Date: 19980107
Docket: IMM-4138-96
BETWEEN:
BING QIAN LI,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
REED, J.:
[1] The applicant seeks an order setting aside an exclusion order that was issued against him on November 15, 1994. The order was consequent on an inquiry conducted by an adjudicator on October 31, 1994. The applicant also seeks to have a decision of the Appeal Division of the Immigration and Refugee Board, dated October 15, 1996, which considered the exclusion order, set aside.
[2] The applicant applied, on December 9, 1989, for permanent residence status as part of a family class, as a dependent of his mother. He indicated in that application that he was unmarried. The application was filled out on his behalf by another and he may not have been made aware of its terms. He was not interviewed by a visa officer before a visa was issued to him, on November 1, 1990.
[3] The applicant, in March of 1989, had developed an intimate relationship with Kun Hung Li. In June of 1989, upon learning that she was pregnant, they exchanged rings and agreed to marry. Whether he did in fact subsequently marry her is in dispute.
[4] In any event, on February 14, 1990, a baby was born to the applicant and his girlfriend (wife?). The applicant provided financial support to her and the son. They lived together as husband and wife, and she and the son now reside in the applicant's family home, with his mother, in China.
[5] When the applicant arrived at the port of entry in Canada, on March 27, 1991, in answer to questions, he stated that he was married and had a son. This led the interviewing officer to retain the applicant's landing documents and to the preparation of a report pursuant to paragraph 20(1)(a) of the Immigration Act. That report is dated July 4, 1991. An inquiry was subsequently conducted on October 31, 1994, and the exclusion order that is the subject of this application was issued.
[6] The applicant argues that the proper procedure was not followed with respect to the October 31, 1994, inquiry and, therefore, the Adjudication Division had no jurisdiction to hold the inquiry that resulted in the issuance of the exclusion order. As noted, a section 20 report had been prepared on July 4, 1991. The Notice of Inquiry that was sent to the applicant with respect to the October 31, 1994 inquiry, however, referred to it as a subsection 27(6) inquiry. Counsel for the applicant argues that there was no jurisdiction to proceed with the October 31, 1994, inquiry because a section 27 report had never been prepared.
[7] I am not persuaded that the defect has this result. The report of July 4, 1991, was made pursuant to paragraph 20(1)(a) of the Act. It alleged that the Applicant was a person described under paragraph 19(2)(d) of the Act. The applicant was provided with both the Notice of Inquiry, which referred to subsection 27(6) of the Act, and the paragraph 20(1)(a) report, which contained the allegations that were the subject of the inquiry. The adjudicator was under no misapprehension as to the nature of the inquiry he was conducting. He proceeded on the basis that it was a section 20 inquiry. The applicant was given notice of the grounds on which an exclusion order might issue, those contained in the section 20 report. He was given an opportunity to respond to the grounds alleged.
[8] The reference in the notice of inquiry to subsection 27(6) of the Act appears to have been a clerical error. No prejudice arose to the applicant as a result of that error. The defect in the notice was not raised by the applicant before the adjudicator. I am not persuaded that the defect in the notice can support a decision that the exclusion order should be set aside.
[9] An appeal of the exclusion order was taken to the Appeal Division of the Immigration and Refugee Board (the "Board"). The Board identified the issues before it as:
| a) whether the applicant was married at the time he was issued an immigrant visa; |
| b) in the event he was married, whether the appellant had a valid immigrant visa at the time he sought landing at the port of entry; |
| c) if he had a valid visa, whether the exclusion order is valid in law; and |
| d) whether compassionate or humanitarian considerations exist pursuant to paragraph 70(3)(b) of the Act which warrant that the appellant should not be removed from Canada. |
[10] The Board determined that the applicant was married at the date of his arrival in Canada. It relied on his several statements that this was the case, rather than on a "certificate of unmarriage" from China that was filed in evidence:
| " During the appellant's examination at the port of entry on July 4, 1991, he swore a statutory declaration before an immigration officer that, prior to his arrival in Canada on March 27, 1991, he was married in the summer of 1989 and had a one-year-old son. The appellant had the benefit of an interpreter when he signed the statutory declaration. His later statements are self-serving and carry less weight. In his application for permanent residence in Canada, the appellant indicated he was unmarried. During his hearing, he testified that he and Ms. Li had agreed to marry, had exchanged rings and, but for the death of his father and his financial difficulties, would have married. The appellant, however, failed to indicate in box nine of his application for permanent residence regarding his marital status that he was engaged." |
[11] Thus, the Board's decision was that the applicant was issued a visa on the basis of the non-disclosure of a material fact (that he was engaged) and the visa was therefore invalid. In addition, the application form that the applicant signed instructed him to report any changed circumstances, regarding his marital status or dependents (e.g. the birth of a son), that might occur after his application had been filed but before he left China. The applicant did not do so.
[12] Two certificates of "unmarriage" were filed. The first relates to the period of time before October 11, 1989. The applicant did not leave China until 1991, so that certificate does not lead to a conclusion that he was not married before leaving China. The second certificate covers the period up to March, 1991. With respect to that "certificate of unmarriage" the Board did not accord it weight because it concluded that all the certificate showed was that the marriage was not registered, not that it had not taken place:
| "The excerpt from the "Marriage Law of the PRC" is for the years 1979-1982. There is no expert evidence regarding the state of the marriage law in China at the time the appellant allegedly married, nor is there any evidence of whether the non-registration of a marriage in China is procedural or whether it affects the substantive validity of the marriage. The appellant had introduced Ms. Li as his wife to the people in his village. They had lived together as husband and wife and have a son. During his testimony, the appellant referred to Ms. Li as his wife." |
[13] The Board determined that the applicant did not have a valid visa when he entered Canada, and therefore the Board had no jurisdiction to hear the appeal. It continued, however, to say that if it did have jurisdiction, its decision would be that the visa was invalid because material information had not been disclosed and this had foreclosed inquiry by immigration officials into the qualification of his dependents. In addition, there were no humanitarian and compassionate grounds for allowing the applicant to remain in Canada.
[14] Counsel for the applicant's main argument is that the Board misconstrued the evidence because it ignored the "certificates of unmarriage" He argues that the applicant did not completely understand, when he said he was married, that he was not legally married. The applicant has a grade six education and was answering questions through an interpreter.
[15] The Board considered all the evidence before it. It weighed that evidence. It did not ignore the "certificates of unmarriage". It simply found the applicant's statements to the port of entry officers, to the adjudicator, to a legal aid lawyer in August, 1991, that he was married, carried more weight. This was especially so in the light of the paucity of information concerning China's marriage law that was before the Board.
[16] For the reasons given, grounds do not exist to set aside either the exclusion order or the decision of the Board. The orders sought pursuant to this judicial review application, therefore, will not issue.
"B. Reed"
Judge
Edmonton, Alberta
January 8th, 1998.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: IMM-4138-96
STYLE OF CAUSE: Bing Qian Li -v-
Minister of Citizenship
and Immigration
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: January 7th, 1998
ORDER AND REASONS FOR ORDER BY: Reed, J.
DATED: January 8th, 1998
APPEARANCES:
Robert W. Lee
Duncan and Craig for the Applicant
Douglas Titosky
Department of Justice for the Respondent
SOLICITORS OF RECORD:
Robert W. Lee
Duncan and Craig
Edmonton, Alberta for the Applicant
George Thomson
Deputy Attorney General of Canada for the Respondent