A-24-74
Sai Yau Fan (Applicant)
v.
Minister of Manpower & Immigration (Respond-
ent)
Court of Appeal, Jackett C.J., Mackay and
Sweet D.JJ.—Toronto, June 27, 1974
Judicial review—Immigration—Admission to Canada as
student—Seeking work visa to remain in Canada—Deporta-
tion ordered for lack of immigrant visa—Deportation order
set aside—Immigration Act, R.S.C. 1970, c. 1-2, ss. 7, 22,
23, An Act respecting certain Immigration Laws and Proce
dures S.C. 1973-74, c. 28—Immigration Regulations, s. 18—
Federal Court Act, s. 28.
The applicant was admitted to Canada as a non-immigrant
student in September, 1973. In subsequent discussion with
immigration officers, concerning a work visa acquired for
his employment as a graduate assistant, the applicant
indicated his desire to remain in Canada. An immigration
officer's report under section 22 of the Immigration Act
recommended against permanent admission on the ground
that the applicant lacked a valid immigrant visa as required
by section 28(1) of the Immigration Regulations, Part I.
Following the report an inquiry was made and deportation
ordered. The applicant moved to set aside the order, under
section 28 of the Federal Court Act.
Held, the order for deportation should be set aside. The
applicant entered Canada as a non-immigrant; nothing hap
pened to change his status as such; and section 7(3) of the
Immigration Act never came into operation. Hence the
inquiry under section 23(2) was probably of no legal effect
and could not support a deportation order. The applicant
was not, at the time of the section 22 report, a person
seeking to enter Canada, and was not, at that time, deemed
to be such a person, and could not therefore be ordered to
be deported for lack of an immigrant visa, as contemplated
by section 28(1) of the Immigration Regulations, which
applied only in the case of a person seeking to be admitted
to Canada.
Morrison v. Minister of Manpower and Immigration
[A-33-74]; Koo Shew Wan y. Minister of Manpower and
Immigration [1973] F.C. 578, considered. Podlaszecka
v. Minister of Manpower and Immigration [1972] S.C.R.
733, distinguished.
APPLICATION to set aside deportation order.
COUNSEL:
B. A. Thomas for applicant.
A. C. Pennington and R. G. Vincent for
respondent.
SOLICITORS:
Thomas and Rye, Toronto, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
delivered orally in English by
JACKETT C. J.: This is an application under
section 28 of the Federal Court Act to set aside
a deportation order made by a Special Inquiry
Officer under the Immigration Act.
The applicant was admitted to Canada as a
non-immigrant student on September 4, 1973,
for a period of one year and thereupon com
menced a course of studies at the University of
Toronto. In September of that year he was
interviewed by immigration officers as a result
of problems concerning a work visa required so
that he could take employment as a graduate
assistant in the department of the University
where he was a student. During the course of
the interviews with the immigration officers, he
indicated that he desired to remain in Canada
permanently. Indeed, it would seem that he
indicated that it was his intention to stay in
Canada permanently. A report was thereupon
made, on September 21, 1973, by an immigra
tion officer to a Special Inquiry Officer, which
purported to be a "Report under section 22 of
the Immigration Act". That report reads as
follows:
1. SAI YAU FAN entered Canada as a non-immigrant. He has
now reported to the undersigned in accordance with subsec
tion 7(3) of the Immigration Act, and, is seeking admission
to Canada for permanent residence.
2. Pursuant to section 22 of the Immigration Act, I have to
report that I have interviewed and examined SAI YAU FAN
and in my opinion, he is not a Canadian citizen or a person
who has acquired Canadian domicile.
3. I am also of the opinion that it would be contrary to the
Immigration Act and Regulations to grant his admission to
Canada for permanent residence because he is a member of
the prohibited class of persons described in paragraph 5(t)
of the Immigration Act in that he does not fulfil or comply
with the conditions and requirements of the Immigration
Regulations Part 1, amended, by reason of:
He is not in possession of a valid and subsisting immi
grant visa as required by subsection (1) of section 28 of
the said Regulations.
Following such report, an inquiry was held as a
result of which the applicant was ordered
deported. This section 28 application has been
brought to have the deportation order set aside.
Section 22 of the Immigration Act reads as
follows:
22. Where an immigration officer, after examination of a
person seeking to come into Canada, is of opinion that it
would or may be contrary to a provision of this Act or the
regulations to grant admission to or otherwise let such
person come into Canada, he may cause such person to be
detained and shall report him to a Special Inquiry Officer.
That section only applies, of its own force, to a
case where a person was, in fact, "seeking to
come into Canada" at the time when the officer
formed the opinion "that it would or may be
contrary to a provision of [the] Act or the
regulations to grant admission to or otherwise
let such person come into Canada". It does not
apply, of its own force, to a person, such as the
applicant, who had already been allowed to
come into Canada and is, as a result, still in
Canada.
The validity of the proceedings in this case
and the resulting deportation order must, there
fore, depend on the applicability, in the circum
stances, of section 7(3) of the Immigration Act,
which reads as follows:
(3) Where any person who entered Canada as a non-immi
grant ceases to be a non-immigrant or to be in the particular
class in which he was admitted as a non-immigrant and, in
either case, remains in Canada, he shall forthwith report
such facts to the nearest immigration officer and present
himself for examination at such place and time as he may be
directed and shall, for the purposes of the examination and
all other purposes under this Act, be deemed to be a person
seeking admission to Canada.
As appears from the wording of section 7(3),
that subsection only applies where a person who
had entered Canada as a non-immigrant either
(a) ceased to be a non-immigrant, or
(b) ceased to be in the particular class in
which he was admitted as a non-immigrant,
and
in either case, had thereafter remained in
Canada. Such a person is required by section
7(3) to report such facts to an immigration offi
cer and is deemed, by that subsection, "to be a
person seeking admission to Canada". The
result of his being deemed to be a person seek
ing admission to Canada, when the section
applies, in my opinion, is that
(a) an inquiry can then be launched by a sec
tion 22 report, and
(b) by virtue of section 1 of chapter 28 of the
Statutes of 1973, the visa requirement of
Regulation 28(1) is applicable.'
However, if section 7(3) is not applicable, it
would not appear that either section 22 or Regu
lation 28(1) is applicable in the case of a person
who has been allowed to come into Canada as a
non-immigrant.
In this case, the applicant entered Canada as a
non-immigrant but nothing happened after he
entered Canada to change his status as such
and, in my view, section 7(3) never came into
operation. Compare Koo Shew Wan v. Minister
of Manpower and Immigration. 2
' Compare the recent decision of this Court in Morrison v.
Minister of Manpower and Immigration [A-33-74].
2 [1973] F.C. 578.
Section 2 of chapter 28 of the Statutes of 1973-74, which
is the only provision that I know of where section 7(3) is
given a broader application than that provided by its own
terms, has no application in this case as it only applies in the
case of a person who made application for permanent resi
dence before November 6, 1972.
In my view Podlaszecka v. Minister of Manpower and
Immigration [1972] S.C.R. 733, does not apply to the cir
cumstances of this case. It is true that it was there held that
"On making an application for permanent residence in
Canada while in the country as a non-immigrant, the appel
lant took herself out of section 19(l)(e)(iv) of the Act and
came within section 7(3) which required that she present
herself for examination". It was not, however, laid down
that section 7(3) would apply in any case where a person
who entered as a non-immigrant had not remained in Canada
The real basis for the deportation order in this
case, as I understand the view of the Special
Inquiry Officer, is not that the applicant entered
Canada as a non-immigrant and subsequently
changed his status but that he was not a "bona
fide" non-immigrant when he came into Canada
so that he was, at that time, a prohibited person
under section 5(p) who is now subject to depor
tation under section 18(1)(e)(iv) and (2). 3 That is
quite a different situation calling for a different
procedure and, probably, for a different onus of
proof. (I must not be taken as agreeing with the
view, apparently held by the Special Inquiry
Officer in this case, that a person who comes
into Canada as a non-immigrant is necessarily a
person who is not a bona fide non-immigrant
merely because he has a very strong desire, at
the time that he comes in, to live in Canada
permanently. Such a desire may be quite con
sistent with an intention to comply with Canadi-
an law, and only remain, or return at some
after he had, either ceased to be a non-immigrant or to be in
the particular class in which he was admitted as a non-immi
grant. Moreover, it is clear that, by virtue of legislative
action since the Podlaszecka decision, a person cannot now
obtain an immigrant visa by applying to an immigration
officer in Canada (see Regulations 2(h) and 28(1)) and it is
inconceivable that the occasion for applying the Podlaszecka
decision on that point would arise again.
Those provisions read as follows:
5. No person, other than a person referred to in subsec
tion 7(2), shall be admitted to Canada if he is a member of
any of the following classes of persons:
(p) persons who are not, in the opinion of a Special
Inquiry Officer, bona fide immigrants or non-immigrants;
18. (1) Where he has knowledge thereof, the clerk or
secretary of a municipality in Canada in which a person
hereinafter described resides or may be, an immigration
officer or a constable or other peace officer shall send a
written report to the Director, with full particulars,
concerning
(e) any person, other than a Canadian citizen or a person
with Canadian domicile, who
(iv) was a member of a prohibited class at the time of
his admission to Canada,
(2) Every person who is found upon an inquiry duly held
by a Special Inquiry Officer to be a person described in
subsection (1) is subject to deportation.
subsequent time, as and when he is permitted to
do so in accordance with the law.)
As section 7(3) did not apply in this case, I
am of opinion that the inquiry resulting in the
deportation order probably was of no legal
effect and cannot support a deportation order.
What is more important is that I am firmly of
opinion that the applicant was not, at the time
that the section 22 report was made, a person
seeking to come into Canada, and was not, at
that time, deemed to be such a person, and
could not therefore be ordered to be deported
for not having a valid and subsisting immigrant
visa as contemplated by Regulation 28(1), which
only applies in the case of a person seeking to
be admitted to Canada. 4
If section 7(3) had been applicable in the
circumstances, it would have been necessary to
consider whether the applicant had been given a
fair opportunity of answering the allegations
that were being made against him. Before that
question could be decided, it may well be that
the respondent would have had to be allowed to
cross-examine on the affidavits filed by the
applicant and to file affidavits of his own.
I am of opinion that the deportation order
should be set aside.
* * *
MACKAY D.J. concurred.
* * *
SWEET D.J. concurred.
4 Regulation 28(1), by its terms, applies to a person who
"seeks to land" in Canada and "landing", by virtue of
section 2 of the Act, means "lawful admission ... to
Canada for permanent residence".
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.