A-217-80
Robert Dale Gressman (Applicant)
v.
Department of Manpower and Immigration
(Respondent)
Court of Appeal, Heald and Urie JJ. and Kelly
D.J.—Winnipeg, September 16; Ottawa, Septem-
ber 22, 1980.
Judicial review — Immigration — Application to set aside a
departure notice — Applicant's father applied for and was
granted landing for himself and his family except for appli
cant — Applicant's application was rejected because, prior to
processing, he was convicted of criminal offences — Applicant
was before Adjudicator pursuant to a s. 27(2) report
Whether Adjudicator erred in deciding that he had no juris
diction to review decision not to grant landing status to
applicant — Whether impugned departure notice is invalid
because applicant allegedly acquired common law domicile in
Canada — Application dismissed — Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, s. 28 — Immigration Act,
R.S.C. 1952 (Supp.), c. 325, s. 5(d) — Immigration Act, 1976,
S.C. I976-77. c. 52, s. 27(1),(2).
APPLICATION for judicial review.
COUNSEL:
M. Corne, Q.C. for applicant.
B. Meronek for respondent.
SOLICITORS:
Corne & Corne, Winnipeg, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
URIE J.: The departure notice sought to be set
aside in this section 28 application was issued on
March 19, 1980, on the ground that the applicant
was not a Canadian citizen or a permanent resi
dent and had been convicted of an offence under
the Criminal Code, R.S.C. 1970, c. C-34.
Essentially only two attacks were made on the
decision leading to the notice, neither of which
have, in my opinion, any relevance in this applica-
tion just as they had no relevance at the inquiry
which led to the departure notice.
First, it was argued that the Adjudicator had
erred in failing to find that the applicant was a
permanent resident by virtue of his having been
granted landing, or was entitled to have been
considered as landed, and thus to be a permanent
resident. It was said that he ought, as a result, to
have been reported under section 27(1) of the
Immigration Act, 1976, S.C. 1976-77, c. 52 with
the advantages accruing therefrom rather than
under section 27(2), as had been the case. The
basis of the argument flowed from an application
which, in 1973, had been made by the applicant's
father on behalf of himself and all other members
of his family, including the applicant, for landed
immigrant status pursuant to the adjustment of
status provisions of the amendments to the Immi
gration Appeal Board Act, S.C. 1973-74, c. 27,
and the Regulations promulgated pursuant there
to. Eventually, in 1975, landing was granted to all
members of the applicant's family except himself.
The evidence adduced at the inquiry clearly dis
closes that the application for landing made on
behalf of the applicant was rejected because, sub
sequent to the application but prior to the comple
tion of the processing thereof, the applicant had
been convicted of some twenty-four offences and
imprisoned. Thus, by virtue of section 5(d)' of the
Immigration Act, R.S.C. 1952 (Supp.), c. 325
which was then in force, the immigration authori
ties determined that he was not admissible to
Canada.
I 5. No person, other than a person referred to in subsection
(2) of section 7, shall be admitted to Canada if he is a member
of any of the following classes of persons:
(d) persons who have been convicted of or admit having
committed any crime involving moral turpitude, except
persons whose admission to Canada is authorized by the
Governor in Council upon evidence satisfactory to him
that
(i) at least five years, in the case of a person who was
convicted of such crime when he was twenty-one or
more years of age, or at least two years, in the case of a
person who was convicted of such crime when he was
under twenty-one years of age, have elapsed since the
termination of his period of imprisonment or comple
tion of sentence and, in either case, he has successfully
rehabilitated himself, or
In my view, that was an administrative decision
which was not an issue before the Adjudicator. He
quite properly decided that he had no jurisdiction
with regard thereto any more than he had to
determine whether or not the officials erred in so
concluding.
The applicant was before him on an inquiry
convened as a result of a report issued pursuant to
section 27(2) of the 1976 Act in September 1978.
As a result the Adjudicator first had to determine
whether or not the applicant was a Canadian
citizen or a permanent resident. Since he found,
correctly in my view, that he was neither because
he had never been landed, it became incumbent
upon him to determine whether or not the appli
cant was a person who had been convicted of an
offence under the Criminal Code. Since the evi
dence disclosed that he had been convicted of such
an offence in May 1978, he then had to decide
only whether to issue a deportation order or a
departure notice. Upon due consideration he decid
ed upon the latter and that is the subject of the
present application.
In summary, then, the applicant's first attack
must fail because of its lack of relevance to the
issues before the Adjudicator. The fact is that the
applicant has never been granted landing and
therefore, under the 1976 Act, cannot be a perma
nent resident. It follows that he was properly the
subject of a report under section 27(2) of that Act.
The second attack on the decision of the
Adjudicator was that since the applicant had, by
the time the adjustment of status provisions came
into force in 1973, acquired domicile at common
law in Canada, the impugned order is invalid. This
attack, in my opinion, is without merit. The Immi
gration Act, 1952 governed the status of immi-
(ii) in the case of a person who admits to having commit
ted such crime of which he was not convicted, at least
five years, in the case of a person who committed such
crime when he was twenty-one or more years of age,
or at least two years, in the case of a person who
committed such crime when he was under twenty-one
years of age, have elapsed since the date of commis
sion of the crime and, in either case, he has successful
ly rehabilitated himself;
grants in all its aspects in 1973. Section 4 of that
Act . defined the requirements for a person to
acquire Canadian domicile and as such superseded
the common law on the question of domicile in so
far as persons seeking admission to Canada were
concerned. Under the section the first requisite
was that the person claiming domicile must have
been landed before the five-year period required to
claim'Canadian domicile began to run. The appli
cant had not in 1973, nor has he ever to this time,
been granted landing under either the 1952 or
1976 Acts. Thus he cannot under the 1952 Act
have acquired Canadian domicile or under the
1976 Act, permanent residence. This attack, then,
must also fail.
The section 28 application should, therefore, be
dismissed.
* * *
HEALD J.: I agree.
* * *
The following are the reasons for judgment
rendered in English by
KELLY D.J.: I concur in the reasons for judg
ment herein of Urie J.A.
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