Judgments

[1993] 2 F.C. 408

A-916-90

Minister of Employment and Immigration (Appellant)

v.

Ireland Pizzaro De Decaro (Respondent)

Indexed as: Canada (Minister of Employment and Immigration) v. De Decaro (C.A.)

Court of Appeal, Pratte, Marceau and Létourneau JJ.A.—Montréal, January 19; Ottawa, March 1, 1993.

Citizenship and Immigration — Exclusion and removal — Inadmissible persons — Appeal from decision of Immigration and Refugee Board upholding Adjudicator’s decision granting respondent permanent residence — Respondent granted immigrant visa as “accompanying dependant” — Husband died before coming to Canada — Respondent found to be inadmissible as no longer “accompanying dependant” under Immigration Regulations, s. 2(1) — Requirements for issuance of visa under Regulations, s. 12 not met — Meaning of “valid” visa — Difference of wording between English and French versions of s. 12 — Jurisdiction of Appeal Division under Act, ss. 70, 73.

This was an appeal from a decision of the Appeal Division of the Immigration and Refugee Board upholding an Adjudicator’s decision granting the respondent leave to enter Canada and establish permanent residence. In October 1988 a visa officer issued an immigrant visa to the respondent’s husband and to herself and their daughter as accompanying dependants. The husband died one month later before coming to Canada. At an inquiry, the case presenting officer took the position that she was deemed to be inadmissible to Canada in that one of her children was inadmissible and because she was no longer an accompanying dependant due to her husband’s death. The Adjudicator ruled that the respondent held a valid immigrant’s visa since her visa had been neither revoked by the proper authorities nor automatically invalidated by her husband’s death. That decision was sustained by the Appeal Division of the Immigration and Refugee Board. The issue was whether the respondent met the requirements for the issuance of a visa and had therefore the right to be admitted to Canada.

Held (Marceau J.A. concurring in part), the appeal should be allowed.

Per Pratte J.A.: It is clear from the definition of “accompanying dependant” in subsection 2(1) of the Immigration Regulations, 1978 that the visa mentioned therein is issued solely to enable its holder to accompany or follow another person to Canada. The holder of such a visa who applies for admission to the country without “the other person” accompanying or preceding him into Canada does not meet the requirements of subsection 9(1) of the Immigration Act any more than a holder of a visitor’s visa who applies for admission as an immigrant does. Both did obtain a visa, but in each case the visa was conditional and met the requirements of section 9 only if the condition imposed was fulfilled when the holder of the visa applied for admission to Canada. After her husband’s death, the respondent became inadmissible by virtue of section 12 of the Regulations. She did not discharge the burden of proving not only that she was eligible but also that she met all the conditions for obtaining a visa. The respondent had not fulfilled the duty imposed on her by section 12 of the Regulations to prove that she met all the requirements for a visa to be issued. Even assuming that in practice it is impossible for an immigrant to show in an examination at a port of entry that he meets the conditions for issuance of a visa other than the one he already holds, it cannot be concluded that this provision is devoid of meaning or effect since it is easy to conceive of cases in which the immigrant could establish that, despite the changed circumstances, he still meets the conditions for issuance of the visa he has already obtained. As to whether the Court should make the decision the Appeal Division ought to have made under paragraph 52(c) of the Federal Court Act, it must be decided whether the respondent, when she was the subject of the report under paragraph 20(1)(a) of the Act, was in possession of a “valid” visa. Before her husband’s death, the respondent held a valid visa even though the visa was a conditional one; however, after that death it was impossible for the condition attached to the visa to be performed, so that the visa then ceased to have any validity. It was no longer a “valid” visa. The case was therefore one in which the Court could make the removal order which the Appeal Division should have made.

Per Marceau J.A. (concurring in part): The Immigration Act and Immigration Regulations, 1978 do not make use of either the concept of a valid visa which can become invalid in certain circumstances or the concept of a conditional visa which, to be effective, requires that the condition actually be met. Wherever the word “valid” appears in the Act, it is used in the phrase “valid and subsisting”, which undoubtedly gives it the sense of “not expired”, a visa whose term has not yet expired. Neither the Act nor the Regulations makes any reference to visas which become invalid, are revoked or become ineffective. The technique used to cover cases of changes in the immigrant’s status between the time the visa is issued and the time he or she arrives at the Canadian border is contained in section 12 of the Regulations. Issuing an immigrant visa does not confer a right of entry; it is the new requirements of section 12 of the Regulations that must be met.

There is a discrepancy between the French and English versions as to one of the requirements of section 12; only the English version can be taken literally. The French version, literally construed, implies an irrational system, contrary to general principles and obviously difficult to apply. In contrast, the English version, read literally, implies a perfectly logical system, in keeping with general principles and relatively easy to apply, as the underlying idea is simply that where a change occurs in facts which may have influenced the issuing of a visa, its holder at the point of entry must show that the change has not affected his or her ability to meet the requirements for granting the visa. The respondent could not establish that she met the requirements of section 12, since she was granted her visa in consideration of her husband’s presence. However, since she was in possession of a valid visa, the matter should be returned to the Appeal Division, as the latter was still under the duty imposed on it by subsection 73(3) and paragraph 70(3)(b) of the Act to consider whether on compassionate or humanitarian grounds the respondent should not be removed from Canada.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Federal Court Act, R.S.C., 1985, c. F-7, s. 52(c).

Immigration Act, R.S.C., 1985, c. I-2, ss. 9(1), 12(1), 14 (as am. by R.S.C., 1985 (4th Supp.), c. 30, s. 47), 19(2)(b), 20(1)(a), 23, 27(1)(b), 32(5)(b) (as am. idem, c. 28, s. 11), 70(2),(3) (as am. idem, s. 18), 73(2),(3) (as am. idem), 83 (as am. idem, s. 19), 86(1), 89.1 (as enacted idem, s. 22), 91(2), 94.1 (as enacted idem, c. 29, s. 9), 94.2 (as enacted idem), 114(1)(q).

Immigration Regulations, 1978, SOR/78-172, ss. 2(1), 12 (as am. by SOR/83-540, s. 2), 14 (as am. by SOR/89-38, s. 2), 23(1) (as am. by SOR/84-849, s. 3; 85-1038, s. 7; 88-517, s. 5; 89-38, s. 8; 90-750, s. 3), 50 (as am. by SOR/89-38, s. 22).

CASES JUDICIALLY CONSIDERED

CONSIDERED:

Kang v. Minister of Employment and Immigration, [1981] 2 F.C. 807; (1981), 37 N.R. 551 (C.A.).

APPEAL from a decision of the Appeal Division of the Immigration and Refugee Board upholding an Adjudicator’s decision granting the respondent leave to enter Canada and establish permanent residence. Appeal allowed.

COUNSEL:

Johanne LeVasseur for appellant.

Denis Buron for respondent.

SOLICITORS:

Deputy Attorney General of Canada for appellant.

Denis Buron, Montréal, for respondent.

The following is the English version of the reasons for judgment rendered by

Pratte J.A.: This appeal brought pursuant to section 83 of the Immigration Act [R.S.C., 1985, c. I-2 (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 19)] is from a decision of the Appeal Division of the Immigration and Refugee Board, dismissing an appeal by the Minister of Employment and Immigration from an Adjudicator’s decision granting the respondent leave to enter Canada and establish permanent residence.

In October 1988 a visa officer of the Canadian Embassy in Bogotá, Columbia issued an immigrant visa to Ignazio DeCaro, the respondent’s husband. At the same time, he also issued immigrant visas to two dependants who were to accompany Mr. DeCaro,[1] namely the respondent and her daughter Kristle Julie DeCaro.

Ignazio DeCaro died in November 1988 before coming to Canada. The respondent did come and arrived at Dorval on July 11, 1989 accompanied by her daughter Kristle Julie and another child, Kenny, who was born in the U.S. after his father’s death and never obtained a visa. She then applied for landing residence for herself and her two children. This was denied on the ground that her admission to the country contravened paragraph 19(2)(d) of the Immigration Act because the respondent did not meet the requirements of subsection 9(1).[2] The immigration officer in charge of the case then prepared a report in accordance with paragraph 20(1)(a) of the Act. An inquiry was held during which the officer responsible for presenting the case stated that the respondent was deemed to be inadmissible to Canada on the following three grounds, namely:

1. her admission contravened paragraph 19(2)(d) of the Act and section 12 of the Immigration Regulations, 1978 [as am. by SOR/83-540, s. 2][3] since one of her dependants, her son Kenny, was not admissible;

2. her admission contravened paragraph 19(2)(d) of the Act because, since her husband’s death, she no longer met the definition given by subsection 2(1) of the Regulations to the phrase “accompanying dependant”; and

3. her admission contravened subsection 9(1) of the Act because, as her husband was dead, the immigrant visa she had obtained was no longer valid at the time she appeared at a port of entry to apply for admission.

The Adjudicator found these allegations to be groundless. In his opinion the respondent, when she applied for admission to Canada, held a valid immigrant’s visa since her visa had not been revoked by the proper authorities. Her husband’s death did not automatically invalidate the visa. Further, the Adjudicator considered that there was no need to refer to section 12 of the Regulations because that provision did not enact a condition of admission: consequently, its infringement did not mean the respondent could not be admitted.

The Minister appealed from this decision to the Appeal Division of the Immigration and Refugee Board. The Division dismissed this appeal. In its view the respondent, before appearing at a port of entry, had duly obtained an immigrant visa which had never been revoked or cancelled by the proper authorities. That being so, she had the right to be admitted to Canada unless she was inadmissible on some other ground than the lack of a valid visa. According to the Division, the Minister did not specify or prove anything making the respondent inadmissible, and so it had to conclude that she was admissible to Canada and that the Adjudicator was right in granting her landing.

It seems clear to me that this decision must be set aside.

In order to arrive at this conclusion it is not necessary to say, as counsel for the appellant invited the Court to do, that an immigrant or visitor appearing at a port of entry must be in possession of a valid visa and that a visa ceases to be valid once its holder no longer meets the requirements for its issue. We need only refer to the definition of the phrase “accompanying dependant” given in subsection 2(1) to see that the visa issued to a person in this class is of a very special type which is issued solely to enable its holder to accompany or follow another person to Canada. In my opinion, the holder of such a visa who applies for admission to the country without “the other person” accompanying or preceding him into Canada does not meet the requirements of subsection 9(1) of the Act any more than a holder of a visitor’s visa who applies for admission as an immigrant does. Both did obtain a visa, but in each case the visa was conditional and met the requirements of section 9 only if the condition imposed was fulfilled when the holder of the visa applied for admission to Canada.

In view of the time spent discussing this point at the hearing of the appeal, I would add that after her husband’s death the respondent also became inadmissible by virtue of section 12 of the Regulations. Her marital status had changed since she obtained her visa and, in order to be admitted to Canada, she had to establish not only that she was eligible but also that she met all the conditions for obtaining a visa. It is quite apparent that the respondent never discharged this burden of proof.

Counsel for the respondent argued that there is no basis for applying section 12 of the Regulations here because, he said, that provision does not impose a condition of admission. He relied on Kang v. Minister of Employment and Immigration, [1981] 2 F.C. 807 (C.A.), in support of this argument.

In Kang the Court held that the mere fact that an immigrant infringed some provision of the Act or Regulations did not necessarily have the effect of making him inadmissible under paragraph 19(2)(d) of the Act. The question in each case is whether the legislation or regulatory provision infringed imposes a condition for admission. If this question is asked about section 12 of the Regulations, the answer is easy. That provision requires that the immigrant establish certain facts at an examination under section 12 of the Act. As that examination is held solely to determine whether the immigrant in question may be admitted to Canada, the regulation would be devoid of meaning if the immigrant could be found admissible without the required evidence being presented.

Counsel for the respondent also argued that the appellant was required to prove before the Appeal Division that the respondent was not entitled to a visa because every appellant has a duty to establish that the decision against which he is appealing is wrong. This argument is without merit. While it is true that before the Appeal Division the Minister had to establish that the Adjudicator’s decision was wrong, it does not follow that she had the burden of establishing that the respondent could not be admitted and was unable to obtain a visa. What the appellant had to show, and what the record clearly indicated, was that the respondent had not fulfilled the duty imposed on her by section 12 of the Regulations to prove that she met all the requirements for a visa to be issued.

If I understood correctly, counsel for the respondent argued that section 12 of the Regulations cannot be applied. That section applies when the circumstances have changed between the time an immigrant obtains a visa and the time he appears at a port of entry. In such a case, section 12 permits the immigrant to show that, despite the change, he meets “the requirements for the issuance of the visa”; that means, according to counsel for the respondent, that an immigrant who has obtained a certain class of immigrant visa and, at the examination, no longer meets the requirements for his visa to be issued, may prove that he nevertheless meets the necessary conditions for an immigrant visa in another class. Counsel for the respondent further argued that such evidence is impossible to present since the immigration officer conducting the examination mentioned in section 12 of the Act is not a visa officer and, because of that, is not capable of deciding whether the person concerned meets the specified selection criteria for the new immigrant class to which he is claiming to belong.

This argument must also be dismissed. Even assuming that section 12 of the Regulations is to be interpreted as counsel for the respondent does[4]⁴*ftnote⁴ and that in practice it is impossible for an immigrant to show in an examination at a port of entry that he meets the conditions for issuance of a visa other than the one he already holds, it cannot be concluded that this provision is devoid of meaning or effect since it is easy to conceive of cases in which the immigrant could establish that, despite the changed circumstances, he still meets the conditions for issuance of the visa he has already obtained.

I would therefore allow the appeal.

Foreseeing that the Court might arrive at this conclusion, counsel for the respondent asked that in such a case, rather than sending the matter back to the Appeal Division, the Court should make the decision the Division ought to have made.[5] This brings us to subsections 73(2) and (3) of the Immigration Act [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18)], which indicates the decisions that the Appeal Division is authorized to make in the event of an appeal by the Minister.

73. …

(2) The Appeal Division may dispose of an appeal made pursuant to section 71

(a) by allowing it and making the removal order or conditional removal order that the adjudicator who was presiding at the inquiry should have made; or

(b) by dismissing it.

(3) Where the Appeal Division disposes of an appeal made pursuant to section 71 by allowing it and making a removal order or conditional removal order against the person concerned, that person shall, where the person would have had an appeal pursuant to this Act if the order had been made by an adjudicator after an inquiry, be deemed to have made an appeal to the Appeal Division pursuant to paragraph 70(1)(b) or 70(3)(b), as the case may be.

If the Division had made the decision it should have made, it would have made a removal order against the respondent. The Division would then under subsection 73(3) have automatically had before it an appeal by the respondent under paragraph 70(3)(b) [as am. idem][6] if the removal order was appealable in the event that it was made by an adjudicator. This means that the Appeal Division would have had before it an appeal under subsection 73(3) if the respondent, at the time she was the subject of a report under paragraph 20(1)(a) of the Act, was in possession of a valid immigrant visa.

Was the respondent, when she was the subject of the report under paragraph 20(1)(a), in possession of a “valid” visa?[7] The word “valid” implies that a visa which is initially valid may subsequently cease to be so. Before her husband’s death, the respondent certainly held a valid visa even though, as I said, the visa was a conditional one; however, after that death it was impossible for the condition attached to the visa to be performed, so that the visa then ceased to have any validity. It was no longer, in my opinion, a “valid” visa.

The case is therefore one in which the Court can make the removal order which the Appeal Division should have made.

I would allow the appeal, set aside the subject decision and the decision of the Adjudicator granting the respondent landing and, making the removal order which the Adjudicator should have made under paragraph 32(5)(b) [as am. idem, s. 11] of the Act, I would order that the respondent be excluded from Canada.

Létourneau J.A.: I concur.

* * *

The following is the English version of the reasons for judgment rendered by

Marceau J.A. (concurring in part): I regret that I cannot entirely agree with the approach taken by Pratte J.A. Like him, I feel that the Immigration and Refugee Board Appeal Division (“the Appeal Division”) erred in upholding the Adjudicator’s decision. The latter could not, as he did, grant the respondent landing in Canada. However, I do not arrive at this conclusion in the same way as my brother Judge: my understanding of the provisions implicated by the circumstances of the case differs so fundamentally from his that I would not finally dispose of the appeal in the way he suggests. I must of course explain this, but now that the facts are set out and the principal provisions of the Act and the Regulations have been noted, I can do so quite quickly.

The appellant argued that the Appeal Division erred in fact and in law in finding that there was no reason to doubt the validity of the visa, which had also never been revoked. She said that Mrs. Pizzaro De DeCaro’s visa became invalid once the condition on which it was issued, namely that she accompany her husband, became impossible to fulfil. The invalidity was automatic and there was no need for cancellation. Pratte J.A. does not feel it is necessary to speak of validity, that one only has to remember that the visa was a very special kind of visa, issued to enable Mrs. De DeCaro to accompany her husband, and so a conditional visa which cannot meet the requirements of subsection 9(1) of the Act[8] unless the condition imposed on it is met when the holder applies for admission to Canada. With respect, I must take the liberty of questioning these two approaches, which in any case are so close to each other that in my opinion they amount almost to the same thing. The Act and the Regulations do not seem to me to make use of either the concept of a valid visa which can become invalid in certain circumstances or the concept of a conditional visa which, to be effective, requires that the condition actually be met.

I note first that the only places where there is any reference to a “valid visa” in the Act[9] are in sections 70(2) [as am. idem, s. 18], 86(1), 89.1 [as enacted idem, s. 22], 91(2), 94.1 [as enacted by R.S.C., 1985 (4th Supp.), c. 29, s. 9] and 94.2 [as enacted idem] and finally in paragraph 114(1)(q). Everywhere in each of these provisions, without exception, the word is used in the phrase “valid and subsisting”, which undoubtedly gives it the sense of “not expired”, a visa whose term has not yet expired. The situation could hardly be otherwise, given the context: apart from the first provision, all the others—which are found in Part V on the obligations of transportation companies, Part VI on offences and punishment and Part VII which contains general provisions—are designed to penalize a transportation company which brings a foreign national to Canada without having a “valid and subsisting” visa and anyone who otherwise induces or abets the coming into Canada of such a person: the carrier or the instigator could not be required to do more than check the date of expiry of the visa shown. As regards the first provision, that in subsection 70(2), there too the wording could not refer to anything but a delay in becoming effective, since it is used in cases which have given rise to reports under subsection 20(1), namely cases where substantive conditions for granting the visa have not been observed. Accordingly, neither the Act nor the Regulations, in which the word “valid” is encountered still more rarely (sections 14 [as am. by SOR/89-38, s. 2] and 50 [as am. idem, s. 22]), speaks of a valid visa in any sense other than that of an unexpired visa.

I would also note that no provision of the Act or the Regulations appears to support any concept of a conditional visa. Sections 14 [as am. by R.S.C., 1985 (4th Supp.), c. 30, s. 47] and 23 of the Act and subsection 23(1) [as am. by SOR/84-849, s. 3; 85-1038, s. 7; 88-517, s. 5; 89-38, s. 8; 90-750, s. 3] of the Regulations speak of terms and conditions, but with reference to the right of landing conferred by the visa, not the visa itself. In granting landing the officer imposes conditions which, if not eventually fulfilled, will lead to a report under paragraph 27(1)(b) of the Act.[10] I also do not see how this notion of a conditional visa can be drawn from the definition of the phrase “accompanying dependant” in subsection 2(1) of the Act. As to treating the holder of a visa issued to a dependant who appears at a border alone as similar to the holder of a visitor’s visa applying for immigrant status for the purposes of subsection 9(1), I will simply say that the former holds an immigrant visa while the latter does not. This idea of a visa issued conditionally, which automatically loses its effect simply because a condition is not performed or becomes impossible to perform, seems to me, with all due respect to my brother Judge, to be extraneous to the Act.

Of course, I am not forgetting that Parliament has made distinctions as to the capacity and title on the basis of which a visa is issued, and that between the time it is issued outside of Canada and the time the immigrant appears at a port of entry that capacity or title may change. The case at bar is sufficient evidence of that. However, as I understand the system, the means of recognizing and sanctioning the change, if in fact it must be sanctioned, is not by the legal technique of invalidity, of revocation or of “loss of effect”; and the reasons prompting Parliament not to adopt such techniques are easy to imagine. First, the conditions and circumstances that may influence the issuing of a visa are many and diverse and it seems clear that fixing a classification in advance that may not take into account the circumstances of a particular case would not be a very good way of achieving the purpose of the system. Second, it should be quite apparent that a system of revocation would be very difficult if not impossible to implement. In any case, I repeat, I do not see any reference in the Act or Regulations to visas which become invalid, are revoked or become ineffective. The technique used to cover cases of changes in the immigrant’s status between the time the visa is issued and the time he or she arrives at the Canadian border is contained in section 12 of the Regulations, which I take the liberty of setting out:

12. An immigrant who has been issued a visa and who appears before an immigration officer at a port of entry for examination pursuant to subsection 12(1) of the Act is required

(a) if his marital status has changed since the visa was issued to him, or

(b) if any other facts relevant to the issuance of the visa have changed since the visa was issued to him or were not disclosed at the time of issue thereof,

to establish that at the time of the examination

(c) he and his dependants, whether accompanying dependants or not, where a visa was issued to him pursuant to subsection 6(1), section 9 or subsection 10(1), 11(3) or (4), or

(d) he and his accompanying dependants, in any other case,

meet the requirements of the Act, these Regulations, the Indochinese Designated Class Regulations, the Self-Exiled Persons Class Regulations or the Political Prisoners and Oppressed Persons Designated Class Regulations, including the requirements for the issuance of the visa.

As we know, issuing an immigrant visa is not the granting of landing. Such issuance simply means that the visa officer has formed the opinion that the applicant meets the requirements of the Act and Regulations for admission to Canada. The granting of a visa is undoubtedly not simply an academic exercise with no practical value or effect. The visa is evidence of a conclusion by an immigration officer, whose function is to determine from outside Canada whether applicants are admissible, and that conclusion will usually be accepted as such by his colleague at the port of entry. However, the rule is still that a foreign national arriving in Canada with a view to residing here must satisfy the immigration officer of his admissibility at the port of entry (subsection 12(1) of the Act).[11] This is the context in which section 12 of the Regulations applies. First, it imposes on an immigrant a duty to disclose any change in the facts which may have influenced the issuing of the visa which he holds, and if there has been such a change, it requires the immigrant to meet new requirements. The visa is not void, but as we know the visa in itself does not confer a right of entry; it is the new requirements of section 12 of the Regulations that must be met.

My brother Judge properly notes in his reasons the discrepancy between the French and English versions as to one of these requirements of section 12. Whereas the English version reads: “An immigrant who has been issued a visa … is required … to establish that at the time of the examination … he meet[s] the requirements … for the issuance of the visa” [underlining added], and the visa in question at the end is clearly the visa in question at the beginning, the French version reads “Un immigrant à qui un visa a été délivré … doit … établir … [qu’il satisfait] … aux … exigences relatives à la délivrance d’un visa” [underlining added], that is, it might be said, any visa in any circumstances and for any purpose, and my brother Judge indicates his preference for the English version, although as he sees the matter no more need be said.

I think that, in order to properly understand the technique chosen by Parliament to deal with these situations in which changes of conditions and circumstances occur between the time a visa is issued and the time it is shown at a port of entry, a firm position has to be taken on this difference of wording, and I believe that, on analysis, it is clear that only the English version can be taken literally.

The French version, literally construed, implies an irrational system, contrary to general principles and obviously difficult to apply: irrational, because there is no explanation of why an immigrant, on account of the change which has occurred, has the right to start again at the beginning and make use of all available opportunities; contrary to general principles, because it would conflict with the fundamental principle that the conditions for granting a visa should be verified outside Canada; finally, obviously difficult to apply because it would require immigration officers at the border to become visa officers in many cases compelled to redo an exhaustive examination of all the possibilities for granting the visa.

In contrast, the English version, read literally, implies a perfectly logical system, in keeping with general principles and relatively easy to apply, as the underlying idea is simply that where a change occurs in facts which may have influenced the issuing of a visa, its holder at the point of entry must show that the change has not affected his or her ability to meet the requirements for granting the visa, so that, even if the change had occurred before the visa application was considered, it would not have caused the responsible officer to reject the application. Logic is preserved, the significance of granting the visa remains and the verification undertaken by the officer at the port of entry is limited to what is strictly necessary.

That is how I understand the Act and Regulations, and why I said I differ somewhat from my brother Judge’s opinion. In my view, it is clear in the case at bar that Mrs. Pizzaro De DeCaro, even disregarding the fact that she had a newborn infant with her, could not establish that she met the requirements of section 12, since she was granted her visa in consideration of her husband’s presence. The Adjudicator accordingly was wrong to think that she met the conditions of admission set by the Regulations; and the Appeal Division of the Immigration and Refugee Board could not confirm the Adjudicator’s finding on the grounds that the Minister had not discharged her burden of showing that Mrs. Pizzaro De DeCaro was inadmissible or that her visa had been cancelled, as the Minister was under no burden of proof and cancellation of the visa a concept that does not exist.

My essential conclusion is therefore the same as that of Pratte J.A.: the appeal should be allowed and the subject decision by the Appeal Division set aside. However, I consider that since in my opinion Mrs. Pizzaro De DeCaro was in possession of a valid visa, the matter should be returned to the Appeal Division, as the latter is still under the duty imposed on it by subsection 73(3) and paragraph 70(3)(b) of the Act[12] to consider another aspect of the problem, namely that of whether on compassionate or humanitarian grounds Mrs. Pizzaro De DeCaro should not be removed from Canada.

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