A-283-80
Surinder Kaur Kang (Appellant)
v.
Minister of Employment and Immigration
(Respondent)
Court of Appeal, Pratte and Le Dain JJ. and
Verchere D.J.—Vancouver, March 31; Ottawa,
May 6, 1981.
Immigration — Appeal from decision of Immigration
Appeal Board dismissing an appeal made pursuant to s. 79(2)
of the Immigration Act, 1976 — Appellant's father was
refused landing because he lied about his age to visa officers
and thereby contravened s. 9(3) of the Act — Whether failure
to comply with s. 9(3) renders a person a member of the
inadmissible class described in s. 19(2)(d) of the Act — Appeal
allowed (Le Dain J. dissenting) — Immigration Act, 1976, S.C.
1976-77, c. 52, ss. 9(3), 19(2)(d), 79(2) — Immigration Regu
lations, 1978, SOR/78-172, ss. 4(c),(d), 5(1).
APPEAL.
COUNSEL:
J. Aldridge for appellant.
A. Louie for respondent.
SOLICITORS:
Rosenbloom, McCrea & Leggatt, Vancouver,
for appellant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
PRATTE J.: This is an appeal from a decision of
the Immigration Appeal Board dismissing an
appeal made pursuant to subsection 79(2) of the
Immigration Act, 1976, S.C. 1976-77, c. 52.
The appellant is a Canadian citizen who comes
from India where her parents are still living. In
May 1978, she sponsored the application for land
ing of her father and his six dependants. A year
later, she was notified that her father's application
had been refused on the ground that he was a
member of the inadmissible class of persons
described in paragraph 19(2)(d) of the Immigra-
tion Act, 1976' in that he had not complied with
subsection 9(3) of the Act which requires that:
9....
(3) Every person shall answer truthfully all questions put to
him by a visa officer and shall produce such documentation as
may be required by the visa officer for the purpose of establish
ing that his admission would not be contrary to this Act or the
regulations.
The appellant appealed from that decision to the
Immigration Appeal Board. The Board found that
the appellant's father had lied when, in answer to
questions put to him by the visa officer, he had
misstated his age as well as that of his wife and
that, as a consequence, the rejection of his applica
tion was "in accordance with the law". The Board
also found that there were no compassionate or
humanitarian grounds warranting special relief
and dismissed the appeal. It is from that decision
that this appeal is brought.
Counsel for the appellant does not challenge the
Board's findings that the appellant's father lied to
the visa officer and that there existed no special
consideration warranting the granting of special
relief. Counsel's contention is that the appellant's
father's failure to answer truthfully the questions
of the visa officer concerning his age did not make
him an inadmissible person described in paragraph
19(2)(d) because that failure was not a violation
of subsection 9(3). He says that subsection 9(3)
does not require an applicant to answer truthfully
all the questions that a visa officer may put to him
but only those that are asked "for the purpose of
establishing that his admission would not be con
trary to this Act or the regulations." It follows,
according to him, that an applicant does not vio
late subsection 9(3) if he refuses to answer or
answers untruthfully questions that are not rele
vant to his admissibility; it also follow, says he,
that the appellant's father did not contravene sub
section 9(3) when he lied about his age since it is
common ground that the admissibility of the
' 19....
(2) No immigrant and, except as provided in subsection (3),
no visitor shall be granted admission if he is a member of any of
the following classes:
(d) persons who cannot or do not fulfil or comply with any of
the conditions or requirements of this Act or the regulations
or any orders or directions lawfully made or given under this
Act or the regulations.
appellant's father did not depend on his age (see
subsection 5(1) of the Immigration Regulations,
1978, SOR/78-172).
Counsel for the respondent replies that subsec
tion 9(3), when it is read carefully, imposes on an
applicant the duty to answer truthfully all ques
tions put to him by a visa officer, whether they be
relevant to his admissibility or not; that, even if the
admissibility of the appellant's father did not
depend on his age, questions concerning his age
were nevertheless material to his admission; that,
in any event, the fact that the appellant's father
had lied was, in itself, relevant to his admissibility.
In order to dispose of this appeal, it is not
necessary, in my view, to determine whether the
appellant's father contravened subsection 9(3)
when he lied to the visa officer. As I indicated at
the hearing, I am of opinion that a violation of
subsection 9(3) by a person who applies for a visa
does not make him an inadmissible person
described in paragraph 19(2)(d).
The class of inadmissible persons described in
paragraph 19(2)(d) is composed of
... persons who cannot or do not ... comply with any of the
conditions or requirements of this Act or the regulations or any
orders or directions lawfully made or given under [the] Act or
the regulations.
The use of the present tense ("cannot or do not
comply") in that paragraph indicates that the
persons therein described are those who, at the
time when a decision is made on their admissibili
ty, do not comply with a requirement of the Act or
the Regulations. It follows, in my view, that the
"conditions or requirements" mentioned in that
paragraph are only those that are prescribed as
conditions of admission, for instance the require
ment of the Regulations that an immigrant or
visitor be in possession of an unexpired passport. If
a person does not comply with that kind of a
requirement at the time he seeks to be admitted to
Canada, it can correctly be said that he does not at
that time comply with the requirements of the
Regulations and, for that reason, is an inadmis
sible person under paragraph 19(2)(d). That para
graph, however, cannot refer to requirements such
as those imposed by subsection 9(3). If a person
tells a lie to a visa officer he, at that moment, fails
to comply with a requirement of the Act; however,
when the time comes to consider the admissibility
of that person, all that can be said of him is that,
at the time of his examination, he did not comply
with the Act; he cannot be said not to comply with
a requirement of the Act at the time his admissi
bility is considered. It is therefore my opinion that
a person does not become a member of the inad
missible class of persons described in paragraph
19(2)(d) for the sole reason that he has violated a
prescription of the Act or the Regulations. The
sole purpose of that paragraph, in my view, is to
render inadmissible all those who do not meet the
conditions of admissibility prescribed by or under
the Act.
It does not follow that the failure of an applicant
to comply with the requirements of subsection 9(3)
is without sanction. That failure may or may not,
according to the circumstances, justify a decision
not to grant a visa; it does not, however, as was
assumed by the decision under attack, have the
automatic effect of making the applicant an inad
missible person described in paragraph 19(2)(d).
For those reasons, I would allow the appeal, set
aside the decision under attack and refer the
matter back to the Board for decision on the basis
that the failure of a person to comply with the
requirements of subsection 9(3) does not render
that person a member of the inadmissible class
described in paragraph 19(2)(d) of the Act.
* * *
The following are the reasons for judgment
rendered in English by
VERCHERE D.J.: I have had the privilege of
reading the reasons for judgment of Pratte J., and
I am in agreement with his conclusions for the
reasons that he has given.
* * *
The following are the reasons for judgment
rendered in English by
LE DAIN J. (dissenting): The facts and the
issues are set out in the reasons of my brother
Pratte which I have had the advantage of reading.
I am unable, with respect, to agree that an
applicant for admission who fails to comply with
the requirement of subsection 9(3) of the Immi
gration Act, 1976, to answer truthfully all ques
tions put to him by a visa officer is not a person
who falls within the class described in paragraph
19(2)(d) of the Act as "persons who cannot or do
not fulfil or comply with any of the conditions or
requirements of this Act or the regulations or any
orders or directions lawfully made or given under
this Act or the regulations." In my view subsection
9(3) lays down requirements for admission of a
procedural nature. By subsection 9(1) an immi
grant is required to "obtain a visa before he
appears at a port of entry." By subsection 9(3) he
is required to "answer truthfully all questions put
to him by a visa officer." A person who has not
obtained a visa as required by subsection 9(1) is
clearly a person who fails to comply with the
requirements of the Act within the meaning of
paragraph 19(2)(d), and I think a person who has
failed to answer truthfully all questions put to him
by a visa officer must equally be such a person. In
my respectful opinion it cannot have been the
intention of the Act that an immigration officer
should be unable to refuse landing on the ground
that an applicant has refused to answer truthfully
all the questions put to him by a visa officer.
It is necessary, then, for me to consider the
contention of the appellant with reference to
materiality. As I indicated during the hearing,
there appeared to me at first sight, to be some
question, particularly in the light of the French
version of subsection 9(3), as to whether the words
"for the purpose of establishing that his admission
would not be contrary to this Act or the regula
tions" were intended to qualify the words "Every
person shall answer truthfully all questions put to
him by a visa officer", as well as the words "shall
produce such documentation as may be required
by the visa officer", but upon further reflection
and upon consideration of the two versions of the
similar provision in subsection 12(4) of the Act, I
believe that the better view is that an applicant for
admission is required by subsection 9(3) to answer
truthfully only those questions that are put to him
by a visa officer for the purpose of establishing
that his admission would not be contrary to the
Act or the Regulations. There must be some
intended limit or criterion of relevance with
respect to the questions that may properly be put
by a visa officer so as to give rise to the duty
imposed by subsection 9(3).
The issue, then, is whether the question as to the
age of the appellant's father and mother which
appeared in the application for admission and was
put to them again at the examination or interview
conducted by the visa officer was a question that
could be said to be for the purpose of establishing
that their admission would not be contrary to the
Act or the Regulations.
Subsection 5(1) of the Immigration Regula
tions, 1978, when read with paragraphs (c) and
(d) of section 4 to which it refers, makes it clear
that the age of a father and mother whose applica
tion for landing is sponsored by a Canadian citizen
is not a condition of their admission. Since their
admission could not be contrary to the Act or
Regulations on the ground of age alone, the issue,
as I see it, is whether a question as to age in such a
case can be said for any other reason to be for the
purpose of establishing that their admission would
not be contrary to the Act or the Regulations. The
reason given by the Board—that immigration
documents may establish the age which serves in
practice as the basis for entitlement to pension and
other benefits in Canada—is not related to admis
sibility. But counsel for the Minister contended
that age is one of the factors by which the identity
of the applicants as father and mother of the
sponsor may be verified and established by the
immigration authorities, and that identity is, of
course, an essential condition of admissibility. I
find this a sufficient reason for holding that the
father and mother of the appellant were required
by subsection 9(3) of the Act to answer truthfully
the question put to them by a visa officer concern
ing their age, and that their failure to do so, as
found by the Board, placed them in the class of
inadmissible persons described in paragraph
19(2)(d) of the Act. I would accordingly dismiss
the appeal.
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.