A-449-75
Eric Barrington Francis (Appellant)
v.
Minister of Manpower and Immigration
(Respondent)
Court of Appeal, Urie and Le Dain JJ. and
MacKay D.J.—Toronto, June 15 and 16, 1976.
Jurisdiction—Immigration—Immigration Appeal Board
dismissing appeal for want of jurisdiction—Appellant admit
ted as visitor—Applying for permanent residence—Convicted
of offences—Ordered deported—Whether right of appeal
Immigration Act, R.S.C. 1970, c. I-2, ss. 5, 7, 11, 18(1)(e) as
am. S.C. 1973-74, c. 27, ss. 5, 7, 8.
Appellant entered Canada February 9, 1972, and was admit
ted as a visitor for a period expiring April 6, 1972. On April 5,
1972, he filed an intent to apply for permanent residence,
followed by an application on May 19, 1972, and was advised
that he would be approved. No decision occurred for several
months, and, on October 17, 1973, he was convicted of two
offences. On April 23, 1974, a section 22 report was made, and
he was ordered deported. The issue before the Board was
whether appellant had the right of appeal. While clearly he was
not entitled to appeal under section 11(1) of the Immigration
Appeal Board Act as amended, appellant contended that he
came within section 7 of the amending Act in that he was
deemed by section 8(1) of the amending Act to have reported
in accordance with section 7(3) of the Immigration Act and to
have applied for admission as an immigrant. The Board seems
to have accepted that he purported to register under section 8
of the amending Act within the 60 days specified therein, but
concluded that he was not a person contemplated by section 8,
their reasoning being that the section did not contemplate
persons who enjoyed a legal status in Canada during the 60-day
period, but rather, persons who had entered or remained illegal
ly. Thus, it found that, as he could not register under section 8
of the amending Act, appellant did not come within the terms
of section 7 of that Act and had no right of appeal.
Held, the appeal is dismissed. The Board did not err in law.
It is reasonable to conclude from section 8(1)(b) of the amend
ing Act that the section was intended to apply to persons
coming within the description in any subparagraphs (vi) to (x),
inclusive, of section 18(1)(e) of the Act as persons who would
otherwise be considered to have entered or remained illegally.
The purpose of section 8 was to permit persons who entered
Canada before a certain date and remained therein since and
came within any of the categories to apply for admission as an
immigrant without being liable to be refused on the ground of
having entered or remained illegally. Section 8(2) of the
amending Act is not necessarily inconsistent with this view, but
may reasonably be construed as applying to persons coming
within any of the above-mentioned subparagraphs of section
18(1)(e), but who had been the subject of arrest, report or
deportation order within the meaning of the subsection. Appel
lant could only contend to come under subparagraph (vi). He
must be considered to have received an extension of his non-
immigrant visitor status when he filed the intent to apply April
5 and on May 19, when he filed the application and was
assured that it would be approved. This status was not
automatically terminated by the commission of the offences in
April and May of 1973, nor was his application rejected before
his conviction since, according to the Board, he testified that on
registering under section 8(1), he was told that there were
outstanding charges against him, and he should wait for them
to be cleared up. Thus, he did not come within section
18(1)(e)(vi), nor any of the other subparagraphs specified in
section 8(1)(b) of the amending Act. He was not entitled to
register under said section 8; he did not come within the terms
of section 7 of the amending Act; and had no right of appeal.
And there is no merit to his claim that section 11 (as amended)
should not apply to a person who had applied for residence
before the amending Act took effect, since such a retrospective
operation could destroy an acquired or "contingent" right of
appeal. Section 7 of the amended Act is clearly directed to the
extent to which the new section 11 is to apply to cases pending
after the coming into force of the amending Act. It provides
that section 11, as replaced by the amending Act, is to apply in
respect of every deportation order made on or after the day on
which the amending Act takes effect, with the exceptions set
out in paragraphs (a),(b) and (c) thereof. Appellant fits none of.
these exceptions.
APPEAL.
COUNSEL:
J. L. Pinkofsky for appellant.
G. R. Garton for respondent.
SOLICITORS:
J. Pinkofsky, Toronto, for appellant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
delivered orally in English by
LE DAIN J.: This is an appeal from the decision
of the Immigration Appeal Board pronounced on
April 8th, 1975, dismissing for want of jurisdiction
the appellant's appeal from an order of deportation
made against him on October 11th, 1974.
The appellant is a citizen of Jamaica who
entered Canada on February 9th, 1972, and subse
quent to examination was admitted as a visitor
under section 7(1)(c) of the Immigration Act for a
period to expire on April 6th, 1972. On April 5th,
1972, the appellant filed with the Department of
Manpower and Immigration an "Intent to Apply
for Permanent Residence", and on May 19th,
1972, he completed an "Application for Perma
nent Residence" and was interviewed by an immi
gration officer, who advised him that his applica
tion would be approved and gave him medical
forms to present to a doctor. According to the
decision of the Board, the appellant testified at the
inquiry that to the best of his knowledge the
medical reports were satisfactory.
No decision was taken for several months with
respect to the appellant's application for perma
nent residence. According to the decision of the
Board, the delay was apparently due to difficulty
in having the appellant's wife examined as a
dependant for admissibility.
On October 17th, 1973, the appellant was con
victed of two counts of the offence of uttering, the
offences having been committed in April and May
1973.
On April 23rd, 1974, a report under section 22
of the Immigration Act was made with regard to
the appellant, and after an inquiry, an order of
deportation was made on October 11th, 1974, on
the grounds, inter alia, that the appellant was a
member of the prohibited class described in section
5(d) of the Immigration Act in that he had been
convicted of a crime involving moral turpitude,
and that he was a member of the prohibited class
described in section 5(t) of the Act in that he was
not in possession of a valid and subsisting immi
grant visa issued in accordance with section 28(1)
of the Immigration Regulations. The appellant
appealed to the Board against this order of
deportation.
The issue before the Board was whether the
appellant had a right of appeal. It is clear that the
appellant is not a person entitled to appeal under
the terms of subsection 11(1) of the Immigration
Appeal Board Act, as enacted by section 5 of An
Act to amend the Immigration Appeal Board Act,
S.C. 1973-74, c. 27, (hereinafter referred to as the
"amending Act"), which came into force on
August 15th, 1973. Subsection 11(1) reads as
follows:
11. (1) Subject to subsections (2) and (3), a person against
whom an order of deportation is made under the Immigration
Act may appeal to the Board on any ground of appeal that
involves a question of law or fact or mixed law and fact, if, at
the time that the order of deportation is made against him, he
is
(a) a permanent resident;
(b) a person seeking admission to Canada as an immigrant
or non-immigrant (other than a person who is deemed by
subsection 7(3) of the Immigration Act to be seeking admis
sion to Canada) who at the time that the report with respect
to him was made by an immigration officer pursuant to
section 22 of the Immigration Act was in possession of a
valid immigrant visa or non-immigrant visa, as the case may
be, issued to him outside Canada by an immigration officer;
(c) a person who claims he is a refugee protected by the
Convention; or
(d) a person who claims that he is a Canadian citizen.
The appellant contended, however, that he fell
within the terms of section 7 of the amending Act,
which reads as follows:
7. Section 5 applies in respect of every order of deportation
made on or after the day on which this Act comes into force,
except where such order of deportation is made following
(a) a further examination or an inquiry held on the basis of
a report that was made by an immigration officer to a
Special Inquiry Officer pursuant to section 22 of the Immi
gration Act
(i) before the 18th day of June, 1973, or
(ii) with respect to a person who is deemed by subsection
8(1) to have reported in accordance with subsection 7(3)
of the Immigration Act and applied for admission to
Canada as an immigrant;
(b) an inquiry held on the basis of a direction that was made
pursuant to section 25 of the Immigration Act before the
18th day of June, 1973 by the Director referred to in that
section; or
(c) an inquiry held as required by section 24 of the Immi
gration Act on the basis of an arrest that was made before
the 18th day of June, 1973.
The appellant argued that he was a person who
is deemed by subsection 8(1) of the amending Act
to have reported in accordance with subsection
7(3) of the Immigration Act and to have applied
for admission to Canada as an immigrant. Subsec
tion 8(1) of the amending Act reads as follows:
8. (1) Any person in Canada who registers with an immi
gration officer for the purposes of this section on or before the
day that is sixty days after the coming into force of this Act
and who satisfies an immigration officer that he came into
Canada on or before the 30th day of November, 1972 and has
remained in Canada since that date
(a) shall be deemed to be a person who has reported in
accordance with subsection 7(3) of the Immigration Act and
applied for admission to Canada as an immigrant, and
(b) shall be deemed not to be a person described in any, of
subparagraphs 18(1)(e)(vi) to (x) of the Immigration Act,
and no proceedings may be taken against such a person under
section 46 or 48 of the Immigration Act with respect to any
matter relating to the manner in which he came into Canada or
remained in Canada before he registered with an immigration
officer for the purposes of this section.
Although it is not too clear from the terms of its
decision the Board appears to have accepted as a
fact that the appellant purported to register under
section 8 of the amending Act within the period of
sixty days specified therein, and we make the same
assumption for present purposes. The Board con
cluded, however, that the appellant was not a
person contemplated by section 8 as entitled to
register thereunder and to enjoy the effects of such
registration specified in paragraphs (1)(a) and (b)
thereof. The Board reasoned that section 8 did not
contemplate persons like the appellant, who
enjoyed a legal status in Canada during the sixty-
day period specified therein, but rather persons
who had entered or remained in Canada illegally.
Accordingly, it found that since the appellant
was not entitled to register under section 8 of the
amending Act, he did not fall within the terms of
section 7 of the said Act, and thus did not have the
right to appeal against the deportation order.
In our opinion, the Board did not err in law in
coming to this conclusion. We think that it is a
reasonable conclusion from the terms of para
graphs (1) (b) of section 8 of the amending Act
that the section was intended to apply to persons
who fall within the description in any of the sub-
paragraphs (vi) to (x) inclusive of section 18(1)(e)
of the Immigration Act as persons who would
otherwise be considered to have entered or
remained in Canada illegally for any of the rea
sons indicated therein. The purpose of section 8
was to permit persons who entered Canada before
a certain date and remained therein since that
date, and fell within any of these categories, to
apply for admission as an immigrant without being
liable to be refused on the ground that they had
entered or remained in Canada illegally. Subsec
tion (2) of section 8 of the amending Act, which
specifies the persons who may not register under
the section; is not necessarily inconsistent with this
view, but may be reasonably construed to apply to
persons who fall within any of the aforesaid sub-
paragraphs of section 18(1)(e) of the Immigration
Act, but who have been the subject of arrest,
report or deportation order within the meaning of
the subsection. The only one of the said subpara-
graphs of section 18(1)(e) in which the appellant
contended that he fell, or indeed within which he
could conceivably fall, on the accepted facts of the
case, is subparagraph (vi)--a person who "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". In our opinion the appellant must
be considered, in accordance with the view adopted
in previous decisions of this Court,' to have
received an extension of his non-immigrant visitor
status when on April 5th, 1972 he filed "An Intent
to Apply for Permanent Residence", and was given
an appointment at the Immigration Office for
examination, and again on May 19th, 1972, when
he filed "An Application for Permanent Resi
dence", was assured that his application would be
approved, and was given forms for a medical
examination. That status was not automatically
terminated by the commission of criminal offences
in April and May, 1973, nor was his application
for permanent residence rejected before his convic
tion on October 17th, 1973, since, according to the
decision of the Board, the appellant testified that
when he registered under section 8(1) of the
amending Act "he was told by the Immigration
Officer to whom he had reported that as there
were outstanding charges against him he should
wait until these charges were disposed of". Thus,
in our view, the appellant did not fall within the
terms of subparagraph (vi) of section 18(1)(e) of
the Immigration Act nor within any of the other
subparagraphs thereof specified in section 8(1)(b)
of the amending Act; he was not a person entitled
' See, for example, Koo Shew Wan v. The Minister of
Manpower and Immigration [1973] F.C. 578, judgment of this
Court delivered at Montreal, May 23, 1973.
to register under the said section 8 and to enjoy
the benefits thereof; and he was therefore not a
person falling within the terms of section 7 of the
amending Act so as to have a right of appeal
against the deportation order in question.
The appellant urged on us that section 11 of the
Immigration Appeal Board Act, as enacted by the
amending Act, should not be construed to apply to
a person who had applied for permanent residence
before the amending Act came into force since, as
so construed, it would have a retrospective opera
tion that would destroy an acquired or "contin-
gent" right of appeal. In our opinion this conten
tion is without merit. Section 7 of the amending
Act is clearly directed to the extent to which the
new section 11 is to apply to immigration cases
which are pending at some stage or another after
the amending Act comes into force. It clearly
provides that section 11, as replaced by the amend
ing Act, is to apply in respect of every order of
deportation made on or after the day on which the
amending Act comes into force, namely, August
15th, 1973, with the exceptions specified in para
graphs (a),(b), and (c) thereof. The appellant does
not fall within any of these exceptions, and it
would be reading another exception into the sec
tion to accede to his contention.
For all these reasons, we are of the opinion that
the appeal should be dismissed.
* * *
URIE J. concurred.
* * *
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.