A-84-77
Mario Santiago Hilario (Appellant)
V.
Minister of Manpower and Immigration
(Respondent)
Court of Appeal, Heald and Urie JJ. and MacKay
D.J.—Toronto, September 26 and 27, 1977.
Judicial review — Citizenship and immigration — Deporta
tion ordered by Immigration Appeal Board — Information
withheld from immigration officer — Whether or not with
holding information `misleading" under s. 18(1)(e)(viii) of
Immigration Act — Whether or not Board properly exercised
discretion in "special" jurisdiction under s. 15 of Immigration
Appeal Board Act — Immigration Act, R.S.C. 1970, c. I-2, s.
18(1)(e)(viii) — Immigration Appeal Board Act, R.S.C. 1970,
c. I-3, s. 15.
The appellant failed to disclose to the immigration officer in
the Philippines the fact of his religious marriage and two
children born of that marriage. The Immigration Appeal Board
ordered appellant deported. Appellant questions whether or not
the withholding of information was "misleading", within the
meaning of the term in section 18(1)(e)(viii) of the Immigra
tion Act. It was further argued that the Board improperly
exercised its discretion under the special jurisdiction given by
section 15 of the Immigration Appeal Board Act.
Held, the appeal is dismissed. The information withheld by
appellant had the effect of foreclosing or averting further
inquiries which conceivably could have adversely affected the
decision as to appellant's entry to Canada. The Board was quite
entitled on the evidence before it to conclude that the appellant
was permitted entry because of misleading information within
the meaning of the term in section 18(1)(e)(viii) of the Immi
gration Act. It cannot be argued that the Board's refusal to
exercise its "special" jurisdiction under section 15 of the Immi
gration Appeal Board Act represented an improper exercise of
discretion, for the Board was not influenced by irrelevant
considerations and did not exercise its discretion arbitrarily or
illegally.
Minister of Manpower and Immigration v. Brooks [ 1974]
S.C.R. 850, applied; D. R. Fraser and Company, Ltd. v.
M.N.R. [1949] A.C. 24, applied.
APPEAL.
COUNSEL:
S. Long, Q.C., for appellant.
T. James for respondent.
SOLICITORS:
Seed, Howard, Long, Cook & Caswell,
Toronto, for appellant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
delivered orally in English by
HEALD J.: It is my view that the appellant has
failed to demonstrate any reviewable error in the
decision of the Immigration Appeal Board. Quite
apart from the question of the validity of the forms
of marriage entered into by the appellant with
Sonia Valenzuela, there was ample evidence
adduced before the Board from which it could
reasonably conclude that the appellant was given
landed immigrant status because of misleading
information given by him to immigration officials.
The evidence before the Board was to the effect
that the appellant failed to disclose to the immi
gration officer in the Philippines the fact of his
religious marriage ceremony to Sonia Valenzuela
and further failed to disclose to the same officer
the fact that he was the father of two children
born of Sonia Valenzuela. (See Appeal Book,
pages 125 to 129 inclusive.) To withhold truthful,
relevant and pertinent information may very well
have the effect of "misleading" just as much as to
provide, positively, incorrect information.
In my opinion, the Board was reasonably en
titled to conclude that this failure to act in good
faith by withholding the information referred to
supra prevented the immigration officer from
making further inquiries which such information
would in all likelihood have necessitated. Such
inquiries could conceivably have adversely affected
the decision as to the appellant's entry to Canada.
Thus, it is my view that the Board was quite
entitled, on the evidence before it, to conclude that
the appellant was allowed to enter Canada by
reason of "misleading information" within the
meaning of that term as used in section
18(1) (e) (viii) of the Act.
In summarizing its findings, the Board stated
(Appeal Book, page 166): "The Board therefore
finds that the appellant came into and remained in
Canada by reason of false and misleading informa
tion given by himself." In the above passage, the
Board has used the conjunctive "and" instead of
the disjunctive "or" as used in section
18(1) (e) (viii). However, to meet the requirements
of the section, it is necessary that the information
be only false or misleading, not both.' For this
reason, I do not consider it necessary to make a
finding as to the validity or invalidity of the
alleged marriage to Sonia Valenzuela. Quite apart
from this question, (the answer to which could
conceivably resolve the question as to whether or
not the appellant provided "false" information), it
is my view, as indicated above that the Board
could reasonably conclude that the appellant came
into Canada by reason of misleading information
and such a conclusion satisfies the requirements of
the section as referred to supra.
In the above-mentioned Brooks case, Mr. Jus
tice Laskin (as he then was) stated at page 873:
Lest there be any doubt on the matter as a result of the
Board's reasons, I would repudiate any contention or conclusion
that materiality under s. 19(1)(e)(viii) requires that the
untruth or the misleading information in an answer or answers
be such as to have concealed an independent ground of deporta
tion. The untruth or misleading information may fall short of
this and yet have been an inducing factor in admission. Evi
dence, as was given in the present case, that certain incorrect
answers would have had no influence in the admission of a
person is, of course, relevant to materiality. But also relevant is
whether the untruths or the misleading answers had the effect
of foreclosing or averting further inquiries, even if those in
quiries might not have turned up any independent ground of
deportation.
It is my opinion that the information withheld
by the appellant from the immigration officials in
this case had the "effect of foreclosing or averting
further inquiries" and is thus "material" within
the test set out by Laskin J. in the Brooks case.
It is my further opinion that the decision of this
Court in the case of Ebanks v. Minister of Man-
i See Minister of Manpower and Immigration v. Brooks
[1974] S.C.R. 850 at p. 865.
power and Immigration 2 is indistinguishable on its
essential facts from the case at bar. In that case,
the Chief Justice, delivering the judgment of the
Court, quoted, with approval, the opinion of the
Immigration Appeal Board as follows:
... this Board is of the opinion that the word "children", as
used in Box 23 of the application for Permanent Residence,
IMM.OS.8, should be interpreted in its ordinary sense and
would include children born in wedlock, born out of wedlock
and also children not directly dependent upon the applicant. It
is also of the opinion that non-disclosure of such children is
material to the admission of the applicant to Canada and,
therefore, brings her within the purview of Section
18(1)(e)(viii) of the Immigration Act ... .
For the foregoing reasons, I have concluded that
the appellant's attack on the validity of the depor
tation order must fail.
The appellant, however, attacks the Board's
decision on a second ground, namely, that its
refusal to exercise its "special" jurisdiction under
section 15 of the Immigration Appeal Board Act
represents an improper exercise of its discretion
under that section. The appellant submits that the
Board must exercise that discretion, not on the
basis of random or arbitrary considerations, but,
rather on evidence, the relevancy and cogency of
which, the Board is to pronounce on as a judicial
tribunal. The appellant further submits that the
Board must "at least show a grasp of issues in that
section and the evidence before it." The appellant
submits that while the Board mentions some evi
dence and claims to have examined the evidence as
a whole, on a reading of the entire record, it is
evident that the Board did not consider all of the
evidence, but, rather, was unduly influenced by
that portion of the evidence which establishes that:
"in the Philippines the appellant had lived alter
nately, and intermittently, with each of his alleged
wives ... . "3 The appellant further points to the
uncontradicted evidence of the appellant that,
since his arrival in Canada, he has been steadily
employed, and to the further evidence of several
witnesses that appellant is a most valuable, reliable
and responsible employee. Counsel also points to
'Unreported—Court File No. A-559-76, dated January 11,
1977. [No written reasons—Ed.]
3 See Appeal Book, page 166.
the uncontradicted evidence of the appellant that
he has been sending some money to Sonia Valen-
zuela, in the Philippines, as support for his two
children there. Counsel also relies on the further
circumstance that appellant has now lived in
Canada for more than 5 years, (although he had
not been in Canada for 5 years at the date of the
deportation order) and but for subject deportation
order, would be eligible to apply for Canadian
citizenship.
The test by which the exercise of a statutory
discretion must be judged was succinctly stated by
Lord Macmillan in D. R. Fraser and Company,
Limited v. M.N.R. °:
... it is well settled that if the discretion has been exercised
bona fide, uninfluenced by irrelevant considerations and not
arbitrarily or illegally, no court is entitled to interfere even if
the court, had the discretion been theirs, might have exercised
it otherwise. 5
In my view, applying that test to the facts here
present, the Court would not be justified in sub
stituting its discretion for that of the Board. I have
carefully reviewed the record and have satisfied
myself that the Board was not influenced by irrele
vant considerations and that it did not exercise its
discretion arbitrarily or illegally.
The Board, in its reasons, specifically refers to
appellant's evidence as to steady employment in
Canada and his evidence of support for the two
children in the Philippines. It also refers to the two
children in Canada and the fact referred to supra
that, while in the Philippines, appellant lived alter
nately, and intermittently with each of his two
alleged wives. Then, after making reference to
these specific facts, the Board stated:
The Board has examined the evidence carefully and is of the
opinion, upon examining this evidence as a whole, [underlining
° [1949] A.C. 24 at p. 36.
5 The above test as stated by Lord Macmillan was quoted
with approval by Abbott J. in Boulis v. Minister of Manpower
and Immigration [1974] S.C.R. 875 at p. 877.
is mine] that the appellant is not the type of person who merits
the exercise by the Board, favourably, of its special
jurisdiction. 6
In my view, the fact that the Board specifically
refers to only some of the circumstances which it
considered, does not invalidate the Board's exer
cise of its discretion. The Board states that it
considered the evidence as a whole and it is my
opinion that, considering the evidence as a whole,
the Board could reasonably reach the conclusion
which it did in this case. The evidence of the
appellant's conduct during the years he has lived in
Canada redounds to his credit. The evidence of at
least some of his conduct in the Philippines, is not
to his credit.
The Board, in the exercise of its discretion,
appears to have weighed and considered all of
these factors, both favourable and unfavourable; in
so doing, they have, in my view, satisfied the test
set out by Lord Macmillan supra in the Fraser
case.
I would, accordingly, dismiss the appeal.
* * *
URIE J. concurred.
* * *
MACKAY D.J. concurred.
6 Appeal Book, p. 166.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.