Mohammed v. Canada (Minister of Citizenship and Immigration), (1997) 130 F.T.R. 294 (TD)

• Judge: MacKay, J.
• Court: Federal Court (Canada)
• Case Date: May 12, 1997
• Jurisdiction: Canada (Federal)
• Citations: (1997), 130 F.T.R. 294 (TD)

Mohammed v. Can. (M.C.I.) (1997), 130 F.T.R. 294 (TD)

MLB headnote and full text

Temp. Cite: [1997] F.T.R. TBEd. JN.015

Abu Tayub Mohammed (applicant) v. Minister of Citizenship and Immigration (respondent)

(IMM-3601-95)

Indexed As: Mohammed v. Canada (Minister of Citizenship and Immigration)

Federal Court of Canada

Trial Division

MacKay, J.

May 12, 1997.

Summary:

Mohammed gained entry into Canada after having declared that he had no spouse. When immigration authorities learned that Mohammed was in fact married, he was ordered to be removed (Immigration Act, s. 32(2)), on the ground that he had gained entry into Canada "by reason of 'fraudulent or improper means or misrepresentation' of a 'material fact'" (s. 27(1)(e)). Mohammed sought judicial review of the decision.

The Federal Court of Canada, Trial Division, dismissed the application.

Aliens - Topic 1342

Admission - Visitors - Considerations in granting visitor's visa - In discussing the procedure for an applicant to gain entry into Canada under the Immigration Act, the Federal Court of Canada, Trial Division, stated that it was a two stage process involving "(1) an initial assessment by a visa officer abroad who determines whether a visa should be issued to the applicant; and once the visa is issued, (2) an examination by an immigration officer at the port of entry and a determination by that officer whether the applicant should be granted landing. In the Act, the responsibility of satisfying the visa officer and subsequently the immigration officer that the requirements of the Act and the regulations are met is clearly that of the applicant" - See paragraph 43.

Aliens - Topic 1646

Exclusion and expulsion - Immigration - Deportation - Grounds for - Giving false or misleading information to enter Canada - Mohammed gained entry into Canada after having declared that he had no spouse - When immigration authorities learned that Mohammed was in fact married, he was ordered to be removed (Immigration Act, s. 32(2)), on the ground that he had gained entry into Canada "by reason of 'fraudulent or improper means or misrepresentation' of a 'material fact'" (s. 27(1)(e)) - Mohammed sought judicial review arguing, inter alia, that the adjudicator made an error in law by interpreting s. 27(1)(e) to include within its scope an "'honest, invincible ignorance' that he was required to report any change in his marital status" subsequent to his original application - The Federal Court of Canada, Trial Division, dismissed the application.

Aliens - Topic 1646

Exclusion and expulsion - Immigration - Deportation - Grounds for - Giving false or misleading information to enter Canada - Mohammed gained entry into Canada after having declared that he had no spouse - When immigration authorities learned that Mohammed was in fact married, he was ordered to be removed (Immigration Act, s. 32(2)), on the ground that he had gained entry into Canada "by reason of 'fraudulent or improper means or misrepresentation' of a 'material fact'" (s. 27(1)(e)) - Mohammed sought judicial review arguing, inter alia, that the adjudicator improperly interpreted the word "misrepresentation" in s. 27(1)(e) - The Federal Court of Canada, Trial Division, reviewed the scope of the section, including the meaning of misrepresentation and dismissed the application - See paragraphs 17 to 52.

Aliens - Topic 1646

Exclusion and expulsion - Immigration - Deportation - Grounds for - Giving false or misleading information to enter Canada - Mohammed gained entry into Canada after having declared that he had no spouse - He in fact married prior to entering Canada, but after filling out his original application - Mohammed, not speaking English or French, was unaware that he had to inform immigration officials of his marital status change - When immigration officials learned of Mohammed's marriage, he was ordered to be removed (Immigration Act, s. 32(2)), on the ground that he had gained entry into Canada "by reason of 'fraudulent or improper means or misrepresentation' of a 'material fact'" (s. 27(1)(e)) - Mohammed sought judicial review arguing, inter alia, that the adjudicator's interpretation of s. 27(1)(e) constituted a deprivation of his liberty and security of the person, contrary to the Charter, s. 7 - The Federal Court of Canada, Trial Division, rejected the argument - See paragraphs 56 to 61.

Aliens - Topic 1646

Exclusion and expulsion - Immigration - Deportation - Grounds for - Giving false or misleading information to enter Canada - Mohammed, a permanent resident of Canada, was ordered to be removed (Immigration Act, s. 32(2)), on the ground that he had gained entry into Canada "by reason of 'fraudulent or improper means or misrepresentation' of a 'material fact'" (s. 27(1)(e)) - Mohammed sought judicial review arguing, inter alia, that the adjudicator's interpretation of s. 27(1)(e) violated the Charter, s. 15(1), in that it discriminated against the illiterate and uneducated - The Federal Court of Canada, Trial Division, rejected the argument stating that ignorance of the law, and the inability to converse in either of Canada's official languages, did not constitute a "disability", nor did it fall within any of the other enumerated grounds of discrimination under s. 15 - See paragraphs 62 to 65.

Aliens - Topic 1646

Exclusion and expulsion - Immigration - Deportation - Grounds for - Giving false or misleading information to enter Canada - Mohammed gained entry into Canada after having declared that he had no spouse - He in fact married prior to entering Canada, but after filling out his original application - Mohammed, not speaking English or French, was unaware that he had to inform immigration officials of his marital status change - When immigration officials learned of Mohammed's marriage, he was ordered to be removed (Immigration Act, s. 32(2)), on the ground that he had gained entry into Canada "by reason of 'fraudulent or improper means or misrepresentation' of a 'material fact'" (s. 27(1)(e)) - Mohammed sought judicial review arguing, inter alia, that to remove him from Canada on the basis of an innocent and honest error would constitute cruel and unusual punishment, contrary to the Charter, s. 12 - The Federal Court of Canada, Trial Division, rejected the argument - See paragraphs 66 to 72.

Aliens - Topic 1646

Exclusion and expulsion - Immigration - Deportation - Grounds for - Giving false or misleading information to enter Canada - Mohammed gained entry into Canada after having declared that he had no spouse - He in fact married prior to entering Canada, but after filling out his original application - Mohammed, not speaking English or French, was unaware that he had to inform immigration officials of his marital status change - When immigration officials learned of the marriage, Mohammed was ordered to be removed (Immigration Act, s. 32(2)), on the ground that he had gained entry into Canada "by reason of 'fraudulent or improper means or misrepresentation' of a 'material fact'" (s. 27(1)(e)) - Mohammed sought judicial review arguing, inter alia, that in removing him from Canada on the basis of an innocent and honest error, the adjudicator made an erroneous finding of fact in a perverse or capricious manner or without regard to the material before it - The Federal Court of Canada, Trial Division, rejected the argument - See paragraphs 73 to 78.

Civil Rights - Topic 660.2

Liberty - Limitations on - Immigration - [See third Aliens - Topic 1646 ].

Civil Rights - Topic 960.2

Discrimination - Mental or physical disability - Disability defined - [See fourth Aliens - Topic 1646 ].

Civil Rights - Topic 3831

Cruel and unusual treatment or punishment - What constitutes cruel and unusual punishment - Immigration, deportation, sponsorship, etc. - [See fifth Aliens - Topic 1646 ].

Civil Rights - Topic 8668

Canadian Charter of Rights and Freedoms - Equality rights (s. 15) - What constitutes a breach of s. 15 - [See fourth Aliens - Topic 1646 ].

Civil Rights - Topic 8672

Canadian Charter of Rights and Freedoms - Equality rights (s. 15) - Analogous categories - [See fourth Aliens - Topic 1646 ].

Words and Phrases

Misrepresentation - The Federal Court of Canada, Trial Division, interpreted the word "misrepresentation" as used in s. 27(1)(e) of the Immigration Act, R.S.C. 1985, c. I-2 - See paragraphs 24 to 42.

Cases Noticed:

D'Souza v. Minister of Employment and Immigration, [1983] 1 F.C. 343 (F.C.A.), refd to. [para. 28, footnote 1].

Medel v. Minister of Employment and Immigration, [1990] 2 F.C. 345; 113 N.R. 1 (F.C.A.), dist. [para. 34, footnote 4].

Canada (Minister of Manpower and Immigration) v. Brooks, [1974] S.C.R. 850, refd to. [para. 37, footnote 6].

Juayong v. Minister of Employment and Immigration (1988), 99 N.R. 78 (F.C.A.), refd to. [para. 40, footnote 10].

Ministre de l'Emploi et de l'Immigration v. De Decaro, [1993] 2 F.C. 408; 155 N.R. 129 (F.C.A.), refd to. [para. 43, footnote 11].

Minister of Employment and Immigration v. Hundal (1995), 96 F.T.R. 306; 30 Imm. L.R.(2d) 52 (T.D.), refd to. [para. 43, footnote 11].

Peralta v. Canada (Minister of Citizenship and Immigration) (1996), 123 F.T.R. 153 (T.D.), refd to. [para. 43, footnote 11].

R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; 21 N.R. 295; 85 D.L.R.(3d) 161; 40 C.C.C.(2d) 353; 3 C.R.(3d) 30; 7 C.E.L.R. 53, refd to. [para. 58, footnote 12].

R. v. Wigglesworth, [1987] 2 S.C.R. 541; 81 N.R. 161; 61 Sask.R. 105; 24 O.A.C. 321; 45 D.L.R.(4th) 235; [1988] 1 W.W.R. 193; 60 C.R.(3d) 193; 28 Admin. L.R. 294; 32 C.R.R. 219; 37 C.C.C.(3d) 385, refd to. [para. 58, footnote 12].

Hurd v. Minister of Employment and Immigration, [1989] 2 F.C. 594; 90 N.R. 31 (F.C.A.), refd to. [para. 58, footnote 12].

Chiarelli v. Minister of Employment and Immigration, [1992] 1 S.C.R. 711; 135 N.R. 161; 90 D.L.R.(4th) 289, refd to. [para. 60, footnote 14].

Egan and Nesbit v. Canada, [1995] 2 S.C.R. 513; 182 N.R. 161; 12 R.F.L.(4th) 201; 124 D.L.R.(4th) 609, refd to. [para. 64, footnote 15].

Miron and Valliere v. Trudel et al., [1995] 2 S.C.R. 418; 181 N.R. 253; 81 O.A.C. 253; 124 D.L.R.(4th) 693; 13 R.F.L.(4th) 1, refd to. [para. 64, footnote 15].

Thibaudeau v. Minister of National Revenue, [1995] 2 S.C.R. 627; 182 N.R. 1; 124 D.L.R.(4th) 449, refd to. [para. 64, footnote 15].

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255; 56 D.L.R.(4th) 1, refd to. [para. 64, footnote 16].

Gittens v. Canada, [1983] 1 F.C. 152; 137 D.L.R.(3d) 687 (T.D.), refd to. [para. 67, footnote 18].

Barrera v. Minister of Employment and Immigration, [1992] 2 F.C. 3; 151 N.R. 28; 99 D.L.R.(4th) 264 (F.C.A.), refd to. [para. 67, footnote 19].

R. v. Smith (E.D.), [1987] 1 S.C.R. 1045; 75 N.R. 321; 34 C.C.C.(3d) 97; 40 D.L.R.(4th) 435; [1987] 5 W.W.R. 1; 58 C.R.(3d) 193; 15 B.C.L.R.(2d) 273, refd to. [para. 68, footnote 20].

R. v. Goltz, [1991] 3 S.C.R. 485; 131 N.R. 1; 5 B.C.A.C. 161; 11 W.A.C. 161; 67 C.C.C.(3d) 481; 7 C.R.R.(2d) 1; 8 C.R.(4th) 82; 61 B.C.L.R.(2d) 145, refd to. [para. 69, footnote 21].

Okwe v. Minister of Employment and Immigration (1991), 136 N.R. 261; 16 Imm. L.R.(2d) 126 (F.C.A.), refd to. [para. 73, footnote 22].

Boulis v. Canada (Minister of Manpower and Immigration), [1974] S.C.R. 875; 26 D.L.R.(3d) 216, refd to. [para. 76, footnote 23].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 56]; sect. 12 [para. 66]; sect. 15 [para. 62].

Immigration Act, R.S.C. 1985, c. I-2, sect. 12(1) [para. 47]; sect. 19(2)(d) [para. 50]; sect. 27(1)(e) [para. 12]; sect. 32(2) [para. 15]; sect. 94(1)(i) [para. 33, footnote 3].

Immigration Act Regulations (Can.), sect. 12 [para. 48].

Counsel:

Emilio S. Binavince and Riri Shen, for the applicant;

Josephine Palumbo, for the respondent.

Solicitors of Record:

Binavince, Merner, Burton, Massie, Ottawa, Ontario, for the applicant;

George Thomson, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard in Ottawa, Ontario, on October 8 and 29, 1996, before MacKay, J., of the Federal Court of Canada, Trial Division, who delivered the following judgment on May 12, 1997.