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A-429-80
Baljit Singh Gill (Applicant)
v.
Minister off Employment and Immigration (Respondent)
Court of Appeal, Thurlow C.J., Ryan J. and MacKay D.J.—Toronto, September 18 and 19, 1980.
Judicial review — Immigration — Exclusion order — Applicant who came to Canada to marry his fiancée was in possession of a return ticket valid for 120 days — Decision by Adjudicator that he is not a genuine visitor since no specific time was fixed for his departure — Whether applicant is a genuine visitor — Application allowed — Immigration Act, 1976, S.C. 1976-77, c. 52, s. 19(1)(h) — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
APPLICATION for judicial review. COUNSEL:
Carter Hoppe for applicant. G. R. Garton for respondent.
SOLICITORS:
Abraham, Duggan, Hoppe, Niman, Stott, Toronto, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment rendered in English by
THURLOW C.J.: This is an application under section 28 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, to review and set aside an exclusion order made against the applicant on the ground that he is not a genuine visitor.
The applicant's evidence was not contradicted in any way. He was not shown to have misrepresent ed anything at any stage. His story that he came to Canada for the purpose of marrying his fiancée in fulfilment of an engagement of three years stand ing that had been arranged by his and his fiancée's parents before the fiancée left India to come to Canada was accepted as credible in light of evi dence of the ill health of his fiancée's mother. It is also undisputed that on arrival in Canada the applicant was in possession of a return ticket valid
for 120 days. His fiancée's application to sponsor him as an immigrant had previously been refused. He freely admitted he would like to stay and would stay in Canada as long as he was allowed to do so but also said on his oath that he did not intend to remain beyond such time as he might be permitted to remain as a visitor.
The following appears at page 25 of the transcript:
ADJUDICATOR: One other thing, your ticket's valid for a hun dred and twenty days; that's four months. I'll tell you right now, I couldn't really admit you for a hundred and twenty days, so, how long do you wish to remain in Canada as a visitor?
PERSON CONCERNED: It would depend on up to how much you want to give me permission.
In the course of his reasons, after accepting the applicant's evidence as to the occasion for his coming to Canada the Adjudicator said:
The fact that you kept saying throughout the inquiry that you would stay in Canada as long as you were given, and the fact that you have just married, leads me to doubt that you would ever want to return to India at all. I believe that when you left India, you have every intention of remaining here as long as possible. It is more probable than not that you, as a married man, and with your wife going through the possible heartbreak of a very sick mother, you would do everything possible to remain in Canada.
It's very difficult for me to see how you can be a genuine visitor if you do not have a specific time period by which you wish to leave Canada, and I realize the ticket is valid for one hundred and twenty days, but I still referred throughout the inquiry the fact that you were uncertain as to when you were to return to India. This is a case in my opinion where the evidence on both sides is even, and I have to refer to the burden of proof, and I find that you haven't met the burden of proof, and therefore that you are a person described in paragraph 19(1)(h) of the Immigration Act, a person who is not a genuine visitor, and I must order you excluded from Canada.
With respect, it appears to me that the Adjudicator misdirected himself with respect to the need for a more specific time period, in the circumstances of this case.
The applicant wished to stay as long as he would be allowed to stay as a visitor and several times expressed himself as intending to stay as long as the Adjudicator would allow. In my opinion there
is nothing in such an intention that is inconsistent with the applicant's purpose being regarded as temporary within the meaning of the statutory definition of "visitor" or with the applicant being a genuine visitor. The purpose is sufficiently specific in being for the time an officer would authorize him to remain as a visitor. Moreover, it is apparent from the Adjudicator's statement that he regarded the evidence on both sides as even and from his reliance on the burden of proof to reach his conclu sion, that the misdirection to which I have referred is of critical importance to his conclusion.
In my opinion the exclusion order should be set aside and the matter should be referred back to an Adjudicator for reconsideration and redetermina- tion on the basis that the fact that the applicant did not have a specific time fixed for his departure from Canada and did not ask for a particular number of days is not, in the circumstances of this case, evidence that he is not a genuine visitor.
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RYAN J.: I concur.
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MACKAY D.J.: I concur.
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