nullity of the act would not only be contrary to the procedure established by Parliament, but would lead to absurdities.
[22] First, both the report to the Deputy Minister under section 27 and the resulting deportation order pursuant to subsection 32(2) can only be validly made against the appellant if that person is a permanent resident:
32. …
(2) Where an adjudicator decides that a person who is the subject of an inquiry is a permanent resident described in subsection 27(1), the adjudicator shall, subject to subsections (2.1) and 32.1(2), make a deportation order against that person. [Emphasis added.]
[23] Therefore, these sections and the procedure they establish presuppose that the administrative act granting landing is valid, but landing may be revoked for cause after an inquiry during which the appellant has the right to be represented by counsel pursuant to section 30 [as am. by S.C. 1992, c. 49, s. 19]. However, according to the respondent’s reasoning, the appellant would be a permanent resident for the purposes of being able to invoke the inquiry procedure and justify the removal order, but would no longer be a permanent resident at the end of the inquiry and would therefore not have a right of appeal pursuant to subsection 70(1), notwithstanding the fact that under section 36 [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 13], the adjudicator who orders the removal order is required to forthwith inform the appellant of the right of appeal pursuant to section 70.
[24] In other words, the respondent’s reasoning would lead to a system in which all persons contemplated by section 27 of the Act, including those convicted of a criminal offence before being granted landing (paragraphs 27(1)(a.2) [as enacted by S.C. 1992, c. 49, s. 16] and (a.3) [as enacted idem]) and those who were granted landing subject to terms and conditions but who contravened any of those terms or conditions (paragraph 27(1)(b)), would be permanent residents with a right of appeal as defined in section 70, except for those persons contemplated by paragraph 27(1)(e), where an adjudicator finds that landing was granted by reason of misrepresentations. Nothing in the procedure adopted by Parliament justifies this interpretation or conclusion for residents described in paragraph 27(1)(e).
[25] 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. If we were to accept the respondent’s reasoning that persons described in paragraph 27(1)(e ) do not have the right of appeal because they were not lawfully admitted, we would have to conclude that none of the persons or categories of persons listed in section 27 have the right of appeal despite the elaborate appeal procedure set out in section 70 of the Act. It is difficult to believe that Parliament wanted to appear to confer a right of appeal on permanent residents under section 70 on any ground of appeal that involves a question of law or fact, or mixed law and fact, but that using the artifice of a general definition in paragraph 2(n), it wanted to limit the category of appellants to only a few of the persons listed in section 27, even though section 70 specifically identifies those who are denied the right of appeal.
[26] Finally, as Mr. Justice Noël noted in Canada (Minister of Citizenship and Immigration) v. Seneca, [1998] 3 F.C. 494 (T.D.), at pages 507-508, subsection 10(2) of the Citizenship Act, R.S.C., 1985, c. C-29, the application of which is closely related to the Immigration Act, recognizes that a person who was granted landing by reason of misrepresentations was nonetheless lawfully admitted to Canada:
10. …
(2) A person shall be deemed to have obtained citizenship by false representation or fraud or by knowingly concealing material circumstances if the person was lawfully admitted to Canada for permanent residence by false representation or fraud or by knowingly concealing material circumstances and, because of that admission, the person subsequently obtained citizenship. [Emphasis added.]
[27] The wording of subsection 10(2) is not at all surprising when one understands that under the procedure set out in the Act, admission is lawful when landing is formally granted by an immigration officer and that it remains so in the instant case until the deportation order made against the appellant under section 32 becomes final.
[28] In my view, the concept of “permanent resident” found in section 70 is the same as that used in section 27. Thus read, understood and interpreted, this concept fits into a logical and fair system which is intended to establish whether landing granted at a point of entry to Canada was lawful.
[29] For these reasons, I am of the view that the Appeal Division of the Immigration and Refugee Board had jurisdiction to hear the appellant’s appeal against the removal order made against him. I would accordingly allow the appeal with costs, set aside the decision of the Judge of the Trial Division dated December 15, 1997 and refer the matter back to the Appeal Division of the Immigration and Refugee Board to hear the appeal brought by the appellant under subsection 70(1) of the Act. I would answer the certified questions as follows:
(1) Where an adjudicator finds that a person was granted landing by means of a misrepresentation of his or her marital status and the person appeals the adjudicator’s removal order pursuant to subsection 70(1) of the Immigration Act, may the Appeal Division dismiss the appeal for want of jurisdiction based on the adjudication record and the parties’ arguments concerning its jurisdiction without hearing the merits of the appeal? No
(2) Does the Appeal Division have jurisdiction under subsection 70(1) to entertain the appeal of a person who was landed on the basis of a fraudulent misrepresentation made by that person? Yes
(3) In particular, has a person who has been landed on the basis of a fraudulent misrepresentation been given “lawful permission to establish permanent residence in Canada” so as to be a “permanent resident” who can appeal under subsection 70(1) of the Immigration Act? Yes
(4) Does the Appeal Division have jurisdiction under subsection 70(1) to entertain the appeal of a person, whether or not the report on that person was made under paragraph 27(1)(e) or paragraph 27(2)(g) of the Act? Yes
Marceau J.A.: I agree.
Desjardins J.A.: I agree.
[1] Minister of Manpower and Immigration v. Brooks, [1974] S.C.R. 850, at pp. 871, 872 and 873; R v Secretary of State for the Home Dept., ex p. Jayakody, [1982] 1 All ER 461 (C.A.), at pp. 463-464.