A-365-81
Sammy Parcho (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
Court of Appeal, Heald and Ryan JJ. and
MacKay D.J.—Toronto, October 1; Ottawa, Octo-
ber 19, 1981.
Judicial review — Immigration — Application to set aside
exclusion order — Applicant was approved as an applicant
under the 1973 Adjustment of Status Program — Applicant
has never produced a valid passport — In 1981, applicant
attempted to cross the American border, but was arrested and
later ordered to be deported — Relying on subss. 12(1) and (2)
of the Immigration Act, 1976, a Canadian immigration officer
prepared a report on the basis that the applicant was an
immigrant seeking admission to Canada to establish perma
nent residence, but that he was inadmissible because he lacked
a valid passport — An exclusion order was subsequently made
based on the applicant's failure to obtain a visa before appear
ing at a port of entry — Whether applicant was required to
have a visa or a passport when returning to Canada from a
temporary absence in the U.S.A. since his application under
the 1973 Adjustment of Status Program had not been finally
dealt with — Application dismissed — Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, s. 28 — Immigration Act,
1976, S.C. 1976-77, c. 52, ss. 9(1), 12(1),(2), 20(1), 27(2)(d),
128 — Interpretation Act, R.S.C. 1970, c. 1-23, s. 35 —
Immigration Regulations, 1978, SOR/78-172, s. 14(1)(a).
Nagra v. Minister of Employment and Immigration
[1980] 2 F.C. 10, applied. Smalenskas v. Minister of
Employment and Immigration [1979] 2 F.C. 145,
distinguished.
APPLICATION for judicial review.
COUNSEL:
B. Knazan for applicant.
T. James for respondent.
SOLICITORS:
Knazan, Jackman & Goodman, Toronto, for
applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
HEALD J.: This is a section 28 application to
review and set aside an exclusion order made by
Adjudicator, J. E. Kenney, against the applicant
on June 19, 1981.
The applicant, a citizen of Nigeria, first came
into Canada in 1972 as a non-immigrant visitor.
He subsequently registered and was provisionally
approved as an applicant under the Adjustment of
Status Program of 1973 (hereinafter referred to as
the 1973 Immigration Amnesty Program) with a
view to remaining permanently in Canada. The
applicant satisfied the initial qualifying criteria
under this Program, he took the usual health
examination and was given departmental approval
to engage in unrestricted employment in Canada
while his application was being processed. There
remained only one requirement to be fulfilled by
the applicant before his application could be final
ized, namely, the production by him of a valid or
unexpired passport since his original Nigerian
passport had been lost earlier.
The immigration officials in Toronto dealing
with this application advised the applicant to con
tinue his efforts to acquire a passport and the
application remained open well beyond 1973. He
has never been able to obtain a Nigerian passport.
The Nigerian Consulate in Ottawa demanded a
guarantor and as the applicant has no living rela
tives in Nigeria, he has been unable to obtain a
guarantor. On October 27, 1975, the applicant was
convicted in Canada of the offence of indecent
exposure. The Crown proceeded by way of sum
mary conviction and the penalty imposed was a
six-month suspended sentence with probation. The
applicant did not return to the Commission after
1976 since he was still unable to obtain a passport.
On June 25, 1980, the applicant was convicted of
illegal possession of hashish. On December 17,
1980, a report was made pursuant to section 27 of
the Immigration Act, 1976, S.C. 1976-77, c. 52,
on the basis of the 1975 indecent exposure convic
tion and alleging the applicant was inadmissible
pursuant to the provisions of paragraph 27(2)(d)
of the Immigration Act, 1976. The inquiry date
was set for May 11, 1981. On May 3, 1981, the
applicant attempted to go to Buffalo, New York,
U.S.A. to deliver an application for a Nigerian
passport to a friend who was travelling to Nigeria
the next day, the friend having advised him that he
would only take the application if the applicant
delivered it to him in the U.S.A. At the U.S.A.
border, the applicant posed as a Canadian citizen.
He was, however, refused admission by the U.S.
authorities, was taken into custody and paroled
into the United States. On May 8, 1981, he was
ordered deported by a U.S. Immigration Judge
and then presented himself for admission at the
Canadian border. A Canadian immigration offi
cer, relying on the provisions of subsection 12(1)
and subsection 12(2) of the Immigration Act,
1976', prepared a report pursuant to subsection
20(1) on the basis that the applicant was an
immigrant seeking to come into Canada to estab
lish permanent residence but that he was inadmis
sible because he lacked a passport and visa as well
as evidence of adequate financial resources or
arrangements. Subsequent to the section 20 report
(supra) an inquiry was convoked at the conclusion
of which the exclusion order herein impeached was
made by Adjudicator Kenney. The exclusion order
was based firstly on the applicant's failure to make
an application for and obtain a visa before appear
ing at a port of entry as required by subsection
9(1) of the Act, and, secondly, he was not in
possession of an unexpired passport issued to him
by Nigeria as required by paragraph 14(1)(a) of
the Immigration Regulations, 1978, SOR/78-172.
The applicant's sole attack on the legality of the
exclusion order is based on the decision of this
Court in Smalenskas v. Minister of Employment
and Immigration 2 and is to the effect that since
the applicant had applied for permanent residence
' Said subsections 12(1) and 12(2) read as follows:
12. (1) Every person seeking to come into Canada shall
appear before an immigration officer at a port of entry, or at
such other place as may be designated by a senior immigra
tion officer, for examination to determine whether he is a
person who shall be allowed to come into Canada or may be
granted admission.
(2) For the purposes of this section, where a person leaves
Canada and thereafter seeks to return to Canada, whether or
not he was granted lawful permission to be in any other
country, he shall be deemed to be seeking to come into
Canada.
2 [1979] 2 F.C. 145.
under the provisions of the 1973 Immigration
Amnesty Program and since that application had
never been finally dealt with by the Immigration
authorities, the provisions of subsections 12(1) and
(2) supra, of the Act, did not apply to him and he
was therefore not required to have a visa or a
passport when returning to Canada from a tempo
rary absence in the U.S.A.
The Smalenskas decision (supra) held that a
person who was qualified to register and did regis
ter under the 1973 Immigration Amnesty Program
became a member of a privileged class entitled to
be accorded treatment more favourable than that
usually applied to other immigrants and put such a
person in the category of "deemed immigrant".
The Court accordingly held that the Adjudicator
erred in law in holding that the applicant, by the
mere fact of leaving Canada, had automatically
lost the status or advantage gained by him under
the 1973 Immigration Amnesty Program. It was
the view of the Court that the applicant was
entitled to have his amnesty application finally
decided (in the absence of evidence of abandon
ment thereof by him) and until that determination,
he retained his deemed immigrant status which
would not automatically be lost by a short visit to
the U.S.A.
In my view, Smalenskas (supra), can be distin
guished from the case at bar on its facts. The two
visits to the U.S.A. by Smalenskas occurred in
1975. In the case at bar, applicant's visit to the
U.S.A. took place in 1981.
The Adjustment of Status Program came into
force by virtue of an Act to amend the Immigra
tion Appeal Board Act, S.C. 1973-74, c. 27. The
Immigration Appeal Board Act was repealed by
section 128 of the Immigration Act, 1976, effec
tive April 10, 1978. Thus, the special status accru
ing to the applicant under the 1973 Immigration
Amnesty Program was extinguished as of April 10,
1978 unless it can be said that section 35 of the
Interpretation Act 3 altered the situation. In my
view, that section does not assist this applicant
because no right or privilege accrued to him under
the 1973 Immigration Amnesty Program. Had he
been in a position to comply with the remaining
condition precedent (i.e., a valid passport), then,
perhaps, he could be said to have acquired the
right to have a final determination of his applica
tion. This is another factual difference which dis
tinguishes the case at bar from Smalenskas
(supra). In Smalenskas (supra), there was no
unfulfilled condition precedent preventing the
Commission from making a decision on the amnes
ty application. In this case, the facts are, in my
view, somewhat analogous to the situation in the
case of Nagra v. Minister of Employment and
Immigration 4 where the Court held that a person
who, pursuant to the deeming provisions of subsec
tion 7(3) of the 1952 Immigration Act, R.S.C.
1952, c. 325, (repealed April 10, 1978) would have
been deemed to be a person seeking admission to
Canada, acquired no "right" or "privilege" there-
under within the meaning of section 35 of the
Interpretation Act (supra). As in Nagra (supra),
it is my view that the applicant here, after the
repeal of the amnesty program, lost any special
status which he had acquired thereunder and,
consequently, was in the same position as any
other immigrant seeking to come into Canada. On
this basis, the Adjudicator did not, in my view,
commit any error in making the exclusion order.
For these reasons, I would dismiss the section 28
application.
* * *
RYAN J.: I COMM'.
* *
MACKAY D.J.: I concur.
3 Section 35 of the Interpretation Act, R.S.C. 1970, c. I-23
reads in part as follows:
35. Where an enactment is repealed in whole or in part,
the repeal does not
(c) affect any right, privilege, obligation or liability
acquired, accrued, accruing or incurred under the enact
ment so repealed;
4 [1980] 2 F.C. 10.
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.