A-426-74
Angelos Litas (Applicant)
v.
Minister of Manpower and Immigration
(Respondent)
Court of Appeal, Thurlow and Ryan JJ. and
MacKay D.J.—Toronto, February 18 and 19,
1975.
Judicial review—Immigration—Entry as visitor—Immi-
grant obtaining document to remain for employment—Over-
staying—Document found false—Deportation—Immigration
Act, R.S.C. 1970, c. I-2, ss. 2, 7 and 18—Federal Court Act, s.
28.
The applicant was admitted to Canada as a non-immigrant
visitor for a three-month period expiring November 11, 1973.
On November 1, 1973, he purchased, from a person not fully
identified, a document on a form of the Department of Man
power and Immigration, purporting to be an admission record
and employment visa, signed by an immigration officer, grant
ing the applicant admission to Canada, under section 7(1)(h) of
the Immigration Act, until October 31, 1974, with permission
to take temporary employment. The applicant worked for the
employer named in the document until November 1974, when
he sought an extension from the Department. The document
was found to be forged. After an inquiry, an order was made
for the deportation of the applicant, as a person described in
section 18(1)(e)(vi) of the Immigration Act, in that he entered
Canada as a non-immigrant and remained there after ceasing
to be a non-immigrant, and in section 18(1)(e)(viii), in that he
remained in Canada with an improperly issued visa. The appli
cant brought a section 28 application for judicial review and
setting aside of the decision.
Held, the application should be dismissed.
Per Thurlow J.: Besides overstaying the limited period for
which he was admitted as a non-immigrant visitor, under
section 7(1)(c) of the Immigration Act, the appellant stayed on,
not as a visitor, but as a person admitted under section 7(1)(h)
for temporary employment, and accepted employment as a
person in that class. He was no longer in the class of visitor, so
he was no longer a non-immigrant as defined in section 2 of the
Immigration Act. This failure to comply with section
18(1)(e)(vi) of the Act was sufficient to support the deporta
tion order. As to the second ground, based on the first part of
section 18(1)(e)(viii) of the Act, the mere possession by the
applicant of the false document satisfied one requirement of the
statute. The other requirement, that the document should
pertain to the applicant's admission, was met by the fact that
the document purported to be a record of the applicant's
admission to Canada as a non-immigrant of a particular class
as well as a person able to take employment.
Per Ryan J.: The deportation should be upheld on the first
ground. It was unnecessary to decide whether it was supported
by the second ground.
De Marigny v. Langlais [1948] S.C.R. 155 and Brooks v.
Minister of Manpower and Immigration [1974] S.C.R.
850, followed. In re Morrison [1974] 2 F.C. 115, applied.
JUDICIAL review.
COUNSEL:
B. North, Q.C., for applicant.
K. Braid for respondent.
SOLICITORS:
Phillips & Phillips, Toronto, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
delivered orally in English by
THURLow, J.: The applicant was admitted to
Canada under paragraph 7(1)(c) of the Immigra
tion Act as a non-immigrant visitor or tourist on
August 12, 1973 for a period of three months
expiring on November 11, 1973. On or about
November 1, 1973, he obtained from a person
known to him as "Takie", whom he met in a
restaurant and to whom he paid $250.00 in the
belief that he had some influence with the Depart
ment of Manpower and Immigration, a document
on a departmental form purporting to be an admis
sion record and employment visa and purporting to
be signed by an immigration officer, granting the
applicant admission to Canada under paragraph
7(1)(h) of the Immigration Act until October 31,
1974, and permission to take employment. There
after the applicant worked for the employer named
in the document until November 1974, when at the
suggestion or direction of the employer, the appli
cant attended at an immigration office in quest of
an extension. It was then discovered that the docu
ment was forged. A report under section 18 and an
inquiry followed at the conclusion of which it was
ordered that the applicant be deported on grounds
expressed as follows:
(3) You are a person described in subparagraph 18(1)(e)(vi) of
the Immigration Act in that you entered Canada as a non-
immigrant and remain therein after ceasing to be a
non-immigrant;
(4) You are a person described in subparagraph 18(1)(e)(viii)
of the Immigration Act in that you have remained in Canada
with an improperly issued visa;
The statutory provisions referred to read as
follows:
18. (1) Where he has knowledge thereof, the clerk or secre
tary 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
(vi) entered Canada as a non-immigrant and remains
therein after ceasing to be a non-immigrant or to be in the
particular class in which he was admitted as a
non-immigrant,
(viii) came into Canada or remains therein with a false or
improperly issued passport, visa, medical certificate or
other document pertaining to his admission or by reason of
any false or misleading information, force, stealth or other
fraudulent or improper means, whether exercised or given
by himself or by any other person.
Under subsection 18(2) any such person is sub
ject to deportation.
Moreover it is settled by de Marigny v.
Langlais' that if either of the two grounds of the
deportation order above cited is sustainable in law
the order is valid.
The applicant's submission with respect to para
graph 18(1)(e)(vi), as I understood it, was that
granting that the document obtained from "Takie"
was void the applicant was not aware of it and so
must be regarded as being still a visitor or tourist
in Canada, albeit one who has inadvertently over
stayed the period for which he had permission to
be in Canada, and that something more must have
occurred such as an intent to stay illegally or the
obtaining of a new status to put him in the catego
ry of a person who has ceased to be a non-immi
grant. The answer of counsel for the respondent to
[1948] S.C.R. 155 per Kellock J. at 160.
this was that upon the termination of the initial
three-month period for which the applicant was
admitted as a visitor or tourist the applicant ceased
to be in the class in which he was admitted as a
non-immigrant and that since he was not thereaf
ter allowed to enter or be in Canada in that or any
other class of non-immigrant he also ceased to be a
non-immigrant as defined by the statute.
The relevant statutory provisions are the
following:
2. In this Act
"Non-immigrant" means a person who is a member of any of
the classes designated in subsections 7(1) and (2);
"entry" means the lawful admission of a non-immigrant to
Canada for a special or temporary purpose and for a limited
time;
7. (1) The following persons may be allowed to enter and
remain in Canada as non-immigrants namely:
(c) tourists or visitors;
(h) persons engaged in a legitimate profession, trade or
occupation entering Canada or who, having entered, are in
Canada for the temporary exercise of their respective
callings;
The submission of counsel for the respondent as
to the effect of these provisions appears to me to
be supported by a footnote to the judgment of this
Court in In re Morrison 2 where at page 123 the
Chief Justice said:
(b) The application of section 7(3) of the Immigration Act
to these facts is based on the view that, when section 7(3)
speaks of the "particular class in which he was admitted as a
non-immigrant", the "limited time" for which he was admit
ted enters into the definition of the "class" as opposed to the
view that the section refers only to the classes enumerated in
section 7(1), which latter view is the view suggested by a
superficial reading of section 7(1) and (3). I have adopted
this view because the definition of "entry" in section 2
clearly indicates that a non-immigrant is to be admitted not
only for "a special or temporary purpose" but is also to be
admitted for "a limited time" and because the machinery of
the Act would be useless to enforce the limitations on time
unless such a limitation enters into the definition of a "par-
ticular class" for the purposes of section 7(3).
2 [1974] 2 F.C. 115.
As far as I am aware there is no other expression
of opinion on the point but while I am in no way
inclined to disagree with the view so taken, it does
not appear to me to be necessary for the purposes
of the present case to reach any concluded view on
it. Whether or not by merely overstaying a period
for which he is admitted a person ceases to be in
the class of non-immigrant in which he was admit
ted, the present case, as it seems to me, is one in
which besides merely overstaying the limited
period, the applicant stayed on not as a tourist or
visitor but as a person admitted under paragraph
7(1)(h) and who thereupon took employment and
continued in employment as a person in that class.
He was not, however, in that class and as he was in
my view no longer in the class of tourist or visitor,
it appears to me to follow that he was no longer a
non-immigrant as defined by the statute. The
attack on paragraph 3 of the deportation order in
my opinion therefore fails.
With respect to paragraph 4 of the deportation
order it should first be observed that it is a finding
under the first portion of paragraph 18(1)(e)(viii)
and not under the second portion of that para
graph. It was not suggested that the document
obtained by the applicant from "Takie" was not a
false document but counsel submitted (1) that the
finding was erroneous because the applicant acted
on an honest belief that the document was valid
and (2) that it was not a visa or other document
"pertaining to his admission" within the meaning
of paragraph 18(1)(e)(viii).
In Minister of Manpower and Immigration v.
Brooks', Laskin J. (as he then was) speaking for
the Supreme Court with respect to the second
portion of paragraph 18(1)(e)(viii) inter alia said
at page 865:
Again, since criminal punishment is not the object of the
enforcement of immigration and deportation policies by means
of special inquiries, I cannot be persuaded that intentional or
wilful deception should be read in as a prerequisite. It was
noted by counsel, as well as by the Board, that mens rea is
3 [1974] S.C.R. 850.
made a condition of culpability under s. 50(b) and (/) [now s.
46] which sets out criminal offences, and hence is of a different
order than what is prescribed by ss. 19 and 26.
It appears to me that this part of the Court's
reasoning is equally applicable to the first portion
of paragraph 18(1)(e)(viii).
Earlier in the reasons the learned Judge had
said at page 858:
The Board appeared to be of opinion that only "official"
documents are covered by s. 19(1)(e)(viii), and that to be
"official" a document must be expressly mentioned in the Act
or Regulations. There is no requirement of officiality as the
Board would have it. The basic questions are whether the
documents are authorized, that is, is their source legitimate,
and do they relate to admission to Canada. If there is any
difficulty in subsuming Form 471 under s. 19(1)(e)(viii), it lies
in bringing it within the words "remains [in Canada] with a
false ... document pertaining to his admission". "With" in this
connection is not limited in meaning to "possessed of" but,
contextually, extends to "agreeably to" or "because of", or "by
use of". Certainly, Brooks was not possessed of his Immigrant
Record Card, and yet the Board found it was a document
pertaining to his admission.
It seems to me to follow from this that the
applicant's mere possession of the false document
satisfies the requirement of the word "with" in the
statute and leaves unresolved only the question
whether it was a document pertaining to the appli
cant's admission. Plainly it was not a document
used in connection with his admission to Canada
upon his arrival, since it was not then in existence.
But it should not be overlooked that as a document
it purports to be a record of the applicant's admis
sion to Canada as a non-immigrant of a particular
class as well as a permission to take employment.
In that sense it appears to me to pertain to the
applicant's admission. During the period stated in
it that was the applicant's authority for his admis
sion and presence replacing or supplanting, as it
purported to do, his earlier entry record numbered
A5580621. It is what he produced when he sought
an extension.
I am, accordingly, inclined to think both that
mens rea is unnecessary to the application of
paragraph 18 (1)e) (viii) and that the document in
question is a document pertaining to the appli-
cant's admission to Canada within the meaning of
that paragraph and that in consequence the attack
on paragraph 4 of the deportation order also fails.
As I see it, however, it is unnecessary to reach a
concluded view on this branch of the case since my
conclusion that paragraph 3 of the deportation
order is valid is sufficient to dispose of the
application.
In my opinion the application should be
dismissed.
* * *
The following are the reasons for judgment
delivered orally in English by
RYAN J.: In my view, the deportation order in
question is supportable on the basis of the first
three paragraphs of the order. The Special Inquiry
Officer properly found that the applicant was not a
Canadian citizen; was not a person having Canadi-
an domicile; and that he was a person described in
subparagraph 18(1)(e)(vi) of the Immigration Act
in that he entered Canada as a non-immigrant and
remained in Canada after ceasing to be a
non-immigrant.
The applicant overstayed the three-month
period he had been permitted on his admission as a
tourist or visitor. During the period he remained,
he engaged in work on a regular basis on the
strength of the false document purporting to admit
him with a subsection 7(1)(h) status. Such con
duct was obviously inconsistent with tourist or
visitor status and was enough to destroy it even if,
as is probably not the case, the overstaying of the
period of permissible presence was not in itself
sufficient to put an end to the status. I would also
note that there is nothing in the record to indicate
that the applicant continued to be a non-immi
grant on some basis other than that of being a
tourist or visitor.
It is not necessary to decide whether the depor
tation order is also supportable on the ground set
out in its paragraph (4), which reads:
You are a person described in subparagraph 18(1)(e)(viii) of
the Immigration Act in that you have remained in Canada with
an improperly issued visa.....
I therefore refrain from expressing an opinion on
this point.
I would dismiss the application.
* * *
MACKAY D.J. concurred.
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.