Judgments

Decision Information

Decision Content

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.