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CHAPTER 44. VALID VISAS4.1 INTRODUCTIONAs noted in Chapter 1, only certain persons who have had a removal order issued against them have a right to appeal to the Appeal Division. One such category of persons are those who have "valid immigrant visas" and those who have "valid visitor's visas" at the time of seeking entry or landing. Such persons have a right of appeal under subsection 70(2) of the Immigration Act (the "Act") which provides as follows:
An appeal to the Appeal Division under this provision can be based on one or both of the two grounds of appeal found in subsection 70(3) of the Act. The first ground of appeal involves a question of law or fact and the second is based on the discretionary jurisdiction of the Appeal Division. Subsection 70(3) provides as follows:
A preliminary issue in these appeals is whether the Appeal Division has jurisdiction to hear the appeal. In order to resolve this jurisdictional issue the Appeal Division must ask itself the question "was the appellant in possession of a valid immigrant visa or a valid visitor's visa?" If the Appeal Division decides that the appellant was in possession of such a visa, it can proceed to determine the legal validity of the removal order and to consider the exercise of its discretionary jurisdiction. If the Appeal Division determines that the appellant was not in possession of such a visa, then it has no jurisdiction to hear the appeal and the appeal is dismissed for lack of jurisdiction. 4.2 VALID IMMIGRANT VISAThe Act does not provide a definition of a "valid immigrant visa". Since 1993, there has been significant Federal Court jurisprudence as to the meaning of this phrase and the circumstances in which it can be said that a person is in possession of a valid immigrant visa so that the person has a right of appeal to the Appeal Division. The first case in which the meaning of a "valid immigrant visa" was interpreted was the decision of the Federal Court of Appeal in De Decaro. 1 The facts of De Decaro were not complex. An immigrant visa was issued to Mr. De Decaro. His wife and child received visas as "accompanying dependants". Mr. De Decaro died before coming to Canada. Mrs. De Decaro and the child then arrived and sought landing. Mrs. De Decaro was brought up for inquiry and first the adjudicator, and then the Appeal Division, found that she was admissible to Canada, as she was in possession of a valid immigrant visa which had never been revoked or cancelled. On appeal, the Federal Court of Appeal disagreed with the Appeal Division and set aside its decision. Mr. Justice Pratte, writing for the majority of the Court, concluded that the visa issued to a person as an accompanying dependant was a "very special type which is issued solely to enable its holder to accompany or follow another person to Canada".2 This type of visa is conditional and the condition must be fulfilled when the holder of the visa actually applies for admission to Canada at a port of entry.3 In this case, after the death of her husband, it was impossible for Mrs. De Decaro to fulfill the condition attached to the visa and the visa then ceased to be valid; it was no longer a "valid" visa.4 Since there was not a "valid" immigrant visa, the matter was not referred back to the Appeal Division which had no jurisdiction to hear the appeal.5 In the dissenting judgment, Mr. Justice Marceau disagreed with the approach taken by Mr. Justice Pratte. In his opinion, neither the Act nor the Immigration Regulations, 1978 (the "Regulations") makes use of the concept of a valid visa which can become invalid, or the concept of a conditional visa.6 A review of the statutory scheme leads to the conclusion that landing is a two-stage process. First, a person must obtain an immigrant visa. Second, a person must appear at a port of entry for admission to Canada. It is at this second stage that a final determination will be made as to whether the person is admissible. If there have been changes to the person's status between the time the visa was issued and the time of arrival in Canada or if there are relevant facts which ought to have been disclosed at the time the visa was issued, then the person will not be landed.7 However, such a person is still in possession of a valid immigrant visa and will therefore have a right of appeal to the Appeal Division.8 The Federal Court of Appeal has recently revisited the principle set out in De Decaro in McLeod. 9 The facts in McLeod were very similar to those in De Decaro. The principal applicant died after visas were issued and before remaining members of the family presented themselves at a Canadian port of entry. The Court in McLeod reversed its earlier decision in De Decaro. The Court reconsidered the majority decision in De Decaro and relied on the dissenting judge's opinion and on the judgment in Hundal 10 to conclude that a validly issued visa is not invalidated merely by a change in the circumstances in respect of which it was issued following its issuance. It is important to note that the Court in McLeod only considered the validity of a visa where there had been a supervening event between the issuance of the immigrant visa and the arrival of the remaining family members at the port of entry. Subsequent to De Decaro(which as noted has been reversed), the Federal Court of Appeal dealt with the issue of a valid immigrant visa again in Wong. 11 The facts in Wong were similar to those in De Decaro in that Ms. Wong, the appellant was also an accompanying dependant. In this case, however, Ms. Wong's father died before rather than after, the issuance of the immigrant visas as in De Decaro. The Appeal Division had concluded that it had jurisdiction to hear the appeal as Ms. Wong was in possession of a valid immigrant visa. The Court determined that the Appeal Division did not have jurisdiction to hear the appeal. The Court stated that "whatever should be the result where an element upon which the issuance of a visa is based subsequently ceases to exist, we are at least satisfied that, where, as here, the principal reason for the issuance of a visa ceased to exist before its issuance, such a visa cannot be said to be a valid immigrant visa.12 The Appeal Division's decision was set aside for want of jurisdiction. In 1995, the Federal Court-Trial Division rendered two judgments which followed the rationale in De Decaro and Wong. In the first case, in Bruan, 13 the Court dealt with a situation where the applicant was being sponsored by his mother as a member of the family class, but she died before the issuance of the immigrant visa. The applicant was issued a visa and arrived in Canada. A removal order was made against him and he appealed to the Appeal Division. The Appeal Division distinguished De Decaro and Wong and found that a "valid immigrant visa" means a visa which has not expired or has not been revoked. The Appeal Division concluded that it had jurisdiction to hear the appeal. Mr. Justice Nadon concluded that De Decaro and Wong could not be distinguished, even though the facts were different. The Court indicated that it preferred the reasons of the dissenting judgment in De Decaro, but that it felt bound by the reasoning of the majority: where the principal reason for the issuance of the visa ceases to exist prior to its issuance, the visa cannot be said to be a "valid immigrant visa". As a result, the Appeal Division had erred in law in concluding that it had jurisdiction to hear the appeal. The second case in which the Federal Court-Trial Division dealt with this issue was Hundal. 14 The facts of this case were similar to those in Bruan in that the Court was dealing, not with an accompanying dependant, but with a change in the situation of the sponsorship. In this case, Mr. Hundal had been issued an immigrant visa after being sponsored by his wife. Prior to Mr. Hundal's arrival in Canada, his wife signed a statutory declaration withdrawing her sponsorship. An adjudicator issued an exclusion order against Mr. Hundal and Mr. Hundal appealed to the Appeal Division. The Appeal Division concluded that Mr. Hundal was in possession of a valid immigrant visa and allowed the appeal on humanitarian and compassionate grounds. The argument made by the Minister in Hundal was that once the sponsorship was withdrawn, the condition for issuing Mr. Hundal's visa could not be met and the visa ceased to be valid. The respondent's counsel argued that De Decaro should not be applied broadly to all situations in which a condition upon which a visa is issued is no longer met because of an event arising after the issuance of the visa; to do so, would be to render the right of appeal to the Appeal Division for valid immigrant visa holders meaningless. The Court agreed and stated that it "seems obvious that De Decaro cannot be interpreted to have such broad scope".15 The Court then went on to define the scope of De Decaro and to draw the following conclusions:
Exception #1: the De Decaro exception, where there is a frustration or impossibility of performance of a condition on which the visa was issued. This applies only when it is obvious that a supervening act makes the satisfaction of the condition of the visa impossible. Exception #2: The Wong exception, where there is a failure to meet a condition of the granting of the visa itself before the visa is issued. The essential components of the issued visa were not present before the visa was issued and, therefore, the visa is void ab initio. 17 Exception #3: where the visa has expired.18 Exception #4: where the visa has been revoked by a visa officer.19 In analyzing the facts in Hundal, the Court was of the view that none of the four exceptions applied. Of particular interest was its view that even though the sponsorship had been withdrawn, it was possible to reinstate it; therefore, it was not an impossibility as contemplated by De Decaro. 20 As a result, the Appeal Division did have jurisdiction to hear the appeal and the judicial review application was dismissed. Recently, the Federal Court of Appeal has revisited this case law in McLeod. The Court has reversed its earlier decision in De Decaro and so the first exception noted above no longer exists. Thus, an immigrant visa is no longer invalid if there has been a supervening event, such as the death of the principal applicant between the issuance of the immigrant visa and the arrival at a port-of-entry. In Oloroso 21, Mr. Justice Gibson reviewed the case law and questioned whether the "Wong exception" was suspect. He relied on the reasoning in Seneca 22 which involved similar facts, to conclude that it was not logical to take away the right of appeal to the Appeal Division on the basis that visas were improperly issued, when that was the very issue to be decided. The applicants had obtained immigration visas as husband and wife and two children. It was learned at the port of entry that the principal applicant was legally married to another woman when the purported marriage of the adult applicants took place. An adjudicator made exclusion orders against the applicants. The Appeal Division determined that it had no jurisdiction in the appeals against the exclusion orders, since the applicants were not in possession of valid visas. Moreover, the wife was not a member of the family class. Refer to Chapter 3 for a discussion of the application of this case-law to the situation of permanent residents. 4.2.1 Appeal Division JurisprudenceSince the hearing of these cases by the Federal Court of Appeal and the Federal Court-Trial Division, the Appeal Division has addressed the issue of whether an appellant had a valid immigrant visa and therefore, a right of appeal to the Appeal Division under subsection 70(2). Some examples of these cases are provided below. 4.2.1.1. Sponsorship UndertakingsIn Nagy, 23 the appellant was issued an immigrant visa as an accompanying dependent spouse. Her husband preceded her to Canada in March 1993. The appellant heard nothing from her husband and she arrived in Canada on November 17, 1993. Her visa was to expire on November 24, 1993. She learned that her husband had returned to Romania and it was obvious that there were marital difficulties. She was examined by an immigration officer on December 12, 1993. The issue for the Appeal Division to determine was whether the appellant was in possession of a valid immigrant visa at the time of the immigration examination. The Minister argued that the appellant was separated from her husband and therefore, at the time of the examination she was not an accompanying spouse. As a result, pursuant to De Decaro and Wong, she was not in possession of valid immigrant visa and the Appeal Division did not have jurisdiction to hear the appeal. The Appeal Division did not accept the Minister's argument. The panel reasoned that the husband was landed in Canada and the evidence showed that the marital relationship, which was the foundation of the visa, was not necessarily at an end. In theory, they could be reconciled. Therefore, the conditions of the visa were, or could have been fulfilled. Although not in the exact words of the exception as stated in Hundal in section 4.2, the panel appears to have found that the De Decaro exception did not apply since it was not impossible to fulfill the condition. 4.2.1.2. IdentityIn Nyame, 24 the appellant had been issued an immigrant visa in the wrong name and the wrong birth date. The appellant's passport contained the same misinformation. The Appeal Division panel concluded that the appellant was perhaps in violation of sections of the Immigration Act, but that this case did not fall within one of the four exceptions set out in the Federal Court decision in Hundal; therefore, the appellant was in possession of a valid immigrant visa and the Appeal Division had jurisdiction to hear the appeal. 4.2.1.3. Marriage and ChildrenThe most common scenarios seen in valid immigrant visa cases, is where the appellant was married and or had children when he had been issued an immigrant visa on the basis of being single and with no children. In two cases, Li 25 and Chung, 26 the Appeal Division considered the situation where immigrant visas had been issued to the appellants as members of the family class, as unmarried dependent sons, but the appellants married between the date of the applications for permanent residence and the date of issuance of the immigrant visas. In both cases, the Appeal Division concluded that the Wong exception, as noted in Hundal, applied in that a condition of the visa was that the appellants be unmarried (since they were married, they were not members of the family class and could not be sponsored), and therefore, there was a failure to meet a condition of the granting of the visas before the visas were issued. On this basis, the Appeal Division determined that the appellants did not have a valid immigrant visas and the Appeal Division did not have jurisdiction to hear the appeal. The Appeal Division has treated in cases involving failure to disclose the existence of children differently from cases involving failure to disclose the marriage of the appellant. The reason for the difference in treatment is that a married person is not a member of the family class as a dependant, whereas the existence of children does not have the effect of removing a person from the family class as a dependant. In Mohammed, 27 the appellant, his wife and one child were issued immigrant visas. The appellant did not disclose to the visa officer that he had two other children. The appellant declared his two other children at the port of entry and a removal order was issued against him. The issue for the Appeal Division was to determine whether the appellant, his wife and child had valid immigrant visas within the meaning of subsection 70(2). The panel distinguished De Decaro and Wong on the basis that, even though there was a failure to disclose the two children, the appellants were still members of the family class. Therefore, the appellants were in possession of valid immigrant visas and the Appeal Division had jurisdiction to hear the appeal. In Opina, 28 the Appeal Division took a similar approach. In this case, the appellant had failed to disclose the existence of his children prior to the issuance of his immigrant visa. The Minister argued that the immigrant visa had been issued to the appellant as an unmarried son with no dependants and therefore, since he did in fact have children, the immigrant visa was not valid. The panel considered the applicable definitions of "dependent son" in the Immigration Regulations 1978, and concluded that the existence of children did not automatically place the appellant outside of the family class. 4.2.1.4. Revocation of VisasAs noted in Hundal, if an immigrant visa is revoked, then it is not a valid immigrant visa and the person does not have a right of appeal to the Appeal Division. In two recent decisions, the Appeal Division has dealt with the requirements of notice of revocation of a visa to an immigrant visa holder. In both cases, the sponsor had withdrawn the sponsorship prior to the applicant spouse's arrival at the port of entry. In Lionel 29, an immigration officer in Canada decided to cancel the appellant's visa, and asked officials at the visa post to "attempt to retrieve" the visa. The appellant was advised by telegram to attend at the High Commission with his passport and visa; however, he was never advised that the visa was no longer valid. He proceeded to the port of entry. The Appeal Division held that it was not sufficient to invite the appellant to the visa post for a meeting; the revocation of his visa had to be explicitly conveyed to him. As this was not done, the visa remained valid and the appellant was in possession of a valid visa when he arrived at the port of entry. In Hundal, 30 a visa officer sent a telegram to the appellant at the address she provided to the visa post to notify her of the withdrawal of the sponsorship and the subsequent invalidity of the visa. The appellant claimed not to have received the telegram. The Appeal Division held that the Federal Court-Trial Division decision in Hundal 31 was distinguishable from the facts in the case before it as a visa officer had made a decision to cancel the visa and that decision had been communicated to the appellant. Procedural fairness did not require actual notice to the appellant of the revocation of her visa. The visa office had done all that could be expected of it in sending the notice to the address the appellant provided. The appellant was not the holder of a valid visa when she arrived at a port of entry and consequently, she did not have a right of appeal to the Appeal Division. 4.3 VALID VISITOR'S VISAThere are not many appeals to the Appeal Division pursuant to subsection 70(2) on the basis that the appellant is in possession of a valid visitor's visa. As in cases involving a valid immigrant visa, the Appeal Division must determine as a preliminary matter whether it has jurisdiction to hear the appeal. The issue is whether the appellant was in possession of a valid visitor's visa at the time the report under subsection 20(1) was written. The Federal Court-Trial Division in He 32 provided a two-part test for determining whether the person has a valid visitor's visa. The first part of the test is that the appellant must have a valid visa and the second part of the test is that the person must be using the visa for the purpose for which it was intended. Thus, if the person has a visitor's visa, then it is only valid if the person is seeking to enter Canada as a visitor and not if the person is seeking landing in Canada as an immigrant. The reasoning in He was followed by the Appeal Division in Choi.33 In Choi, the appellant had a visitor's visa and his stated intention at the time of entering Canada was that "he had come to visit and to seek business opportunities". The panel found on the basis of the evidence before it that there was no bar to a visitor's exploring business opportunities; the two-part test in He was met as the appellant had a visitor's visa and was intending to use it for the purpose of visiting Canada. The Appeal Division had jurisdiction to hear the appeal of the removal order.
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