Date: 19981109
Docket: IMM-1098-98
BETWEEN:
TERESA DEFINO DIVINAGRACIA
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
[Delivered orally at Toronto, Ontario
on Tuesday, September 22, 1998, as edited]
SIMPSON, J.
[1] The Applicant is seeking judicial review of a decision of the Immigration and Refugee Board, Appeal Division (the "Tribunal") dated February 24, 1998, wherein it dismissed an appeal against a deportation order.
The Facts
[2] The Applicant is 32 years old and a citizen of the Philippines. She came to Canada in 1991 to work as a domestic worker. She lived with, and was sponsored by, an aunt living in Canada. The Applicant became a permanent resident on February 22, 1994. In both 1991 and 1994, the Applicant advised immigration officials that she was unmarried. This statement will hereafter be referred to as the "Misrepresentation". In fact, she had married one Ebi Defino, a Philippine citizen, on November 14, 1987. She married him again in a religious ceremony before her departure to Canada in 1991, and, upon returning to the Philippines for a visit in 1994, married him a third time so that she could sponsor him as a member of the family class.
[3] Immigration officials discovered the Misrepresentation, and the Applicant admitted her deception. On June 22, 1995, the Respondent issued a report (the "First Report") under section 27 of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act"). It describes the Misrepresentation. Based on the First Report, the Respondent could have initiated proceedings under section 27(3) of the Act to hold an inquiry with a view to having the Applicant deported. Instead, the Respondent wrote a letter dated July 27, 1995 (the "First Letter"), advising the Applicant that the Respondent was aware of her Misrepresentation and was choosing not to act on the First Report "at this time". In the First Letter, the Respondent also undertook not to proceed further unless the Applicant had committed another violation or did so in the future (the "Undertaking").
[4] After the First Letter was sent to the Applicant, the Respondent discovered that the Applicant's husband, who was a sponsored immigration applicant, had a congenital heart defect which rendered him medically inadmissible. The Respondent sent a letter dated September 25, 1995, to the Applicant informing her that, based on this new information, the Respondent would be initiating an inquiry into her status pursuant to section 27(3) of the Act.
[5] On January 29, 1996, a second report under section 27 (the "Second Report") was issued. The Second Report referred in greater detail to the Misrepresentation and also mentioned the husband's medical inadmissibility. An inquiry was held on July 5, 1996, and the Applicant was ordered deported on that date for violating section 27(1)(e) of the Act, i.e. obtaining landing after making a misrepresentation of a material fact. The Tribunal heard the Applicant's appeal of the deportation order on November 3, 1997, and rendered its negative decision on February 24, 1998.
[6] The Tribunal dismissed the Applicant's appeal because it rejected her argument that the Respondent was functus officio after it had issued the First Report. It also exercised its discretion and concluded that, in all the Applicant's circumstances, the appeal should be dismissed.
[7] In oral argument before this Court, the Applicant's counsel mentioned his arguments on the issue of functus officio and the fettering of the Tribunal's discretion, but did not pursue them at any length. Rather, he focused on the text of the First Letter and argued that the Tribunal erred in law in failing to address the legal consequences of the Undertaking in the context of the Tribunal's conclusion that there was no new misrepresentation or violation because the Applicant did not know about her husband's illness. Counsel submitted that, had the Tribunal appreciated that the Deputy Minister had undertaken to proceed only if there was a new violation, the Tribunal would have dismissed the appeal and quashed the deportation order.
[8] I agree with this submission. In my view, given the Undertaking and the Tribunal's finding that there was no new violation, the Respondent had no jurisdiction to prepare the Second Report or to order an inquiry.
Conclusion
[9] An order will be made allowing the appeal, and the Tribunal's decision will be quashed with a direction that it allow the Applicant's appeal and quash the deportation order. I have taken this course of action because I can see no purpose for a re-hearing in this case.
(Sgd.) "Sandra J. Simpson"
Judge
Vancouver, B.C.
November 9, 1998
NAMES OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: TERESA DEFINO DIVINAGRACIA
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
COURT NO.: IMM-1098-98
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: September 22, 1998
REASONS FOR ORDER: SIMPSON, J.
(Delivered orally at Toronto, Ontario on September 22, 1998, as edited)
DATED: November 9, 1998
APPEARANCES:
Mr. Lorne Waldman for Applicant
Ms. Subabeh Mashkuri for Respondent
SOLICITORS OF RECORD:
Jackman, Waldman & Associates for Applicant
Toronto, Ontario
Morris Rosenberg for Respondent
Deputy Attorney General of Canada