A-429-80
Baljit Singh Gill (Applicant)
v.
Minister off Employment and Immigration
(Respondent)
Court of Appeal, Thurlow C.J., Ryan J. and
MacKay D.J.—Toronto, September 18 and 19,
1980.
Judicial review — Immigration — Exclusion order —
Applicant who came to Canada to marry his fiancée was in
possession of a return ticket valid for 120 days — Decision by
Adjudicator that he is not a genuine visitor since no specific
time was fixed for his departure — Whether applicant is a
genuine visitor — Application allowed — Immigration Act,
1976, S.C. 1976-77, c. 52, s. 19(1)(h) — Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
APPLICATION for judicial review.
COUNSEL:
Carter Hoppe for applicant.
G. R. Garton for respondent.
SOLICITORS:
Abraham, Duggan, Hoppe, Niman, Stott,
Toronto, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
THURLOW C.J.: This is an application under
section 28 of the Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, to review and set aside an
exclusion order made against the applicant on the
ground that he is not a genuine visitor.
The applicant's evidence was not contradicted in
any way. He was not shown to have misrepresent
ed anything at any stage. His story that he came to
Canada for the purpose of marrying his fiancée in
fulfilment of an engagement of three years stand
ing that had been arranged by his and his fiancée's
parents before the fiancée left India to come to
Canada was accepted as credible in light of evi
dence of the ill health of his fiancée's mother. It is
also undisputed that on arrival in Canada the
applicant was in possession of a return ticket valid
for 120 days. His fiancée's application to sponsor
him as an immigrant had previously been refused.
He freely admitted he would like to stay and
would stay in Canada as long as he was allowed to
do so but also said on his oath that he did not
intend to remain beyond such time as he might be
permitted to remain as a visitor.
The following appears at page 25 of the
transcript:
ADJUDICATOR: One other thing, your ticket's valid for a hun
dred and twenty days; that's four months. I'll tell you right
now, I couldn't really admit you for a hundred and twenty days,
so, how long do you wish to remain in Canada as a visitor?
PERSON CONCERNED: It would depend on up to how much you
want to give me permission.
In the course of his reasons, after accepting the
applicant's evidence as to the occasion for his
coming to Canada the Adjudicator said:
The fact that you kept saying throughout the inquiry that you
would stay in Canada as long as you were given, and the fact
that you have just married, leads me to doubt that you would
ever want to return to India at all. I believe that when you left
India, you have every intention of remaining here as long as
possible. It is more probable than not that you, as a married
man, and with your wife going through the possible heartbreak
of a very sick mother, you would do everything possible to
remain in Canada.
It's very difficult for me to see how you can be a genuine visitor
if you do not have a specific time period by which you wish to
leave Canada, and I realize the ticket is valid for one hundred
and twenty days, but I still referred throughout the inquiry the
fact that you were uncertain as to when you were to return to
India. This is a case in my opinion where the evidence on both
sides is even, and I have to refer to the burden of proof, and I
find that you haven't met the burden of proof, and therefore
that you are a person described in paragraph 19(1)(h) of the
Immigration Act, a person who is not a genuine visitor, and I
must order you excluded from Canada.
With respect, it appears to me that the
Adjudicator misdirected himself with respect to
the need for a more specific time period, in the
circumstances of this case.
The applicant wished to stay as long as he would
be allowed to stay as a visitor and several times
expressed himself as intending to stay as long as
the Adjudicator would allow. In my opinion there
is nothing in such an intention that is inconsistent
with the applicant's purpose being regarded as
temporary within the meaning of the statutory
definition of "visitor" or with the applicant being a
genuine visitor. The purpose is sufficiently specific
in being for the time an officer would authorize
him to remain as a visitor. Moreover, it is apparent
from the Adjudicator's statement that he regarded
the evidence on both sides as even and from his
reliance on the burden of proof to reach his conclu
sion, that the misdirection to which I have referred
is of critical importance to his conclusion.
In my opinion the exclusion order should be set
aside and the matter should be referred back to an
Adjudicator for reconsideration and redetermina-
tion on the basis that the fact that the applicant
did not have a specific time fixed for his departure
from Canada and did not ask for a particular
number of days is not, in the circumstances of this
case, evidence that he is not a genuine visitor.
* * *
RYAN J.: I concur.
* * *
MACKAY D.J.: I concur.
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.