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A-213-74
Joseph Fritz Edouarzin (Applicant) v.
Department of Manpower and Immigration (Respondent)
Court of Appeal, Pratte J., Hyde and St-Ger- main D.JJ.—Montreal, October 29 and 30, 1974.
Judicial review and appeal combined—Immigration— Deportation order—Applicant not deemed "bona fide non- immigrant"—Marriage of applicant after deportation ordered—Refusal of Immigration Appeal Board to give spe cial relief—Exclusion of evidence—Error in law—Reference back to Board for re-hearing—Immigration Appeal Board Act, ss. 15(1) and 23—Federal Court Act, s. 28.
Appeal combined with an application for judicial review from the decision of the Immigration Appeal Board dismiss ing an appeal from a deportation order and refusing to exercise its powers to give special relief under section 15(1) of the Immigration Appeal Board Act on compassionate and humanitarian grounds.
The applicant based his application on the ground that the Immigration Appeal Board refused to allow the applicant's wife to give evidence concerning a consultation which took place between the applicant and his wife and the immigra tion officer about the couple's then pending marriage, at which meeting, it was alleged, the immigration officer told them they could get married without causing a problem.
Held, the deportation order is quashed and the matter is referred back to the Board for re-hearing. The Immigration Appeal Board erred in law in refusing to allow the evidence which was not hearsay but admissible. If such error had not been made, it is possible that the Board's decision might have been different in granting special relief on humani tarian or compassionate grounds under section 15(1) of the Immigration Appeal Board Act.
APPLICATION. COUNSEL:
C. Hargreaves for applicant. Georges R. Léger for respondent.
SOLICITORS:
Hargreaves, Monette, Trudel & Leduc, Montreal, for applicant.
Deputy Attorney General of Canada for respondent.
The following is the English version of the reasons for judgment delivered orally by
PRATTE J.: On July 24, 1974 the Immigration Appeal Board affirmed a deportation order made against applicant by a Special Inquiry Officer in accordance with the Immigration Act, and ordered that this order should be carried out as soon as possible. Applicant challenges that decision in two ways: first, in the manner pro vided by section 28 of the Federal Court Act, and second, by appealing under section 23 of the Immigration Appeal Board Act. By an order of the Chief Justice made on September 17, 1974, the two actions were combined.
Applicant is of Haitian nationality. He arrived at Dorval on February 21, 1973 and applied for admission to Canada as a visitor. The immigra tion officer who interviewed him was of the opinion that he could not be admitted to Canada and advised a Special Inquiry Officer of this in accordance with section 22 of the Immigration Act. On February 23, 1973 the Special Inquiry Officer held an inquiry, at the conclusion of which he ordered applicant deported on the ground that he was not a "bona fide non-immi grant". That same day applicant filed a notice of appeal to the Immigration Appeal Board.
The case was heard by the Board on July 12, 1974. At the hearing it was established that on May 28, 1973, after the making of the deporta tion order, applicant married a fellow Haitian, a "landed" immigrant living in Montreal, and that a child of this marriage was born in Montreal in May 1974.
Applicant did not dispute the validity of the deportation order before the Board. He simply referred to the fact of his marriage and the birth of his child and asked that the Board exercise in his favour the extraordinary powers conferred on it by section 15(1) of the Immigration Appeal Board Act. Under section 15(1) the Board, where it dismisses an appeal against an order of deportation, may nevertheless quash the order
or suspend the execution thereof, on account of "the existence of compassionate or humani tarian grounds that in the opinion of the Board warrant the granting of special relief". The Board refused to grant special relief to appli cant, and in the reasons for its decision said the following in this regard:
On May 28, 1973, or three months after his arrival, appellant married a Haitian citizen, a landed immigrant, at a time when a deportation order had been issued against him. There was no question at the special inquiry of the appel lant's being acquainted with a compatriot living in Montreal, or of his being able to provide an address, and even less of his planning to be married.
His wife stated at the hearing of the appeal (p. 10 of the transcript) that she knew a deportation orrl ,-r had been made against her husband:
CHAIRMAN
You knew a deportation order had been made against him when you married him? Yes or no?
1. F. EDOUARZIN Yes.
Having deliberately broken the law, they then ask the Court to take pity on their actions. When two adult persons, in full knowledge of the situation, commit an act which affects their future, they must be ready to take the conse quences. Immigrants must obey and observe the laws and regulations of the country they wish to enter: immigrant status is a privilege, not a right.
The Court has previously used its discretionary powers in favour of a spouse, but in the instant case, it would not be justified in so doing; similarly in the cases of Tsemanakis (1970 (III) - IAC p. 133) and Bastas (30-10-70, unpublished, file No 69-1832), in which the Court declined to grant special relief, particularly as the Immigration Act and Immi gration Regulations already provide a method of resolving the situation.
Mrs. Edouarzin is able to provide for her child, since she was already employed before her marriage, and the govern ment makes a grant to mothers for day-care costs.
For these reasons the Court orders that the deportation order be carried out, in accordance with the provisions of s. 15(1) of the Immigration Appeal Board Act.
The reasons for the decision of the Board do not mention the fact that, in her testimony, the wife of applicant stated that, before getting mar ried, she and her husband went to see the immi gration officer who had ordered applicant
deported, and that officer told them they could get married without causing a problem.
The Board appears not to have mentioned this part of the testimony of applicant's wife in the reasons for its décision because it felt such evidence was inadmissible. This may be seen from the following observations made during the testimony of Mrs. Edouarzin before the Board:
CHAIRMAN
So, it was as a result of discussions with Mr. Meilleur' that you decided to marry this gentleman, in spite of the deportation order, is that right?
S. EDOUARZIN
He said we would have no problem, we could get married. That's what he told me.
CHAIRMAN
It seems rather strange that ...
Y.LEMAY 2
Madam Chairman, it seems very strange for such an answer to have been given. In view of the statement I think the best course, in order to make certain what was said, would be to have Mr. Meilleur here and ascertain what he
did say. '
CHAIRMAN
That is hearsay. I cannot admit that as evidence of what you suggest. I have absolutely nothing. Mr. Meilleur is not here.
As counsel for the respondent conceded, the statement of applicant's wife did not constitute hearsay, and therefore was admissible in evi dence. Consequently, the Board was incorrect in law in finding to the contrary. If such an error had not been made it is possible that the Board's decision would have been different. For this reason, I feel the Board's decision ordering the immediate execution of the deportation order should be quashed, and the case referred back to the Board for it to decide, after a re-hearing if it considers that advisable, whether grounds exist for granting applicant special relief under section 15(1) of the Immigration Appeal Board Act. I would order that the Board assume, in arriving at that decision, that the portion of the
I Mr. Meilleur was the immigration officer who ordered
applicant deported.
2 Mr. Lemay represented respondent.
testimony of applicant's wife to which I have referred constitutes admissible evidence.
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HYDE D.J. concurred.
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ST -GERMAIN D.J. concurred.
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