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A-195-74
Kenneth Charles Dickens (Applicant)
v.
The Queen (Respondent)
Court of Appeal, Cattanach, Pratte and Urie JJ.—Ottawa, August 19, 1974.
Judicial review—Immigration—United States citizen enter ing Canada as visitor—Return to United States—Second entry into Canada as visitor—Not subject to deportation— Immigration Act, R.S.C. 1970, c. I-2, ss. 18, 25, 27—Federal Court Act, s. 28.
The applicant, having entered as a visitor and remained in Canada for one year, returned to the United States in July, 1974. In that month he was again admitted as a visitor and, after a special inquiry, was ordered deported under sections 25, 27(3) of the Immigration Act as a person described in section 18 of the Act. He applied, under section 28 of the Federal Court Act, to set aside the order.
Held, granting the application, the applicant, after re- admission, was outside the category of persons liable to deportation in section 18(1)(e)(vi) i.e., persons entering Canada as non-immigrants who remained in Canada after ceasing to be in the particular class in which they were admitted. The deportation order was quashed.
APPLICATION. COUNSEL:
L. Levencrown for applicant. E. Sojonky for respondent.
SOLICITORS:
Max, Dick & Levencrown, Ottawa, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment delivered orally in English by
URIE J.: This is an application made pursuant to section 28 of the Federal Court Act to review and set aside an order made under the provi sions of section 27(3) of the Immigration Act on the 18th day of July, 1974 for the deportation of the applicant, Kenneth Charles Dickens.
The applicant, a United States citizen, entered Canada on July 11, 1973 as a visitor. He remained here until early July 1974 when he returned to the United States. On July 12, 1974 he was readmitted to Canada as a visitor. On July 17, 1974 the Assistant Director-General, Ontario, of the Department of Immigration at Toronto, directed an inquiry to be held pursuant to section 25 of the Immigration Act to deter mine whether
Kenneth Charles Dickens is a person other than a Canadian Citizen or a person with Canadian domicile who entered Canada as a non-immigrant and remains therein after ceas ing to be in the particular class in which he was admitted as a non-immigrant.
Following the special inquiry an order was made by the Special Inquiry Officer, the relevant por tions of which are as follows:
... I have reached the decision that you may not come into or remain in Canada as of right in that:
(1) you are not a Canadian citizen;
(2) you are not a person having Canadian domicile; and that,
(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 have remained therein after ceasing to be in the particular class in which you were admitted as a non-immigrant;
(4) you are subject to deportation in accordance with subsection 18(2) of the Immigration Act.
I hereby order you to be detained and to be deported.
In view of the unanimous conclusion we have reached it will be unnecessary for us to consider all of the arguments advanced by counsel for the applicant. It is clear from the evidence that the Special Inquiry Officer failed to take into account in making his order the fact that the applicant had returned to the United States and had been readmitted to Canada on July 12, 1974 and, therefore, was not a "person" described in section 18(1)(e)(vi) of the Immigration Act.
The deportation order will, therefore, be set aside.
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CATTANACH J.—I concur.
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PRATTE J.—I concur.
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