A-169-81
Mohan Eugene D'Souza (Appellant)
v.
Minister of Employment and Immigration
(Respondent)
Court of Appeal, Thurlow C.J., Lalande and
Cowan D.JJ.—Toronto, September 24, 1982.
Immigration — Deportation order — Appeal pursuant to s.
84 of the Act from decision of Immigration Appeal Board
dismissing appeal from deportation order made under s.
27(1)(e) on grounds that appellant granted landing as result of
misrepresentation of material fact made by mother whom he
accompanied to Canada as dependent — Appellant contends s.
27(1)(e) should be read as requiring knowledge of misrepre
sentation by person being deported; that he was denied fair
opportunity to deal with and answer to affidavit received by
Adjudicator, and that, in considering whether to grant special
relief under s. 72(1)(b), Board erred by failing to consider fact
that appellant had no prior knowledge of misrepresentation
made by mother — Appeal dismissed —.Immigration Act,
1976, S.C. 1976-77, c. 52, ss. 27(I)(e), 72(1)(b), 84.
COUNSEL:
M. Pacheco for appellant.
R. J. Levine for respondent.
SOLICITORS:
Green & Spiegel, Toronto, for appellant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
THURLOW C.J.: This is an appeal under section
84 of the Immigration Act, 1976, S.C. 1976-77, c.
52 from a decision of the Immigration Appeal
Board which dismissed the appellant's appeal from
a deportation order made against the appellant on
November 29, 1979 by an Adjudicator following
an inquiry under the Act. The ground for deporta
tion stated in the order is that the appellant was a
person described in paragraph 27(1)(e)' of the Act
as he had been granted landing by reason of
misrepresentation of a material fact made by
another person.
The other person referred to was the appellant's
mother and the alleged misrepresentation consist
ed of an incorrect answer by her to one of the
questions on her application for admission to
Canada. The appellant made an application of his
own in which there were no errors, but it is
common ground that he accompanied his mother
to Canada and was granted entry as her depend
ent. It is no longer in dispute that the incorrect
answer in the mother's application amounted to a
misrepresentation and that it was of a material
fact. As the appellant entered as her dependent, it
follows that the misrepresentation was material to
the grant of entry to him as well as to his mother.
The principal submission raised on behalf of the
appellant was that because he did not make, or
know that his mother had made, a misrepresenta
tion, the wording "made ... by any other person"
in paragraph 27(1)(e) of the Act does not apply to
him. It was said that because of the harsh conse
quences, which flow from a deportation order,
including disability from entering Canada without
the Minister's consent and the severe penalty for
entering without such consent, the wording in
question should be read as inapplicable where, at
the material time, i.e. the time of his being granted
entry, the person did not even know that the
statement had been made.
Notwithstanding the very careful and compre
hensive argument put forward by counsel for the
' 27. (I) Where an immigration officer or peace officer has
in his possession information indicating that a permanent resi
dent is a person who
(e) was granted landing by reason of possession of a false or
improperly obtained passport, visa or other document per
taining to his admission or by reason of any fraudulent or
improper means or misrepresentation of any material fact,
whether exercised or made by himself or by any other person
appellant, I do not think the submission can pre
vail. It may be noted that the Board did not make
a finding that the appellant was unaware at the
material time that his mother had made an incor
rect answer. On the evidence, and having regard to
the circumstances under which the applications
were made, the Board might well have been left
unsatisfied that the appellant did not know.
Indeed, on the evidence it would, in my view, be
difficult to reach such a conclusion.
But be that as it may, to adopt the proposed
construction of the statute would, in my opinion,
require the addition of words limiting its applica
tion to situations where the person concerned had
knowledge of the making of the statement. I do not
think the Court can supply or insert such wording.
If the statute is to be so limited it is, in my opinion,
a matter for Parliament. The submission, there
fore, fails.
The second point raised concerned an affidavit
received by the Adjudicator at the inquiry and the
lack of a fair opportunity for the appellant to deal
with and answer it. There was, however, ample
opportunity to object to and meet it at the hearing
before the Board. No objection to it was raised on
that occasion. The point was not pursued in the
argument before us and, in my view, it is
untenable.
The remaining submission was that in consider
ing whether to grant the appellant special relief 2 ,
having regard to all the circumstances of the case,
the Board failed to consider the fact that the
appellant had had no prior knowledge of the mis
representation made by his mother.
The Board may not have been satisfied that the
appellant did not know, in which case it would
have been under no obligation to take such a fact
into account. On the other hand, if the Board was
satisfied that the appellant did not know, it was
but one of many considerations to be taken into
account and there is, in my view, no reason to
conclude that the Board did not consider it. The
Board cannot be required to state every feature
given consideration and it is not to be presumed
2 Under par. 72(1) (b).
from the failure to mention a feature of the situa
tion that the feature has not been considered and
taken into account. Moreover, in the course of its
reasons, the Board said:
The Board has carefully considered all of the evidence and
cannot find such considerations as would warrant the granting
of special relief.
In my opinion, there is no basis on which this
Court could properly set the Board's judgment
aside and refer the matter back to it for
reconsideration.
I would dismiss the appeal.
LALANDE D.J.: I agree.
COWAN D.J.: I agree.
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.