Date: 19990312
Docket: IMM-5430-97
BETWEEN:
ENRICO VILLANUEVA VALDEZ
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
REED J.
[1] This is an application for judicial review of a decision of the Immigration Appeal Division dated November 10, 1997, dismissing the appeal of a removal order issued on September 29, 1993. The removal order was issued on the ground that the applicant was not able to satisfy the port of entry officer or, subsequently, the immigration adjudicator that he and his dependants met all the requirements of the Immigration Act, R.S.C. 1985, c. I-2, and the Immigration Regulations, 1978, SOR/78-172. A requirement set out in section 12 of the Regulations.
The applicant, a citizen of the Philippines, arrived in Canada on September 12, 1992, as an accompanying dependant of his father, who had been sponsored by the applicant's brother. The applicant was 23 years old upon arrival in Canada, although the initial application was processed at a time when the applicant qualified as an accompanying dependant. The applicant had signed a statutory declaration in 1990, before a visa officer in Manila, that he was unmarried and had no children. The declaration also stated that he would advise the Canadian embassy if that situation changed before his departure for Canada. The father also signed a statutory declaration in March 1992, when he picked up his visa, that his son (the applicant) was unmarried and had no children.
Upon arrival in Canada, the applicant told the port of entry officer that he, in fact, had 3 children, born on April 7, 1988, August 11, 1990, and March 22, 1992. He was not married, but had been living with his common law wife, the mother of his three children.
This gave rise to a section 20(1)(a) report and a referral to a senior immigration officer. The report stated that the port of entry officer was of the opinion that it would be contrary to the Act or Regulations to grant the applicant admission because he could not comply with the requirements of the Immigration Act. He could not establish at the port of entry that his dependants met the requirements of the Act and Regulations for the issuance of a visa. The report also referred to the fact that the applicant had not answered truthfully the questions put to him when applying for his visa and thus had offended subsection 9(3) of the Act.
An adjudicator was directed to conduct an inquiry as a result of these allegations. The adjudicator dismissed the allegation that the applicant was in violation of section 9(3), relying on the Federal Court of Appeal decision in Kang v. Canada (Minister of Employment and Immigration), [1981] 2 F.C. 807 (C.A.). The adjudicator did conclude, however, that the allegations with respect to section 12 of the Regulations were valid. The adjudicator held that Mr. Valdez's obligation under s.12 of the Regulations was to establish at the time of his entry into Canada that he and his dependants were admissible, i.e. that they met all the requirements of the Act and Regulations.
The applicant appealed the adjudicator's decision to the Immigration Appeal Division (IAD). The hearing of this appeal took place on December 11, 1995, September 20, 1996, and February 21, 1997. The decision was released on November 10, 1997, upholding the decision of the adjudicator. It is this decision which is now under review.
It is the applicant's contention that he was never specifically told which requirements of the Act and Regulations he had failed to meet. He submitted that the s.20(1)(a) report was too vague a basis for a proper inquiry. He also submitted that he did not need to prove his admissibility or that of his dependants before the port of entry officer. It is his argument that the de novo nature of the IAD hearing is such that the IAD could substitute a finding of admissibility for the decisions of a contrary nature that had been made by the immigration officers, based on evidence obtained by the applicant after the officers' decisions had been made but before the hearing of his appeal before the IAD.
These arguments are without merit. It is not credible that the applicant did not know the basis of the inquiry or the decisions that were made. The evidence given to the IAD was that he had purposely not disclosed the existence of his children when he applied for a visa in the Phillippines, he had been advised by his brother who, acting on the advice of a Canadian lawyer, had told him not to disclose their existence until after he was in Canada.
The IAD rejected the applicant's appeal, stating that Regulation 12 required him to show, at the port of entry, that his dependants met all the requirements of the Act and the Regulations, and that by failing to disclose the existence of his dependant children, when he applied for a visa in the Phillippines, his own action had made it impossible for him to do so:
Section 12 mandates that he is required to show that these dependants meet all the requirements of the Act and Regulations, not the least of which are the medical requirements which bring into play a medical examination and the opinion of two medical officers. Even without the oral evidence of the immigration officer who wrote the section 20(1)(a) report, it would be obvious that the appellant could not have satisfied any of the requirements of the Act or Regulations regarding these children.
The decision is clearly correct in law and is fully supported by the facts that were before the IAD.
Counsel for the applicant argued that the IAD erred in not relying on evidence collected after the adjudicator's decision as relevant to the appeal of that decision before it (documents proving the relationship of the children to the applicant and medical assessments of them), and in not declaring him admissible on the basis of that evidence. Counsel cited decisions of the IAD on sponsorship applications, in which evidence brought into existence subsequent to the visa officer's decision under appeal had been accepted. The IAD's jurisdiction in such cases is different from that in this case. The sponsorship cases are not applicable to this applicant's situation. Indeed, if counsel's argument were correct the whole procedure set out in the Immigration Act would be rendered futile since a potential immigrant would never have to prove admissibility prior to arrival in Canada, or at any time prior to the appeal to the IAD.
While the IAD may make use of what I have called newly created evidence in sponsorship cases, and when making assessments under its equitable jurisdiction, this is not the case when determining the correctness of an adjudicator's decision on a question of law or fact. In this last case, it is the evidence existing at the date of the adjudicator's decision that is relevant.
In addition, even if the Board could entertain newly created evidence and give the type of decision the applicant seeks in this case, the new evidence that has been produced does not support the applicant's claim that he has proven that he meets all the requirements of the Act. The medical assessments of his children that are contained in the materials are not official assessments and, indeed, one suggests that one of the children may not be medically admissible. Thus, the argument that the IAD should have considered this evidence, and made its own determination of admissibility, is a pointless argument. I should note that, Regulation 12(b), which requires immigrants to disclose to the port of entry officer any relevant fact not previously disclosed, is not rendered nugatory by the above consequences. There can be many previously undisclosed facts, or changed circumstances, that do not result in a prospective immigrant being unable to satisfy the conditions of the Act and Regulations, at the point of entry.
Considerable reference was made to the Flores case, a decision in which the applicant for permanent residence did not disclose the existence of a child that was born while his application was being processed. He had disclosed the existence of two other children, and they were properly documented in his visa application. On appeal to the IAD of the decision refusing Mr. Flores admission, the respondent proposed that the appeal be dealt with "in chambers", and the IAD make an order pursuant to paragraph 74(1)(b) directing that Mr. Flores be examined as a person seeking admission at a port of entry. There was evidence that the previously non-disclosed dependant child had now passed the required official medical assessment. The IAD was asked by the respondent Minister to allow the appeal pursuant to paragraph 73(1)(a). This was done.
The IAD in the present case, in discussing the Flores case, wrongly characterized that decision as a consent decision based on the IAD's equitable jurisdiction. I am persuaded that the IAD misapprehended its authority when it signed a s. 73(1)(a) order in the Flores case, although the same result could have been obtained by an exercise of its equitable jurisdiction. The IAD cited the wrong statutory authority in rendering its decision. The IAD was correct in saying that consent judgments have no precedential value.
In exercising its equitable jurisdiction, in the present case, the IAD found that the applicant had deliberately tried to circumvent Canada's immigration laws, that he did so with the full co-operation of his family. The panel found that the appellant had no one in Canada dependant on him, since his spouse and three children live in the Philippines. The panel acknowledged that jobs may be scarce in that country, and salaries low, but noted that neither he nor his children were experiencing any particular hardship now which permitting him to remain in Canada would be likely to alleviate.
Accordingly, the IAD held that there was no reason why the appellant should not be removed from Canada pursuant to a valid exclusion order.
The IAD decision has not been shown to be in error. For the reasons given, this application is dismissed.
"B. Reed"
J.F.C.C.
TORONTO, ONTARIO
March 12, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-5430-97
| STYLE OF CAUSE: ENRICO VILLANUEVA VALDEZ |
and -
| THE MINISTER OF CITIZENSHIP |
| AND IMMIGRATION, |
DATE OF HEARING: WEDNESDAY, MARCH 10, 1999
PLACE OF HEARING: TORONTO, ONTARIO
| REASONS FOR ORDER BY: REED J. |
DATED: FRIDAY, MARCH 12, 1999
APPEARANCES: Mr. Peter Haber
For the Applicant
Ms. Marianne Zoric
For the Respondent
SOLICITORS OF RECORD: Peter Haber
Barrister & Solicitor
Suite 301, Carlton on the Park
120 Carlton Street
Toronto, Ontario
M5A 4K2
For the Applicant
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990312
Docket: IMM-5430-97
Between:
| ENRICO VILLANUEVA VALDEZ |
| Applicant |
- and -
| THE MINISTER OF CITIZENSHIP |
| AND IMMIGRATION, |
Respondent
REASONS FOR ORDER