A-270-77
Mok Heung Chan, Luiza Chan, David Chan,
Steven Chan (Applicants)
v.
Minister of Manpower and Immigration
(Respondent)
Court of Appeal, Heald and Urie JJ. and MacKay
D.J.—Toronto, June 8 and 9, 1977.
Judicial review — Immigration — Deportation order —
Visitor status — Whether status encompasses persons whose
stay is temporary, but of an indefinite and undetermined
duration — Federal Court Act, s. 28 — Immigration Act,
R.S.C. 1970, c. I-2, s. 7(1)(c).
The applicants, a mother and her three children, were admit
ted to Canada as visitors in February, 1976 and received
extensions to January 15, 1977. Shortly after their arrival, the
mother on behalf of both her children and herself, applied for
entry into the United States, but was refused. Her husband, in
the United States with a visitor's visa and work permit, then
applied for their admission to the United States. At the time of
the special inquiry resulting in the deportation order, this
application had not yet been heard. The applicants wish to
remain in Canada as visitors until such time as visas issue for
their entry into the United States. The issue is whether the
applicants can be said to be visitors within the meaning of
section 7(1)(c) of the Immigration Act.
Held, the application is dismissed. To be a "visitor" as a
member of a class of non-immigrants, the purpose of the visit
must be, inter alia, "temporary" in nature. It is difficult to see
how the purpose of a person in seeking entry necessarily can be
said to be "temporary" when the period of entry sought is
indefinite in duration. Although the applicants' stay might be
construed to be limited in duration, in that it would last only
until the application for admission to the United States had
been disposed of, the word "visitor" implies a meaning that
entails a stay of a specific, limited duration.
Shafi-Javid v. M.M. & I. [1977] 1 F.C. 509,
distinguished.
APPLICATION for judicial review.
COUNSEL:
L. Taman for applicants.
H. Erlichman for respondent.
SOLICITORS:
Borins, Birenbaum, Steinberg & O'Sullivan,
Toronto, for applicants.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment of
the Court delivered orally in English by
URIE J.: This section 28 application is to review
and set aside a deportation order made against the
applicant mother and her three children on April
25, 1977.
Very briefly the relevant facts are these. The
applicant mother is a married woman and a citizen
of Surinam. Her husband, a citizen of Holland,
until early 1976 resided, and was self-employed, in
Surinam with his wife and three children. In Feb-
ruary, 1976, he went to the United States appar
ently on a visitor's visa with a work permit. Mrs.
Chan and her children came to Canada on Febru-
ary 19, 1976 and were admitted as visitors, with
subsequent extensions, until January 15, 1977.
Shortly thereafter the three children were enrolled
in school in Toronto. In December 1976, Mrs.
Chan, leaving her children in Toronto, returned to
Surinam to attend to some business there. She
returned to Canada on January 2, 1977 at which
time she became the subject of a section 22 report.
Thereafter a special inquiry was held which led to
the deportation order which is the subject of this
section 28 application, on the ground that the
applicant mother was not a bona fide non-immi
grant.
Shortly after her arrival in Toronto in February
1976 the applicant mother, on her own behalf and
that of her children, applied for a visa to go to the
United States. The application was refused for
some undisclosed reason. Subsequently, the appli
cant's husband applied for the admission of his
wife and family to the United States, which
application had not at the time of the inquiry, and
apparently still has not, been approved.
When Mrs. Chan applied for re-entry to Canada
on January 2, 1977 it is apparent she again sought
status as a visitor under section 7(1)(c) of the
Immigration Act, R.S.C. 1970, c. I-2, (herein-
after referred to as the Act) not for any definite
period of time, but until such time as visas might
issue for her children and herself for admission to
the United States or until their applications for
such visas were refused. The evidence certainly
does not provide any reliable clue as to when that
decision may be made.
The sole issue raised in the application is wheth
er or not, in the circumstances outlined above, the
applicants can be said to be visitors within the
meaning of section 7(1)(c) of the Act.
Counsel for the applicants relies on a recent
decision of this Court in Shafi-Javid v. M.M. & I.
[1977] 1 F.C. 509. In that case the applicant came
to Canada in order to get a visa to the United
States to visit his brother. He was admitted to
Canada for a defined, limited period of time, on
the last day of which a report was made and an
inquiry followed as though the applicant was seek
ing admission to Canada as a visitor. A deporta
tion order was made against him on the ground
that he was "not a bona fide non-immigrant". This
Court set aside that order.
Superficially, on these facts, this case and the
Javid case are very similar but in one crucial
respect they differ. In the latter case, when he
applied for a visitor's visa, Mr. Javid asked for a
visitor's visa for a specific period of time. How
ever, in this case, Mrs. Chan asked to be admitted
for an indefinite term to expire when her applica
tion for admission to the United States has been
disposed of at some indeterminate date in the
future. That period might be a matter of days,
weeks, months or years. This difference in the
factual situation between the two cases, in our
view, is important.
While there is no definition of "visitor" in the
Act, it is important to note that section 7(1) lists
I 7. (1) The following persons may be allowed to enter and
remain in Canada as non-immigrants, namely:
(c) tourists or visitors;
the classes of persons who may be "allowed to
enter and remain in Canada as non-immigrants"
[emphasis added] . Paragraph (c) of that subsec
tion lists "tourists and visitors" as one of the
classes.
Section 2 of the Act defines "entry" as
... the lawful admission of a non-immigrant to Canada for a
special or temporary purpose.... [Emphasis added.]
Thus, it can be seen that to be a "visitor" as a
member of a class of non-immigrants, the purpose
for the visit must be, inter alia, "temporary" in
nature.
It is difficult to see how the purpose of a person
in seeking entry necessarily can be said to be
"temporary" when the period of entry sought is
indefinite in duration.
Dictionary definitions support this view. In The
Shorter Oxford English Dictionary (3rd ed.), for
example "temporary" is defined as "1. Lasting for
a limited time". [Emphasis added.]
The Living Webster Encyclopedic Dictionary
defines it as "Lasting for a time only; existing or
continuing for a limited time ...."
Mrs. Chan's stay might, in one sense, be con
strued to be limited in duration, i.e. until her
application for admission to the United States has
been disposed of. In our view, however, it is not
limited in the sense which must be implied from
the use of the word "visitor" in section 7(1) (c) of
the Act. The meaning which ought to attach to
that word in the whole context of the Act implies a
"temporary" stay of specific duration.
Chief Justice Jackett in the Javid case held that
in the circumstances of that case, Mr. Javid was a
"visitor" within the meaning of the Act. Among
those circumstances was the fact that Javid sought
entry for a specific, limited period of time. In an
appendix to his reasons for judgment the Chief
Justice clearly recognizes, however, the impor
tance of the temporary nature of a visitor's status
when he said at page 518:
... in ordinary parlance, one thinks of a "visitor" or "visiteur"
to a country as including any person coming for a "temporary"
stay.
We view his use of the word "temporary" as
indicating a stay of a specific, limited duration.
For the above reasons, we are of the opinion that
the Javid case is not applicable on the undisputed
facts of this case where the status requested was
for an indefinite period of time. The Special Inqui
ry Officer did not, therefore, err in law in making
the deportation order under review and, according
ly, the section 28 application will be dismissed.
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.