A-578-76
Agustin Pedro Alfonso (Applicant)
v.
Minister of Manpower and Immigration
(Respondent)
Court of Appeal, Urie and Ryan JJ. and MacKay
D.J.—Toronto, October 6, 1976.
Judicial review—Immigration—Deportation order following
special inquiry under s. 22 of Immigration Act—S. 22 report
inappropriate—S. 7(3) inapplicable—Immigration Act, R.S.C.
1970, c. 1-2, ss. 7(3) and 22—Federal Court Act, s. 28.
Applicant was admitted to Canada as a visitor until Febru-
ary 1, 1974. On January 31, 1974 he visited an Immigration
Office to find out how to stay in Canada. He was advised that
he could not apply for permanent residence within the country,
but was asked to complete application form for admission to
Canada for that purpose and was examined as to eligibility.
The immigration officer then made a report under section 22 of
the Immigration Act which formed the basis of a special
inquiry resulting in the deportation order.
Held, the deportation order is quashed. Applicant had not
ceased to be a non-immigrant at the time of his visit or ceased
to be in the class in which he was admitted as a non-immigrant
within the meaning of section 7(3) except by completing the
application for permanent residence. The applicant would not
have signed the application had he understood the consequences
and therefore did not change his status by doing so. Section
7(3) therefore did not apply and a section 22 report was not
appropriate at that time.
APPLICATION for judicial review.
COUNSEL:
R. J. Gathercole for applicant.
T. L. James for respondent.
SOLICITORS:
Richard J. Gathercole, Toronto, for
applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment of
the Court delivered orally in English by
URIE J.: The applicant, a citizen of Argentina,
was admitted to Canada as a visitor on December
28, 1973 for a period to expire on January 11,
1974, which date was subsequently extended to
February 1, 1974. On January 31, 1974 he attend
ed at the Immigration Office in Toronto "in order
to find out how to remain in this country". The
immigration officer to whom he spoke apparently
advised him that he could not apply for permanent
residence from within the country, notwithstand
ing which he had him complete an application for
admission to Canada for that purpose and exam
ined him to determine his eligibility. Immediately
thereafter he made the section 22 report which
formed the basis of the special inquiry which
ultimately was held commencing on July 27, 1976,
resulting in a deportation order on the ground that
the applicant was a member of a prohibited class
in that he was not in possession of a valid immi
grant visa. It is this order which is the subject of
this section 28 application.
A fair reading of the whole of the evidence
indicates that when the applicant visited the Immi
gration Office on January 31, 1974, his status as a
non-immigrant had not expired and that he was
not then "seeking to come into Canada" to use the
words of section 22' of the Immigration Act, since
he was already legally here, but rather he was
seeking information in respect of how he could
remain here. Thus, unless it could be said he was
reporting under section 7(3) z and thus be "deemed
to be a person seeking admission to Canada" a
section 22 report was not appropriate in the cir
cumstances of this case.
' 22. Where an immigration officer, after examination of a
person seeking to come into Canada, is of opinion that it would
or may be contrary to a provision of this Act or the regulations
to grant admission to or otherwise let such person come into
Canada, he may cause such person to be detained and shall
report him to a Special Inquiry Officer.
2 7. (3) Where any person who entered Canada as a non-
immigrant ceases to be a non-immigrant or to be in the
particular class in which he was admitted as a non-immigrant
and, in either case, remains in Canada, he shall forthwith
report such facts to the nearest immigration officer and present
himself for examination at such place and time as he may be
directed and shall, for the purposes of the examination and all
other purposes under this Act, be deemed to be a person
seeking admission to Canada.
On January 31, 1974, the applicant could not be
said to have either ceased to be a non-immigrant
or ceased to be in the particular class in which he
was admitted as a non-immigrant within the
meaning of section 7(3) were it not for the fact
that he completed the application for permanent
residence. Again a fair reading of the whole of the
evidence leads to the conclusion that the applica
tion was completed as a result of what might best
be described as a misunderstanding between the
applicant and the immigration officer. But it is
equally clear, in our opinion, that the immigration
officer, having correctly advised the applicant that
he could not apply for permanent residence while
in Canada, ought not to have had him then com
plete the application. The applicant would not
have signed it had he understood what the result of
doing so would be. In these circumstances, there
fore, we do not believe that the applicant could
have been said by that act to have changed his
status. Thus, section 7(3) would not apply and a
section 22 report was not appropriate at the time it
was made.
We express no view as to what could have been
the result of completing the application in circum
stances other than the rather unusual ones in this
case.
In our view, therefore, the deportation order
must be quashed.
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.