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T-5873-80
Arturo Juventino Heras (Applicant) v.
Minister of Employment and Immigration (Respondent)
Trial Division, Mahoney J.—Toronto, January 12; Ottawa, January 20, 1981.
Prerogative writs — Prohibition — Immigration — Application to prohibit respondent from executing deportation order made against applicant and to quash it — Applicant, a visitor, remained in Canada beyond period allowed — First permit issued by respondent under old Immigration Act — Second one, under new Immigration Act which repealed the old Act — Refusal of applicant to leave Canada when request ed to do so on expiry of second permit — Deportation order followed — Whether second permit illegally issued — Wheth er deportation order a nullity — Immigration Act, R.S.C. 1970, c. 1-2, s. 8 — Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 27(2), 37 — Interpretation Act, R.S.C. 1970, c. 1-23, s. 35(c).
Applicant entered Canada as a visitor but remained beyond the period allowed him. He subsequently reported to an immi gration officer and was issued two permits: the first one, under section 8 of the old Immigration Act (R.S.C. 1970, c. I-2) and the second one (issued on the former's expiry) under section 37 of the new Immigration Act, 1976 (S.C. 1976-77, c. 52) which repealed the old Act. When the second permit expired, appli cant was requested to leave Canada. He refused to do so and a deportation order followed. Applicant now seeks that the respondent be prohibited from executing the order and that it be quashed. He argues that at the date the new Act came into force, he had a status not taken from him by the repeal of the old Act and that consequently, not being the subject of a report under section 27, the permit under section 37 was illegally issued and hence, the deportation order is a nullity.
Held, the application for prohibition is dismissed. The appli cant's right to remain in Canada under the permit issued under the old Act continued until its expiry, but his rights on its expiry are defined by the new Act. A permit issued under the old Act conferred no status on the holder beyond authorizing him, while it subsisted, to remain in Canada. When it expired, he was "a person with respect to whom a report ... may be made" under paragraph 27(2)(e) of the new Act, being, since ten days after he entered Canada, a person who "entered Canada as a visitor and remains therein after he has ceased to be a visitor".
APPLICATION. COUNSEL:
C. Hoppe for applicant.
B. Evernden 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
MAHONEY J.: This is an application for a writ of prohibition prohibiting the respondent from executing a deportation order made against the applicant October 10, 1979, and for a writ of certiorari quashing the deportation order. A like application, Court No. T-5874-80, by the appli cant's brother, Cesar Efrain Heras, in respect of a deportation order made December 3, 1979, was made concurrently. The material facts are identi cal aside from dates. The evidence consists of the affidavit of a student-at-law in the applicant's solicitor's office exhibiting the applicant's affidavit and written submission filed in earlier proceedings in the Federal Court of Appeal and a book of documents entitled "Record" filed at the hearing. While it is immaterial to the issue, the fact that the respondent has concluded that the applicant's marriage, hereinafter referred to, is a marriage of convenience, one of a number entered into by the applicant and his relatives, underlies the making of the deportation order.
The applicant entered Canada, as a visitor, July 31, 1976. He was admitted for ten days and remained beyond that period. He married a Canadian citizen on December 12, 1976. In Febru- ary, 1977, he applied for permanent residence in Canada and his wife concurrently applied for his admission as a sponsored dependant. On February 11, 1977, a permit under section 8 of the Immi gration Act,' hereinafter "the old Act", issued to remain in force until February 10, 1978. That permit was eventually extended to expire June 11, 1978. On April 10, 1978, the Immigration Act,
1 R.S.C. 1970, c. 1-2.
1976, 2 hereinafter "the new Act", was proclaimed in force. It repealed the old Act. On June 9, a permit under section 37 of the new Act issued to remain in force until December 11, 1978. It was extended to expire March. 10, 1979. Each permit and each extension ensued upon the applicant reporting to an immigration officer. Specifically, the applicant's premise that the permit under the new Act and its extension were issued gratuitously is not true. He sought them.
Prior to March 10, 1979, the applicant was notified that the permit would not be further extended and he was requested, in writing, to leave Canada on or before March 31. At the same time, the applicant's wife was advised that her applica tion to sponsor his admission had been refused and of her right to appeal that decision. She did not appeal. Her application has been finally disposed of notwithstanding that she did not withdraw it.
The applicant declined to leave Canada and asked for an inquiry into his case. None was held. On April 18, the respondent, under subsection 37(5) of the Act, directed that the applicant leave Canada by May 3. He did not leave. The deporta tion order issued October 10, 1979, under subsec tion 37(6). This application was filed following a decision by the Federal Court of Appeal on December 8, 1980, that, in view of The Minister of Manpower and Immigration v. Hardayal, 3 it had no jurisdiction under section 28 of the Federal Court Act 4 to review and set aside a deportation order made pursuant to subsection 37(6) of the new Act.
The old and new Acts both provide for a depor tation order to issue as the respondent's ultimate recourse in the event a person no longer subject of a subsisting permit remains in Canada. The sig nificant difference is that under the old Act the applicant would, in the circumstances, have been entitled to appeal the order to the Immigration
2 S.C. 1976-77, c. 52.
3 [1978] 1 S.C.R. 470.
4 R.S.C. 1970 (2nd Supp.), c. 10.
Appeal Board; under the new, he is not, although his wife, as a sponsoring Canadian citizen, was.
The thrust of the applicant's argument, as I understand it, is that, on April 10, 1978, when the new Act was proclaimed, he had a status in Canada not taken from him by the repeal of the old Act. If that is accepted, then, it is said, not being a person with respect to whom a report had or might have been made under subsection 27(2) of the new Act, he was not a person to whom a permit under section 37 of the new Act could legally issue. It follows that, the permit being a nullity, the respondent's making a deportation order ensuing upon its expiration is a nullity.
The transitional provisions of the new Act are silent as to the holder of a permit in the applicant's circumstances although subsection 124(1) does deal with permit holders in other circumstances. I infer that Parliament's silence was intended. In my view, paragraph 35(c) of the Interpretation Act 5 applies.
35. Where an enactment is repealed in whole or in part, the repeal does not
(c) affect any right, privilege, obligation or liability acquired, accrued, accruing or incurred under the enactment so repealed;
The applicant's right to remain in Canada under the permit issued under the old Act continued until its expiry, but his rights on its expiry are defined by the new Act.
The applicant attributes much more to a Minis ter's permit under either Act tha the law has provided. A permit issued under the old Act con ferred no status on the holder beyond authorizing him, while it subsisted, to remain in Canada. Notwithstanding issue of the permits, the appli cant has, since ten days after he entered Canada, been a person who "entered Canada as a visitor and remains therein after he has ceased to be a visitor". When the permit under the old Act expired, he was "a person with respect to whom a
5 R.S.C. 1970, c. 1-23.
report ... may be made" under paragraph 27(2)(e) of the new Act. The permit issued under the new Act was a permit which the Minister was entitled to issue and the deportation order was an order the Minister was entitled to make after the permit had expired and the applicant had failed to comply with the direction made under subsection 37(5).
JUDGMENT
The application is dismissed with costs.
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