A-469-78
Raymond Smalenskas (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
Court of Appeal, Urie and Ryan JJ. and Kelly
D.J.—Toronto, November 6; Ottawa, December
22, 1978.
Judicial review — Immigration — Adjustment of Status
program deeming persons not legally admitted to be immi
grants on application made during amnesty period — Proce
dures concerning applicant's application remaining incomplete
— Applicant returned to U.S. for short visits — Adjudicator,
at inquiry, holding applicant had maintained intention to
reside in Canada but that applicant's authority to remain in
Canada was as a non-immigrant — Whether or not Adjudica
tor erred in law — Immigration Act, R.S.C. 1970, c. 1-2, ss.
7(3), 18(1),(2) — Act to amend Immigration Appeal Board
Act, S.C. 1973-74, c. 27, s. 8 — Federal Court Act, R.S.C.
1970 (2nd Supp.), c. 10, s. 28.
Applicant, an American citizen, seeks judicial review of the
departure notice made by an Adjudicator. Applicant had regis
tered in 1973 with an immigration officer for the purposes of
the Adjustment of Status program but the procedures remained
incomplete. During the period following his registration appli
cant travelled to the United States on two occasions for short
periods; a misunderstanding with an immigration officer on his
return from one visit precipitated the series of events that led to
the Adjudicator's inquiry. Although the Adjudicator found
that, from the time of applicant's registration until the time of
his decision, applicant had maintained his intention to reside in
Canada, the departure notice was based on the Adjudicator's
finding that at the time of the inquiry, the applicant's authority
to remain in Canada was as a non-immigrant or visitor.
Held, the application is allowed. The Adjudicator erred in
law in holding the applicant, by the mere fact of leaving
Canada, abandoned his application for permanent residence
that he was deemed to have made by registering under the
Adjustment of Status program. As there is no special procedure
applicable to a "deemed immigrant", the procedure must be
assumed to be the same as for the immigrant. What the
Adjudicator was required to decide, firstly, was whether the
applicant had, on either of the occasions when he left Canada,
abandoned his application for admission which he was deemed
to have made. If the applicant had been held not to have
abandoned his deemed application, the Adjudicator should
have rendered the decision which would have been rendered
had the examination been held in due course. If the Adjudica
tor decided that the deemed application had been abandoned,
the applicant should have been dealt with as a person not a
Canadian citizen or having Canadian domicile who had come
into Canada as a non-immigrant, remained in Canada and
taken employment without having been legally admitted. There
is evidence which, if believed, might convince the appropriate
immigration officials that the applicant has not abandoned his
application to be admitted as an immigrant.
APPLICATION for judicial review.
COUNSEL:
G. L. Segal for applicant.
G. R. Garton for respondent.
SOLICITORS:
Segal, Rotenberg, Toronto, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
KELLY D.J.: The applicant seeks the review,
pursuant to section 28 of the Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, of the departure
notice requiring the applicant to leave Canada on
or before the 31st October 1978, made by an
Adjudicator on the 12th September 1978: this
departure notice was based on findings of the
Adjudicator that:
(a) the applicant came into Canada as a non-
immigrant visitor; and
(b) that, due to the length of his sojourn in
Canada he became a person described in subsec
tion 27(3) of the Immigration Act, R.S.C. 1970,
c. I-2 and paragraph 27(2)(e) of the Immigra
tion Act, 1976, S.C. 1976-77, c. 52 by reason of
the fact that he entered Canada as a visitor and
remained after he ceased to be a visitor i.e. he
remained in Canada beyond the period of time
for which he was authorized to remain.
The incidents now related are the only relevant
ones with respect to which evidence was adduced
before the Adjudicator.
The applicant is and has been at all relevant
times, not a Canadian citizen, but a citizen of the
United States of America; he has never been
admitted to Canada for permanent residence
within the meaning of the Immigration Act; on the
15th April 1972, he was let into Canada and
remained continuously until the 9th October 1973
without any further action on the part of the
immigration authorities; on 9th October 1973, he
registered with an immigration officer for the pur
pose of section 8(1) of the Act to amend the
Immigration Appeal Board Act, S.C. 1973-74, c.
27 (the Adjustment of Status program): this regis
tration took place in a mobile trailer unit deployed
by the Toronto office of the Minister of Manpower
and Immigration, while the unit was located tem
porarily near Delhi, Ontario in the vicinity of
which the applicant was working harvesting
tobacco.
At that time, the applicant was living with one
A. Augustine of R.R. #1, Lasalette, and was
employed by Augustine and other farmers in the
area. When registering, the applicant gave the
above-described place as his residence but, due to
the migratory nature of his work, he did not
always actually live at the Augustine farm; never
theless, he maintained this as his address until
about the spring of 1974 by which time Augustine
had ceased to be the owner of the property con
cerned. At no time did the applicant take any steps
to furnish the immigration authorities with a new
or better address although he left the Delhi area
and became employed successively in Quebec and
in the northern bush area.
At the time of registration, the applicant signed
a form and was given a copy thereof (Ex. P1). The
printed title of this form was "Record of Report
pursuant to section 7 or section 19 of the Immigra
tion Act." Above this title appears in handwriting
the word "Registration"; the words underlined are
crossed out. This form provided a space for the
entry of "date of appointment for interview". This
space was left blank, in all likelihood because of
the transient location of the mobile unit; no
instructions as to place or time of appointment for
interview were given to the applicant verbally. A
copy of the form was introduced as Ex. P1 and was
acknowledged by the applicant to be a copy of the
form received by him.
When registering, the applicant was given a
letter (Ex. C9) (bearing a number corresponding
to that on Ex. P1), which acknowledged the appli
cant's registration and indicated that he was
exempt from the employment visa regulations and
was free to engage in employment until:
(a) an immigration officer notifies that person in writing that
the immigration officer is not satisfied that that person came
into Canada on or before November 30, 1972 and has remained
in Canada since that date; or
(b) that person leaves Canada.
The authorization was issued pursuant to Regu
lation 3C(3) of the employment visa Regulations
[Immigration Regulations, SOR/73-443] under
the Immigration Act, R.S.C. 1970, c. I-2.
Under date of 18th October 1973, the immigra
tion authorities at Toronto sent a letter (Ex. C4) to
the applicant addressed, "c/o A. Augustine, R.R.
#1, Lasalette, Ontario", advising the applicant of
an appointment for an interview on Tuesday, 23rd
October 1973 at 1:00 p.m. at 102 Bloor Street
West, Toronto and under date of 29th October
1973, a further letter (Ex. C5) with respect to an
appointment for an interview at the same office on
6th November 1973 at 10:30 a.m. was forwarded
to the same address. Neither of these letters was
received by the applicant, no doubt due to his
physical separation from that address.
At the end of the tobacco harvest in 1973, the
applicant went to Quebec City where he worked
until the spring of 1974 when he returned to
Ontario and inquired at the Augustine farm for
any mail that might have arrived there for him. He
found that the farm had changed hands and that
the new owner had no mail for him. Beyond these
two letters, no efforts were made by the immigra
tion authorities to locate the applicant, to deal
with the applicant's registration or to proceed to
dispose of it in his absence.
On two occasions, a time which the applicant
places as "maybe a year, maybe a half a year" or
"six or five or maybe eight months" after 9th
October 1973, the applicant attended at 480 Uni
versity Avenue, Toronto, the general Toronto
Office of the Immigration Department; on both
occasions he stood in line, presumably at the inqui-
ry desk from which persons were referred to the
appropriate area. On one occasion, which he
believes was 4:15 in the afternoon, he was told it
was too late in the afternoon; on another occasion,
he can't recall what happened other than he did
not get beyond the first floor downstairs, the inqui
ry area.
It is to be noted that the special office set up to
deal with the Adjustment of Status program was
located at 102 Bloor Street West, Toronto. This
was the place appointed for the interview in the
letters directed to the applicant in October 1973.
The form (Ex. P1) lacks any address for the
Immigration Office, although the place of signa
ture has been filled in as "Toronto". The work
authorization (Ex. C9), given to the applicant
bears a stamp reading "Canada Immigration Act,
October, 1973, Toronto". It is beyond doubt that
both the registration form (Ex. P1) and the
authorization (Ex. C9) originated in the trailer
while it was located near Delhi.
The only subsequent relevant incidents were the
following. Some time around the end of June or
July 1975 the applicant went to Chicago for two
weeks on a visit. On returning to Canada he had
no trouble getting back; he told the immigration
officer he was returning back home and he was let
through. The Adjudicator, on his evidence, con
cluded that the applicant was apparently con
sidered to be a resident of Canada returning to his
home and that the officer who permitted him to
come back into Canada was not aware of what
legal status, if any, the applicant had in Canada.
In September 1975 the applicant left Canada for a
few hours in order to purchase parts for the repair
of his chain saw. He left and returned through
Sarnia and on his return was questioned by an
immigration officer. In the words of the applicant,
he and the officer who examined him had a "big
misunderstanding"; he also had difficulty under
standing the officer's speech and his own speech
was flavoured with a slight accent. It was the
possession of the chain saw with which he had
been working at the Abitibi Pulp and Paper Com
pany which drew the attention of the immigration
officer. The applicant presented his United States
driver's licence, stated that he was coming into
Canada to work and produced the letter of author
ization (Ex. C9) the possession of which the officer
took; a Canada Entry Form 1097 (Ex. C6) was
issued; this stated that the applicant was author
ized to be in Canada as a visitor from 5th Septem-
ber to 12th September 1975. On this form the
applicant's permanent address is shown as that on
his driver's licence, that is, 2622 West 69th Street,
Chicago, Illinois. The Adjudicator has found that,
by his words and action in producing Ex. C9, the
applicant conveyed to the examining officer the
inference that he was entering to work in Canada
and presumably to stay here permanently. In May
of 1977, the applicant, while in Ottawa, was inves
tigated by the local police who initially wrongly
identified him as a person wanted by them. He was
cleared of all suspicion, as his apprehension was
clearly the result of mistaken identity, but he was
shown to be the person who had entered Canada
through Sarnia on 5th September 1975. After
being confronted with a copy of Ex. C6, he was
requested to leave Canada, being handed a brown
envelope to be delivered to an officer at the
Canadian border point at which he would leave
Canada. The brown envelope contained a letter, a
copy of which is Exhibit C8. This is commonly
referred to as a check-out letter. On 24th May
1977, in compliance with what he had been told
while in Ottawa, he left Canada through Niagara
Falls, Ontario, going to Lewiston, delivering the
brown envelope to a Canadian immigration officer.
He immediately went to the Canadian Consulate
in Buffalo for advice as to his immigration status,
but any discussion which he had at the Consulate
was found by the Adjudicator to have been of a
cursory nature. Immediately after leaving the Con
sulate he came back into Canada, identifying him
self by producing an Ontario driver's licence and
stating that he was returning to his home in
Toronto.
The applicant had no further contact with the
immigration officials until 7th February 1978
when he had an interview with Immigration Offi
cer Carelli, as a result of which the immigration
officer submitted a report under section
18(1)(e)(vi) of the Act following which a direction
was issued under section 25. No inquiry pursuant
to that direction was ever held but a fresh report
(Ex. C2) dated 30th May 1978, and a subsequent
direction resulted in the inquiry now under review.
After considering all of the evidence, the
Adjudicator found that, at all relevant times from
9th October 1973 to 7th February 1978, and even
until the time of his decision (13th September
1978) the applicant had maintained his intention
to reside in Canada and to become a permanent
resident thereof. Such an intention along with the
registration on 9th October 1973 was, in my opin
ion, indicative that the applicant was an immi-
grant—a person seeking legal admission to
Canada as a permanent resident. The Adjudicator,
however, made a finding that, at the time of the
inquiry before him, the applicant's authority to
remain in Canada was as a non-immigrant or
visitor. He based his finding on his interpretation
of the law:
That a person is a person deemed to be seeking admission to
Canada only as long as he remains in Canada and that once he
leaves Canada voluntarily, there is no longer any provision
whereby an Immigration Officer can process an application on
the basis of such original application.
Both counsel before this Court agreed that the
facts of the departure from Canada to Lewiston
and the return through Niagara Falls in May 1977
are not relevant to the determination of the appli
cant's status or rights. That contention is con
sistent with the decision in Leiba v. Minister of
Manpower and Immigration [ 1972] S.C.R. 660.
Since, after the registration on 9th October
1973, the provisions of section 8 of the Act to
amend the Immigration Appeal Board Act were
applicable to the applicant's case, it will be con
venient here to set out the text of subsection (1) of
that section as well as subsection 7(3) and sub-
paragraph 18(1)(e)(vi) and subsection 18(2) of the
Immigration Act:
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.
7....
(3) Where a 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 examina
tion 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.
18. (1) ...
(e) any person, other than a Canadian citizen or a person
with Canadian domicile, who
(vi) 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,
(2) Every person who is found upon an inquiry duly held by
a Special Inquiry Officer to be a person described in subsection
(1) is subject to deportation.
Despite its title, the amendment to the Immi
gration Appeal Board Act makes substantial
changes in the Immigration Act, with respect to a
category of persons, large in number, for which
Parliament intended to provide a means of regula
rizing their presence and continuing presence in
Canada. These people had entered Canada as non-
immigrants, had remained beyond their authorized
periods of sojourn, without reporting to an immi
gration officer as they were required to do; a
considerable number of them had become estab
lished in Canada. In the absence of some special
provisions, the members of this category would
have been candidates for deportation. Two ob
stacles stood in the way of most, if not all, of this
category becoming legalized, authorized perma
nent residents—they lacked the employment visa
which was obtainable only at the place of perma
nent residence from which they had come to Cana-
da—having entered Canada illegally, or being ille-
gaily in Canada, they would have been barred
from re-entry if they had returned to secure the
visa necessary for admission as permanent
residents.
By virtue of section 8 (supra), coming forward
and registering during the amnesty period, they
became qualified to be examined as immigrants
without departing from Canada and they were
absolved from any disqualification which other
wise would have arisen due to their illegal entry or
illegal presence in Canada.
Unlike the normal immigrant, a member of this
category did not have to make application at a
point of entry and, unless a member of a prohib
ited class, could be granted landing in Canada if
(1) of the age of 18 years or more and (2) he could
demonstrate to an immigration officer that he had
established himself successfully in Canada accord
ing to the criteria set out in the Regulations'.
Accordingly, a person who was qualified to reg
ister and did so, became a member of a privileged
class entitled to be accorded treatment more
favourable to him than usually applied to other
immigrants.
In the absence of any denial or proof to the
contrary, registration, pursuant to the Adjustment
of Status program, on 9th October 1973, estab
lished that the applicant had come into Canada
before 30th November 1972 and remained in
Canada since that date, he was deemed to be a
person who had reported under subsection 7(3) of
the Immigration Act and who had applied for
admission as an immigrant. He was also exonerat
ed from the consequences which would otherwise
have flowed from his coming into Canada and his
activities in Canada which were not criminal.
It is to be noted that by virtue of the Adjust
ment of Status program, the applicant was deemed
' SOR/73-443.
to have applied for admission to Canada as an
immigrant.
What status the applicant had after registration
and before the decision on his application is dif
ficult to define; he had not been "let in" or
"admitted"; he had not been detained and he was
at liberty with the knowledge and the acquiescence
of the immigration authorities; he had not been
asked for or given any personal undertaking or
bond to appear for examination; he was physically
present in Canada and his presence was not illegal.
Notwithstanding this somewhat anomalous situa
tion, he did have certain rights under the Act
which had to be respected.
There being no special procedure applicable to a
"deemed immigrant", it must be assumed it would
be the same as for the immigrant.
At all relevant times, the Immigration Act has
required everyone seeking to come into Canada,
including Canadian citizens and those with
Canadian domicile, to appear before an immigra
tion officer for examination; unless the immigra
tion officer be of the opinion that it would be
contrary to the Act or Regulations, it is mandatory
that, after examination, he grant admission to or
let such person into Canada; if the immigration
officer does not grant admission or let the person
into Canada, the person is to be detained and a
report made to an Adjudicator 2 ; on receipt of that
report, the Adjudicator is required, after examina
tion to admit, let in, or make a deportation order
or exclusion order.
The Immigration Act, R.S.C. 1970, c. I-2, s. 23,
provides that, with respect to persons seeking to
come into Canada from the United States, St.
Pierre and Miquelon, a deportation order could be
made by an immigration officer. No such provision
is contained in the Immigration Act, 1976.
A person who seeks to be admitted or to be let in
by an immigration officer and who, incidentally,
2 Before the most recent revision of the Immigration Act, the
person performing the function now performed by "an
Adjudicator" was styled "a Special Inquiry Officer".
will be ' on Canadian soil, can only be dealt with
lawfully in one of the following manners:
(1) he can be admitted or let in by an immigra
tion officer;
(2) he can be detained by the immigration offi
cer and reported for examination by an
Adjudicator;
(3) on receipt of the report of an immigration
officer and after the conduct of an examination
by an Adjudicator, the person can (a) be admit
ted or let in by the Adjudicator, or (b) ordered
deported or excluded by the Adjudicator.
From this it seems to follow that, even if he were
not admissible or eligible to be let in, the presence
of an immigrant in Canada cannot be adversely
affected except by detention by an immigration
officer, or by deportation or exclusion by an
Adjudicator.
Strange as it may seem, the record in this case
discloses that after the applicant had registered on
9th October 1973, he was not then, or at any later
time, examined. When he did not attend for
examination on either of the dates fixed by the
letters of 18th and 29th October 1973, no steps
were taken to apprehend him or to proceed with an
inquiry in his absence, and no direction or order
was made which would have resolved the question
of his qualification to be granted landing in
Canada. So far as the Adjustment of Status pro
gram is concerned, the applicant's case is still
"unfinished business".
It was contended by counsel for the Minister
that the Adjudicator did not err in holding that the
applicant's admitted departures from Canada had,
of themselves, put an end to whatever rights he
may have had under the Adjustment of Status
program and caused him to cease to be an immi
grant. I am aware of authority for holding that a
non-immigrant, by leaving Canada voluntarily,
forfeits any benefits he may have had as a non-
immigrant 3 , but I do not consider that, in the case
of an immigrant, departure of itself necessarily
3 Regina v. Special Inquiry Officer; Ex parte Washington
(1969) 3 D.L.R. (3d) 518.
results in disqualification.
In considering the effect of departure from
Canada of the person who has not been admitted
as a landed immigrant, the case of a non-immi
grant must be distinguished from that of an immi
grant who aspires to be legally admitted to Canada
as a landed immigrant.
A bona fide non-immigrant seeks to be let in for
a limited period and for one of the purposes
described in section 7(1) and (2). It is inherent in
his request for letting in that he proposes to depart
when he has achieved the purposes for which he
sought to come in and within the period for which
he has been let in, which period may be a specified
time or one deemed by law to apply to him.
Regardless of the purpose for which he seeks to
be let in, he is for that purpose making a visit.
Such a visit is a continuous period of time, begin
ning when he applies at a port of entry to be let in
and terminating when he leaves Canada. Two or
more distinct periods spent in Canada interrupted
by absences from Canada do not constitute one
visit. If a visitor leaves Canada and subsequently
seeks to re-enter, the latter instance is another
visit, distinct in every way from the earlier one.
The applicant's eligibility to be granted later a new
entry as a non-immigrant will not be affected by
his earlier departure—it will depend on his being
able to convince the immigration officer that he is
not a person who should be denied entry. However,
as in the Washington case, if a visitor at the date
of his attempted re-entry has become disqualified,
his earlier presence in Canada does not enhance
his eligibility for re-entry.
On the other hand, a person who applies to be
admitted as an immigrant is not contemplating
departure after a specified period but is expressing
a desire to be allowed to take up permanent resi
dence; his conduct should be considered in the
light of his avowed intention.
A person in the latter category, who, before
being legally admitted, leaves Canada to resume
residence in the country from which he came, or to
take up residence elsewhere outside Canada would
thereby indicate his abandonment of his applica
tion for admission, because his decision to take up
residence elsewhere than in Canada would be a
change of the intention to become a permanent
resident; but his intention to abandon his applica
tion to be admitted is to be gathered not from the
fact of departure but from the purpose for which
he departs.
The duration of the absence will be a factor to
be taken into consideration when determining
whether he has the intention to abandon. Some
physical absences are completely compatible with
the intention to pursue an application for admis
sion. Take, for example, the case of an immigrant
who has purchased a train ticket for travel from
Saint John, New Brunswick, to Montreal; during
this journey the train crosses the Canadian border
into the State of Maine and travels there for a
considerable distance before re-entering Canada;
no doubt this person has left Canada physically,
but, if his destination be Montreal, there can be no
doubt as to his intention to remain in Canada as a
permanent resident. Physical absence alone can be
no more than prima facie and rebuttable evidence
of the abandonment of an application to be admit
ted, shifting to the applicant the onus of adducing
cogent evidence of the continuance of his intention
to pursue his application for admission.
The applicant, having taken the steps necessary
to avail himself of the unique privileges offered to
persons defined in section 8(1) (supra), was, by
reason thereof, in a position more favourable to
him than he could attain after the expiry of the
sixty-day amnesty period. The likelihood of his
foregoing the peculiar advantages under the posi
tion he had achieved must be weighed as a factor
in assessing the legal consequences to him, of his
physical departure from Canada.
In the material before us, there is evidence
which, if believed, might convince the appropriate
immigration officials that the applicant has not
abandoned his application to be admitted as an
immigrant. This precise issue has not been decided
by an immigration officer, Special Inquiry Officer
or Adjudicator and the applicant is entitled to
have that issue explored and decided.
The record indicates that the only decision made
by the Adjudicator was that the applicant had left
Canada and thereby automatically lost any status
or advantage which he had gained under the
Adjustment of Status program.
As I have stated, I believe the Adjudicator erred
in law in holding the applicant, by the mere act of
leaving Canada, abandoned his application for
admission for permanent residence that he was
deemed to have made by registering under
section 8.
What the Adjudicator was required to decide, in
the first instance, was whether the applicant, being
an immigrant against whom was not available any
of the disqualifying conditions referred to in sec
tion 8(1)(b) (supra), had, on either of the occa
sions when he had left Canada (i.e. the trip to
Chicago, and the crossing from Sarnia to Port
Huron) abandoned his application for admission
which he was deemed to have made; if the appli
cant had been held not to have abandoned his
deemed application, the Adjudicator, after con
ducting the examination contemplated to be held
pursuant to the registration, 9th October 1973,
should have rendered the decision which would
have been rendered had the examination been held
in due course; however, if the decision of the
Adjudicator had been that the application deemed
to have been made on 9th October 1973 had been
abandoned, then, and only then, the applicant
should have been dealt with as a person not a
Canadian citizen or having Canadian domicile
who had come into Canada as a non-immigrant,
remained in Canada and taken employment with
out having been legally admitted.
This application is, therefore, granted; the
exclusion order and the departure notice set aside.
* * *
URIE J.: I agree.
* * *
RYAN 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.