A-686-76
Dejo Olafisoye Fadahunsi (Applicant)
v.
Minister of Manpower and Immigration
(Respondent)
Court of Appeal, Heald and Ryan JJ. and
MacKay D.J.—Toronto, December 1 and 20,
1976.
Judicial review—Immigration—Application for student
visa—Student visa previously granted—On expiry, applicant
granted visitor's visa—Whether present application is for
extension of student visa or new application for student visa by
bona fide non-immigrant—Immigration Act, R.S.C. 1970, c.
I-2, ss. 5(p),(t), 7(1)(c),(1), and 7(3)—Immigration Regulations,
Part I, s. 35.
Respondent contends that the applicant is asking for an
extension of a student visa and that he is not entitled to do so
because he is a member of the prohibited class of persons
described in section 5(p) of the Immigration Act.
Held, the application is allowed and the decision of the
Special Inquiry Officer and the deportation order are set aside.
It was not open to the immigration officer or the Special
Inquiry Officer to treat the application of the applicant as an
application to extend his student visa since the latter had been
supplanted by a visitor's visa. The Special Inquiry Officer
mistook the meaning of term "bona fide": he did not intend to
find that the applicant was not a bona fide non-immigrant for a
reason that would not relate to his bona fides as a student, but
instead appears to have held that the applicant was not a bona
fide non-immigrant because he was not a bona fide student.
Shafi-Javid v. Minister of Manpower and Immigration
[1977] 1 F.C. 509, applied.
APPLICATION for judicial review.
COUNSEL:
H. Robertson for applicant.
G. R. Garton for respondent.
SOLICITORS:
H. Robertson, Toronto, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
RYAN J.: This is a section 28 application to
review and set aside the deportation order in
respect of the applicant made by Special Inquiry
Officer M. Caden, and dated October 5, 1976. The
deportation order reads:
On the basis of the evidence adduced at the inquiry held at
Toronto Enforcement C.I.C., 480 University Avenue, Toronto,
Ontario, on 20th September, 1976; 23rd September, 1976; 28th
September, 1976; 1st October, 1976; and 5th October, 1976, 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 member of the prohibited class of persons
described in paragraph 5(t) of the Immigration Act in that
you cannot or do not fulfil or comply with the conditions or
requirements of the Immigration Act or the Regulations by
reason of:
you did not remain in good standing with a university,
college or educational institution, as required by paragraph
35(3)(a) of the Immigration Regulations, Part I, amended;
and
that you do not have sufficient financial resources to main
tain yourself in Canada as a student, as required by para
graph 35(1)(c) of the Immigration Regulations, Part I,
amended.
(4) you are a member of the prohibited class of persons
described in paragraph 5(p) of the Immigration Act in that,
in my opinion, you are not a bona fide non-immigrant.
I hereby order you to be detained and to be deported.
Paragraph 7(1)(f) of the Immigration Act'
provides:
7. (1) The following persons may be allowed to enter and
remain in Canada as non-immigrants, namely,
(/) students entering Canada for the purpose of attending
and, after entering Canada, while they are in actual attend
ance at any university or college authorized by statute or
charter to confer degrees or entering Canada for and, after
entering Canada, while they are actually taking some other
academic, professional or vocational training approved by the
Minister for the purposes of this paragraph;
Section 35 of the Immigration Regulations,
Part I 2 , is in these terms:
35. (1) Subject to this section, a student described in para
graph (/) of subsection (1) of section 7 of the Act may be
allowed to enter and remain in Canada as a non-immigrant if
(a) he complies with the requirements of the Act and these
Regulations;
' R.S.C. 1970, c. I-2.
2 SOR/67-434.
(b) he presents to an immigration officer an official letter of
acceptance from a university or college described in that
paragraph or an educational institution providing academic,
professional or vocational training approved by the Minister
for the purposes of that paragraph; and
(c) in the opinion of an immigration officer he has sufficient
financial resources to maintain himself and any dependants
accompanying him during the period for which he is admit
ted as a student.
(2) A student referred to in subsection (1) and his depend
ants shall not take employment in Canada without the written
permission of an officer of the Department.
(3) The period during which a student referred to in subsec
tion (1) may remain in Canada shall not exceed twelve months
from the date of his entry into Canada but may be extended by
an immigration officer for further periods not exceeding twelve
months each if
(a) he remains in good standing with and actual attendance
at a university, college or educational institution described in
paragraph (b) of subsection (1);
(b) he has observed the conditions of his entry; and
(c) he complies with the requirements of the Act and these
Regulations.
Paragraph 5(t) of the Immigration Act reads:
5. No person, other than a person referred to in subsection
7(2), shall be admitted to Canada if he is a member of any of
the following classes of persons:
(t) persons who cannot or do not fulfil or comply with any of
the conditions or requirements of this Act or the regulations
or any orders lawfully made or given under this Act or the
regulations.
The applicant arrived at Toronto on February
20, 1973. He was granted entry as a student. His
evidence was that he planned to study at a college
in Brandon, Manitoba, but that, owing to illness,
he arrived at the college too late to start classes.
He returned to Toronto. When his student visa
expired, he reported to the immigration office in
Toronto. He testified that "... they said because I
did not go to school during those three months,
they would put me on inquiry. That inquiry was
held and I was ordered deported and I appealed.
The appeal was not heard until 1975.... I was
allowed to stay."
From 1973 to 1975, he remained in Toronto
pending the disposition of his appeal. From April
to August 1974, he went to Woodsworth College,
University of Toronto, and took pre-university
courses in physics, chemistry and mathematics.
Achievement reports issued by Woodsworth Col
lege certified that he received a B grade in physics
and in chemistry, and that he was recommended
for full-time studies.
He was enrolled at Centennial College from
September to December 1974, and again from
January to May 1975, as a student in engineering
technology. He took some ten courses, passing all
except one, with grades of B or C. He failed a
course in English.
When he finished at Centennial College, he
again attended Woodsworth College where he suc
cessfully completed a pre-university course in
mathematics that finished in August.
No immigration document was issued in respect
of the applicant's attendance at Woodsworth Col
lege or Centennial College during this period. The
applicant's evidence was that he went to the immi
gration office and was told that he could go to
school pending the decision of his appeal.
The applicant's passport was not entered as an
exhibit at the inquiry, but it was before the Special
Inquiry Officer. In the course of his examination
of it, the officer said:
On page 11 there appears another stamp—Canada Immigra-
tion—September 2nd, 1975 and beside that handwritten 7-1-f
issued at Toronto with the words "until 20th January, 1976".
IMM.1097 A.9159334. Further on page 11 there is another
Canada Immigration Stamp ... I believe it states January 21,
1976 ... it is difficult to read. It is issued at Hamilton.
There is another stamp below that—Canada Immigration,
handwritten 7-1-f January 21, 1976 in Hamilton. It is until 1st
June, 1976-1097 A8632046. It has the numbers noted
below-3315-117066.
On page 13 there appears to be a last entry, Canada Immigra
tion stamp dated June 15, 1976 7-1-c (handwritten in the body
of the stamp) issued in Hamilton. It is handwritten "to Septem-
ber 1st, 1976" with the initials P. B. appearing in the centre to
the right of this stamp. At the top of the stamp is the
handwritten notation 1097 No. A.8632046.
We do not have before us the actual student's
visa issued to the applicant on September 2, 1975,
the visa which was to expire on January 20, 1976,
nor do we have before us any document in respect
of the entry on page 11 of his passport consisting
of a stamp and a handwritten notation to the effect
that a 7(1)(f) status was granted in Hamilton and
extended to June 1, 1976. It is reasonable to
assume, however, that this notation operated as or
was evidence of an extension of the period permit
ted in respect of the 7(1)(f) status granted on
September 2, 1975. We do know, however, from
the evidence, that the applicant had been admitted
to McMaster University in September 1975, as a
first-year engineering student. It must have been
on the basis of this admission that he was granted
student status. We know, too, that the applicant
attended McMaster University during the fall,
winter and spring of 1975 and 1976 until the end
of the University year. We also know that he failed
his year at McMaster.
After his student status came to an end, he was
given a new status. On June 15, 1976, he was
admitted as a visitor under paragraph 7(1)(c) of
the Immigration Act for a period extending to
September 1, 1976 3 . For two and a half months he
was, so far as we are aware, neither a student in
fact nor for purposes of the Immigration Act. He
was a visitor. When his status as a visitor expired,
he reported, as he was required to do, under
subsection 7(3) of the Act 4 . Pursuant to that
subsection, he presented himself for examination,
and by virtue of the subsection he was deemed to
be, whatever in fact he may have been, a person
seeking admission to Canada for purposes of his
examination and for all other purposes under the
Immigration Act.
Mr. D. Welsh, the immigration officer who
examined him, made a statutory declaration that
was received in evidence. He declared:
3 Paragraph 7(1)(c) of the Immigration Act provides:
7. (1) The following persons may be allowed to enter and
remain in Canada as non-immigrants, namely,
(c) tourists or visitors;
° Subsection 7(3) of the Immigration Act reads:
(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-immi
grant 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.
... I interviewed Dejo Olafisoye Fadahunsi at this office on the
20 September 1976. At that time Mr. Fadahunsi advised me
that he had failed his first year in Engineering at McMaster
University and that the university would give him absolutely no
credit for his first year there. He now wishes to enrol in
Centennial College in the Chemical Technician Program.
A letter from the admissions office of Centenni
al College, dated September 14, 1976, was entered
in evidence. This letter confirmed that the appli
cant was registered "as a student at Centennial
College, Fall 1976 Semester, commencing the 7th
of September". The letter indicates that the pro
gram in which the applicant was enrolled was that
of chemical technician and that he was enrolled in
the third semester of the program.
In my view, in the circumstances of this case, it
was not open, either to the immigration officer or
to the Special Inquiry Officer, to treat the applica
tion of the applicant as an application to extend
the period stipulated in the student visa which had
been supplanted by the visitor's visa, the visa on
the expiry of which he was reporting. This is
particularly so when one has in mind that it would
be unreal to view his application for a student visa
to attend Centennial College to study as a chemi
cal technician as an application for an extension of
the period of time that had been granted under the
visa issued on the strength of an admission by
McMaster University to study engineering, the
visa which had expired some three months earlier.
It is also true that we have no evidence concerning
the circumstances surrounding the grant of visi
tor's status, and it would be improper for us to
speculate about the reasons. At any rate, this is not
a case of a student, admitted as such, requesting
an extension of time while he was in status as a
student, nor is it a case of such a student reporting
forthwith after the expiry of his student visa. The
word "extended", which appears in subsection
35(3) of the Regulations, is not, of course, a term
of art, but it is not flexible enough, if properly
construed, to encompass, in all the circumstances
of this case, a finding that what the applicant did
in September 1976 constituted an application for
an extension of the period of time under the stu
dent's visa that had expired on June first.
It was conceded before us that the deportation
order is not supportable on the ground, asserted in
the order, that the applicant does not have suffi
cient financial resources to maintain himself in
Canada as a student.
I have given careful consideration to the finding
of the Special Inquiry Officer that the applicant
was a member of the prohibited class of persons
described in paragraph 5(p) of the Immigration
Act in that, in the opinion of the Officer, he was
not a bona fide non-immigrant. Paragraph 5(p) is
in these terms:
5. No person, other than a person referred to in subsection
7(2), shall be admitted to Canada if he is a member of any of
the following classes of persons:
(p) persons who are not, in the opinion of a Special Inquiry
Officer, bona fide immigrants or non-immigrants;
Reading the reasons of the Special Inquiry Offi
cer as a whole, including what he described as a
review of the evidence, I have concluded that he
did not intend to find that the applicant was not a
bona fide non-immigrant for a reason that would
not relate to his bona fides as a student as, for
example, that he might have intended to remain
indefinitely in Canada on completion of his stud
ies. It seems to me that he intended to hold that
the applicant was not a bona fide non-immigrant
because he was not a bona fide student.
In Shafi-Javid v. Minister of Manpower and
Immigration [1977] 1 F.C. 509, a case involving a
finding that an applicant was not, in the opinion of
the Special Inquiry Officer, a bona fide non-immi
grant, Chief Justice Jackett said [at page 515]:
... in my view, the expression "bona fide" refers to the
authenticity of the person as a visitor and not to the acceptabili
ty of his reason for being a visitor.
In that case the question, so far as is relevant here,
was whether the applicant was a bona fide visitor,
but the term bona fide would, in the case of a
student, have a similar reference, that is, it would
refer to his authenticity as a student and not to his
reasons for being a student.
Applying that test, and again reading the rea
sons of the Special Inquiry Officer as a whole, I
am of the view that he mistook the meaning of the
term "bona fide" in deciding as he did. This view
is reinforced when I consider that the applicant
was deemed, by subsection 7(3), to be a person
seeking admission to Canada as a student and
that, as decided above, he was not to be considered
as a student seeking extension of a period under a
student visa still in existence or just expired.
I would grant the application and set aside the
decision of the Special Inquiry Officer and the
deportation order. I would refer the matter back to
a Special Inquiry Officer to be determined on the
basis of the evidence adduced at the inquiry con
ducted by Special Inquiry Officer M. Caden and
on the basis of these reasons.
* * *
HEALD J.: I concur.
* * *
MACKAY D.J.: I concur.
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.