A-69-71
Narain, Son of Muniappa (Appellant)
v.
Minister of Manpower and Immigration
(Respondent)
Court of Appeal, Pratte J., Hyde and Choquette
D.JJ.—Ottawa, June 27, 28, 1974.
Immigration—Admission to Canada as visitor—Applica-
tion for permanent residence refused—Denial of refusal on
further application—Deportation for untruthful answer—
Immigration Act, R.S.C. 1952, c. 325, ss. 5, 20, 23, 28—
Immigration Regulations s. 34(3)(f); An Act respecting cer
tain Immigration Laws and Procedures, S.C. 1973-74, c. 28.
Appellant, a native of Fiji, admitted to Canada as a
visitor, applied for permanent residence under section
34(3)(f) of the Immigration Regulations, Part I. He was
advised by an immigration officer at Calgary that his
application could not be granted. In later discussion with an
immigration officer at New Westminster, B.C., he answered
negatively the question whether he had "been refused
admission to ... Canada". The last immigration officer
reported his opinion that the appellant could not be granted
admission to Canada for permanent residence. The Special
Inquiry Officer made a deportation order which was
affirmed by the Immigration Appeal Board.
Held, dismissing the appeal, that the retroactive amend
ments to the Immigration Act by S.C. 1973-74, c. 28,
rendered untenable the appellant's contention that he was
not a person "seeking to come to Canada" and consequently
not a person who could be examined under section 20(1)
and deported under section 20(2). The action of the immi
gration officer at Calgary, in telling the appellant to leave
the country, instead of reporting him to a Special Inquiry
Officer, constituted refusal of admission to Canada. This
was understood by the appellant. The false answer given
during the interview at New Westminster gave ground for
deportation under section 20(2) of the Act. It was unneces
sary that the untrue answer was given with an intent to
mislead or that it was such as to conceal a ground of
deportation. It was enough that the question was not entirely
irrelevant to an examination for the purpose of determining
admissibility into Canada.
Leiba v. Minister of Manpower and Immigration [1972]
S.C.R. 660, considered.
APPEAL.
COUNSEL:
Y. A. G. Hynna for appellant.
E. R. Sojonky for respondent.
SOLICITORS:
Gowling and Henderson, Ottawa, for
appellant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
delivered in English by
PRATTE J.: This is an appeal from a decision
of the Immigration Appeal Board dismissing an
appeal from a deportation order made against
the appellant.
In 1968, the appellant, a native of Fiji, who
was then legally in Canada as a visitor, applied
to be admitted for permanent residence under
section 34(3) of the Immigration Regulations,
Part I. He was examined by an immigration
officer who, pursuant to section 23 and section
20(2) of the Immigration Act, (R.S.C. 1952, c.
325) made a report to a Special Inquiry Officer
stating that, in his opinion, the appellant could
not be granted admission to Canada for perma
nent residence because.
1. he did not meet the requirements of para
graph (f) of section 34(3) of the Regulations,
and
2. he had not answered truthfully the ques
tions that had been put to him by the immigra
tion officer.
An inquiry was thereafter held at the conclusion
of which the Special Inquiry Officer decided
that the appellant could not be admitted to
Canada for the two reasons mentioned in the
report of the immigration officer. As required
by section 28(3), the Special Inquiry Officer
made a deportation order against the appellant.
The Immigration Appeal Board dismissed the
appellant's appeal from that order finding that
the appellant could not legally be admitted for
permanent residence for the two reasons that I
have already mentioned.
Before this Court, counsel for the respondent
stated that he did not oppose this appeal in so
far as it is directed against the finding of the
Board that the appellant did not meet the
requirements of section 34(3)(f) of the Regula
tions. He acknowledged that, in reaching its
conclusion on that point, the Board relied on
facts that had not been legally proved. He
argued, however, that this appeal should never
theless be dismissed on the ground that the
Board did not err in law in deciding that the
appellant's failure to answer truthfully questions
put to him by an immigration officer was a
sufficient ground for deportation.
The sole question for determination on this
appeal, therefore, is whether there is any error
of law in the decision of the Board with respect
to that second ground of deportation.
The evidence with regard to the allegation
that the appellant did not answer truthfully
"questions put to him by an immigration offic
er" may be summarized briefly:
1. on October 7, 1968 , the appellant, who was
then in Canada as a visitor, applied to be
admitted for permanent residence at the
Immigration Office in Calgary. He was exam
ined by an immigration officer who told him
that his application could not be granted and
gave him a letter requesting him to leave
Canada voluntarily;
2. the appellant left Calgary for the West
Coast with the intention of returning to Fiji.
While in Vancouver, he met some friends
who suggested that he should make another
application for permanent residence at the
local Immigration Office. On October 17,
1968, the appellant went to the Immigration
Office in New Westminster to get an applica
tion form and went back home to complete it.
The form included the following question to
which he answered "No":
Have you or has any one of the persons included in this
application ever
(d) been refused admission to or deported from Canada
or any other country.
Having completed the form, the appellant
returned to the Immigration Office. He
handed it over to Mr. Evans, an immigration
officer, who had him sign the solemn declara-
tion printed on the last page of the form,
whereby the appellant attested that the infor
mation given by him in the application was
true. Mr. Evans thereafter examined the
appellant. During that examination, the appel
lant did not disclose that he had previously
applied in Calgary. It is important to note,
however, that, apparently, no question was
put to him on that subject.
3. Immigration officer Evans subsequently
learned from officers of the Department of
the appellant's previous application in Cal-
gary. The appellant was then summoned for a
second interview, which was related as fol
lows by Mr. Evans in his testimony before the
Special Inquiry Officer:
Q. Mr. Evans, the last paragraph of Exhibit "A" alleges
that Mr. Narain did not answer truthfully questions put
to him as required by subsection (2) of Section 20 of
the Immigration Act. Would you please explain how
you arrived at this conclusion?
A. Subsequent to taking the application, information
came to our office as evidence that Mr. Narain had
previously filed a formal application at our office in
Calgary, Alberta. As this was a rather grave piece of
evidence to be considered, I asked Mr. Narain to again
come back to the office for a re-examination and fill
an application as we had no previous knowledge of
this application on file in Calgary. Now, I am used to
dealing with persons from countries in Asia, inasmuch
as I find Mr. Narain from Fiji where they are gentle
people, are usually a little nervous when they come
into a Government office and because of the nature of
the questioning involved, wished to be sure that he
was at ease and again to the best of my ability saw to it
that he understood the nature of the questions directed
to him. I had another officer sit in with me while I
reviewed his file with Mr. Narain, the second officer is
also an experienced officer and assisted in making Mr.
Narain feel at home. I asked him if he had filed an
application at our Calgary office, he answered that he
had gone to our Calgary office with his cousin, I don't
remember the gentleman's name, to file an application
for residence in Canada and Mr. Narain told me he had
received a hostile reception and that no application
was processed nor accepted and he was told in no
uncertain terms to go back to New Westminster and
make his application there. Now, as this was in direct
contradiction to the information on file, I wanted to
clarify with him further. I showed him a form Imm.
1008 "Application for Permanent Residence by an
Applicant in Canada" asked him if he recognized the
form and if he had filled out this form, which he
denied. Showed him form Imm. 1000 asked him if the
officer had filled out a form of this nature, he also
denied this. Asked him if he had received a letter
refusing his application at which time he was given the
date on which to take his departure from Canada. He
denied ever having received such letter. This was to
the best of my knowledge, put to Mr. Narain as there
is no doubt in his mind what I was trying to determine
on each case. Was told that no application had been
accepted or followed at the Calgary office. As this was
in direct conflict with documentary proof on file, I had
no alternative but to conclude the re-examination and
file a Section 23 Report.'
It is after that second interview that Mr.
Evans reported to the Special Inquiry Officer
that the appellant "did not answer all questions
truthfully as he denies he previously filed an
application for permanent residence by an appli
cant in Canada at our office in Calgary, Alberta,
contrary to documentary evidence on our file".
That report led to the Special Inquiry at the
conclusion of which the Special Inquiry Officer
made the deportation order which read in part
as follows:
... I have reached the decision that you may not come into
Canada or remain in Canada as of right, in that:
iii) you are a member of the prohibited class of persons
described in paragraph (t) of section 5 of the Immigration
Act, in that you did not comply with the requirements of
the Immigration Act or Regulations, by reason of the fact
that:
c) you did not answer truthfully all questions put to you
by an Immigration officer at an examination as required
by subsection (2) of Section 20 of the Immigration Act.
I hereby order you to be detained and to be deported.
The part of the decision of the Immigration
Appeal Board which relates to that ground of
deportation may be easily summarized. The
Board first quoted excerpts from the evidence
relating to two subjects:
(a) the contradictory versions given by Mr.
Evans and the appellant of their second con
versation; and
' The appellant, when he testified before the Special
Inquiry Officer and the Immigration Appeal Board, gave a
different version of that conversation with Mr. Evans. He
said that he had then readily admitted all the facts relating to
his first application in Calgary.
(b) the admission made by the applicant
before the Board that he knew that he had
been refused admission to Canada in Calgary
when he completed the application form in
which he denied that fact.
After these references to the evidence, the
Board concluded as follows:
There can be no doubt that paragraph (iii)(c) of the deporta
tion order is supported by the evidence adduced at the
inquiry. Whatever his motives or his understanding, Mr.
Narain failed to disclose to Immigration Officer Evans the
fact that he had been refused admission to Canada in
Calgary, and that he did this knowingly. The question is
material to his admissibility.
In order to understand the various submis
sions put forward by counsel for the appellant it
is necessary to quote section 20 of the Immigra
tion Act which empowers a Special Inquiry
Officer to order the deportation of a person who
seeks admission to Canada on the ground that
he failed to tell the truth to an immigration
officer. It reads as follows:
20. (1) Every person, including Canadian citizens and
persons with Canadian domicile, seeking to come into
Canada shall first appear before an immigration officer at a
port of entry or at such other place as may be designated by
an immigration officer in charge, for examination as to
whether he is or is not admissible to Canada or is a person
who may come into Canada as of right.
(2) Every person shall answer truthfully all questions put
to him by an immigration officer at an examination and his
failure to do so shall be reported by the immigration officer
to a Special Inquiry Officer and shall, in itself, be sufficient
ground for deportation where so ordered by the Special
Inquiry Officer.
Counsel for the appellant first submitted that
the appellant, who was legally in Canada as a
visitor where he applied to be admitted for
permanent residence, was not a person "seeking
to come into Canada" and that, consequently,
he was not a person who could be examined
under section 20(1) and could be deported
under section 20(2). It was intimated to counsel
at the hearing that this contention appeared to
be untenable in view of the adoption by Parlia
ment in July 1973 of the retroactive provisions
of "An Act respecting -certain immigration laws
and procedures". (S.C. 1973-74, c. 28.) After
further consideration, I am still of the same
opinion.
The second argument put forward on behalf
of the appellant was that the examination of the
appellant by Immigration officer Evans at New
Westminster was illegal and that, because of
that, the appellant's failure to tell the truth
during that examination was not a ground for
deportation. According to counsel, the illegality
of that examination arose from the fact that it
would never have taken place had the immigra
tion officer to whom the appellant had submit
ted his first application in Calgary done his duty
and reported the appellant to a Special Inquiry
Officer. This submission, in my view, is ill-
founded. Even if it can be said, on the authority
of the decision of the Supreme Court of Canada
in Leiba v. The Minister of Manpower and
Immigration 2 , that the first immigration officer
who interviewed the appellant in Calgary should
have reported him to a Special Inquiry Officer
instead of telling him to leave the country, the
fact remains that the appellant, when he made a
second application in New Westminster, had to
be examined by an immigration officer under
section 2 - 0(I) ân. — ha�C to answer truthfully all
questions put to him during that examination.
The irregularity committed by the immigration
officer in Calgary did not vitiate what was done
by the other immigration officer in New
Westminster.
Counsel also argued that the Board's decision
was erroneous in law because it could not be
inferred from the evidence that the appellant
had voluntarily misled the immigration officer
on a question material to his admissibility. The
short answer to this contention is that, under
section 20(2), any untrue answer given to an
immigration officer during an examination is a
possible ground for deportation. It is not neces
sary that the untrue answer be given with an
intention to mislead. It is not necessary, either,
that the false answer be such as to conceal a
ground of deportation; it is sufficient, in this
respect, that the question to which an untrue
answer is given be of a kind that is not entirely
irrelevant to an examination held for the pur-
2 [1972] S.C.R. p. 660.
pose of determining the admissibility of a
person to Canada.
Finally, counsel submitted that the Board had
erred in law in finding that the appellant had
answered untruthfully when he had declared
that he had not been refused admission to
Canada. Counsel pointed out that the immigra
tion officer who rejected the appellant's first
application in Calgary did not have, under the
Act, the authority to refuse admission. Accord
ing to counsel, the appellant had not been legal
ly refused admission to Canada and he, there
fore, had told the truth when he had denied
having been so refused. If, under the Act, the
expression "to be refused admission to Canada"
had a precise meaning, that argument would be
difficult to refute. However, that expression is
not found in the Act and the Regulations. More
over, the Act and the Regulations confer on no
one the authority to refuse admission to
Canada. The only authority of an immigration
officer is to grant admission or to report the
person seeking admission to a Special Inquiry
Officer; and the only authority of the Special
Inquiry Officer, if he finds that the person is not
admissible, is to issue a deportation order. How
ever, many decisions rendered by our Courts on
this subject show that it is not an uncommon
practice for an immigration officer who is of the
opinion that an applicant is not admissible to tell
him so and to give him the opportunity to leave
the country voluntarily and, in so doing, avoid
the risk of having a deportation order made
against him. When this happens, I am of the
view that, in the everyday meaning of the
expression, the applicant has been "refused
admission to Canada". Furthermore, the appel
lant, in his evidence, admitted his understanding
that he had been so refused.
For these reasons, I would dismiss the appeal.
* *
HYDE D.J. concurred.
* * *
CHOQUETTE D.J. concurred.
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.