Date: 20001211
Docket: IMM-174-00
BETWEEN:
PUI YO LAI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
DAWSON J.
[1] On this application for judicial review Ms. Pui Yo Lai challenges the decision of an immigration officer refusing Ms. Lai landing in Canada as a permanent resident. The decision before the Court is contained in a report made under paragraph 20(1)(a) of the Immigration Act, R.S.C. 1985, c. I-2, as amended ("Act") by which an immigration officer reported that in her opinion it would be, or may be, contrary to the Act to grant admission or otherwise allow Ms. Lai into the country because she was a member of the inadmissible class described in paragraph 19(1)(h) of the Act, a person who was not, in the opinion of the immigration officer, a genuine visitor.
[2] Ms. Lai asserts that because she was in possession of a valid immigrant visa and record of landing form, the immigration officer's decision was tantamount to an improper refusal to allow her landing. The relevant facts are as follows.
THE FACTS
[3] Ms. Lai is a citizen of Portugal born in Macau, who resided in Hong Kong. In September of 1997, while visiting Toronto, Ms. Lai met Raymond Woo. After her return to Hong Kong, a relationship developed between Ms. Lai and Mr. Woo. They were engaged in January of 1999 when Mr. Woo visited Ms. Lai in Hong Kong.
[4] Mr. Woo then returned to Canada, and took steps to sponsor Ms. Lai to Canada as a permanent resident on the basis that she was his fiancee. In May of 1999, Ms. Lai arrived in Canada and began living with Mr. Woo. After returning briefly to Hong Kong in June of 1999 to complete immigration and medical checks, Ms. Lai returned to live with Mr. Woo in Canada. They married in Canada on July 24, 1999.
[5] On August 30, 1999, an immigrant visa and record of landing was issued to Ms. Lai by the Canadian Consulate General in Hong Kong. The visa was valid until April 16, 2000 and imposed some conditions which are not at issue.
[6] Ms. Lai continued to reside in Toronto with Mr. Woo. On November 19, 1999, an argument ensued between Ms. Lai and Mr. Woo, during which Mr. Woo was said to have assaulted Ms. Lai. As a result, Ms. Lai left Canada for Hong Kong.
[7] While in Hong Kong, Ms. Lai received from the Canadian Consulate General a letter dated November 29, 1999 which stated that her application for permanent residence was closed because Mr. Woo had withdrawn his sponsorship. The letter also stated that the immigrant visa previously issued was no longer valid and should be returned to the issuing office within 30 days.
[8] On December 30, 1999, Ms. Lai attempted to enter Canada but was refused entry. Ms. Lai stated that she initially told the immigration officer she was entering as a visitor to see her husband and was planning to stay for 60 days. She said that when she was denied entry, she immediately produced her immigrant visa to seek entry.
[9] The immigration officer's interview notes, which were supported by the immigration officer's affidavit and which were said to be made contemporaneously with the officer's interview of Ms. Lai, record that Ms. Lai advised the immigration officer that she was entering as a visitor, and that she would stay on a two-month visit following which she would return to Hong Kong. The notes reflect that Ms. Lai initially stated that her husband's sponsorship application was still "being processed"; much later in the interview she admitted that she had the immigrant visa with her. Ms. Lai indicated that she was aware that her husband had cancelled his sponsorship application, but claimed that she was in Canada to patch things up with her husband. Ms. Lai is also said to have stated that she brought the immigrant visa with her to return to her husband. The notes do not reflect any request on Ms. Lai's part to be landed.
ANALYSIS
[10] In my view, this application for judicial review must fail. Even if on arrival in Canada Ms. Lai did, after being refused entry as a visitor, request landing, no decision was made concerning landing. Ms. Lai's immigrant visa was not valid. She had been notified of its revocation prior to her departure from Hong Kong to Canada, and she had been notified that she was required to return the visa. It follows, in my view, that on receipt of that information Ms. Lai was obliged either to return the visa to the Canadian Consulate General in Hong Kong or to move within the appropriate time frame to set aside the decision revoking the visa.
[11] On arrival at the port of entry, Ms. Lai was not in possession of a valid immigrant visa and hence was not in compliance with subsection 9(1) of the Act. No decision could be made in that circumstance to grant landing, nor did the immigration officer have authority under section 9 of the Act to issue an immigrant visa to Ms. Lai. I do not accept the submission advanced on Ms. Lai's behalf that the issuance of a report under subsection 20(1) of the Act was tantamount to a refusal to allow landing. To accept that submission would, in my view, require the port of entry officers to determine whether the decision to revoke the immigrant visa was valid. I cannot conclude that such determination was within the scope of authority granted to them under the Act.
[12] Counsel for Ms. Lai did not challenge either in his written or oral submissions the officer's decision to refuse the applicant entry as a visitor.
[13] The application for judicial review will therefore be dismissed.
[14] After the conclusion of the oral argument, there was some discussion concerning the issue of certification of a question. Counsel may file submissions concerning the certification of a serious question within ten days of the date of these reasons, after first disclosing their respective positions on the issue to one another.
[15] Judgment dismissing this application for judicial review will issue following consideration of any submissions provided to the Court with respect to certification.
"Eleanor R. Dawson"
Judge
Ottawa, Ontario
December 11, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-174-00 |
| STYLE OF CAUSE: LAI, PUI YO |
Applicant
| - and - |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
| DATE OF HEARING: WEDNESDAY, NOVEMBER 15, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
REASONS FOR JUDGMENT
| AND JUDGMENT BY: DAWSON J. |
| DATED: MONDAY, DECEMBER 11, 2000 |
| APPEARANCES BY: Mr. Edward F. Hung |
| For the Applicant |
| Mr. James Brender |
| For the Respondent |
| SOLICITORS OF RECORD: Edward F. Hung |
Barrister & Solicitor
1033 Bay Street, Suite 319
Toronto, Ontario
M5S 3A5
| For the Applicant |
Morris Rosenberg
| Deputy Attorney General of Canada |
| For the Respondent |
FEDERAL COURT OF CANADA
Date: 20001211
Docket: IMM-174-00
BETWEEN:
| LAI, PUI YO |
Applicant
| - and - |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
| REASONS FOR JUDGMENT |