Cortez v. Canada ( Secretary of State )
IMM-2548-93
Rouleau J.A.
26/1/94
9 pp.
Application for judicial review of Adjudicator's decision applicant person described in Immigration Act, ss. 27(2)(a), 19(2)(a) and ordering deportation -- Applicant from El Salvador -- Arriving in Canada in 1987 -- Neither Canadian citizen nor permanent resident -- Convicted of three impaired driving offences in September and October 1989, and March 1990 -- Immigration Act, s. 27 report of November 1990, indicating applicant member of inadmissible class as described in s. 19(2)(b)(i) -- S. 19(2)(b)(i) prohibiting admission to any person convicted of two or more offences not arising out of single occurrence that would constitute offences punishable on summary conviction if any part of sentence served during five-year period immediately preceding day on which seeking admission to Canada -- On December 1, 1992 inquiry held pursuant to report -- Adjudicator, relying on Ruparel v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 615 (T.D.), concluding allegation applicant inadmissible not valid -- Ruparel holding s. 19(2)(a)(i), (ii) discriminating against immigrants on basis of age -- Adjudicator holding Ruparel also applying to s. 19(2)(b), and as only one of applicant's sentences served within two-year period of admissibility, allegation applicant inadmissible not valid -- Adjudicator's decision not appealed -- On February 1, 1993 s. 19(2)(a) amended to preclude admission to persons convicted in Canada of offence punishable by way of indictment by maximum term of imprisonment of less than 10 years -- Prior to February 1, 1993 s. 19(2)(a) excepting persons who satisfied Minister rehabilitated -- Second inquiry held pursuant to report dated March 2, 1993 -- Immigration Act, s. 34 providing no decision given under Act preventing holding of further inquiry by reason of making of another report under s. 20(1)(a) or s. 27(1) or (2) or by reason of arrest and detention for inquiry pursuant to s. 103 -- Adjudicator holding within his jurisdiction to examine new allegation relating to s. 19(2)(a), no undue delay -- Applicant alleging Adjudicator interpreted new s. 19(2)(a) to have retroactive effect -- Submitting that under "old" provisions had "right" to establish rehabilitated, as contemplated by Interpretation Act, s. 35 (now s. 43(c) and repeal of s. 19 not affecting right -- Alleging unreasonable delay as facts known to immigration officers November 5, 1990, but second inquiry not held until May 7, 1993 -- Application dismissed -- S. 34 clearly excluding res judicata in specific context of ss. 27 -- Adjudicator correctly holding having jurisdiction to examine whether applicant person described in ss. 27(2)(a), 19(2)(a) -- Real issue not retroactivity, but admissibility of applicant at time of inquiry in May 1993 -- Application of new s. 19(2)(a) not acting retrospectively on facts, but allowing determination of whether applicant can be disqualified from admission to Canada based on facts which were grounds for disqualification -- Applicant having three convictions registered against him, and falling within s. 19(2)(a) -- Timing of determination of admissibility particularly important as applicant's status never established -- At time of inquiry applicant's admissibility to be determined based on these facts and applicable provisions of Act, i.e. ss. 27(2)(a), 19(2)(a) -- Fundamental principle of immigration law non-citizens not having unqualified right to enter, remain in country -- When Adjudicator applied ss. 27(2)(a), 19(2)(a) as read after February 1993, not giving statute retrospective effect and committing no error -- Not unreasonable delay -- Report written one month after amendments to Act, Immigration officer had duty to write new report, inquiry held two months later -- Immigration Act, R.S.C., 1985, c. I-2, ss. 19(2)(a) (as am. by S.C. 1992, c. 49, s. 11), (b)(as am. idem), 27(2)(a) (as am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 4; 1992, c. 49, s. 16), 34, 103 -- Interpretation Act, R.S.C., 1985, c. I-21, s. 43(c) -- Criminal Code, R.S.C., 1985, c. C-46, s. 253(a) (as am. by R.S.C., 1985 (4th Supp.), c. 32, s. 59), (b) (as am. idem).