Judgments

Decision Information

Decision Content

A-426-74
Angelos Litas (Applicant) v.
Minister of Manpower and Immigration (Respondent)
Court of Appeal, Thurlow and Ryan JJ. and MacKay D.J.—Toronto, February 18 and 19, 1975.
Judicial review—Immigration—Entry as visitor—Immi- grant obtaining document to remain for employment—Over- staying—Document found false—Deportation—Immigration Act, R.S.C. 1970, c. I-2, ss. 2, 7 and 18—Federal Court Act, s. 28.
The applicant was admitted to Canada as a non-immigrant visitor for a three-month period expiring November 11, 1973. On November 1, 1973, he purchased, from a person not fully identified, a document on a form of the Department of Man power and Immigration, purporting to be an admission record and employment visa, signed by an immigration officer, grant ing the applicant admission to Canada, under section 7(1)(h) of the Immigration Act, until October 31, 1974, with permission to take temporary employment. The applicant worked for the employer named in the document until November 1974, when he sought an extension from the Department. The document was found to be forged. After an inquiry, an order was made for the deportation of the applicant, as a person described in section 18(1)(e)(vi) of the Immigration Act, in that he entered Canada as a non-immigrant and remained there after ceasing to be a non-immigrant, and in section 18(1)(e)(viii), in that he remained in Canada with an improperly issued visa. The appli cant brought a section 28 application for judicial review and setting aside of the decision.
Held, the application should be dismissed.
Per Thurlow J.: Besides overstaying the limited period for which he was admitted as a non-immigrant visitor, under section 7(1)(c) of the Immigration Act, the appellant stayed on, not as a visitor, but as a person admitted under section 7(1)(h) for temporary employment, and accepted employment as a person in that class. He was no longer in the class of visitor, so he was no longer a non-immigrant as defined in section 2 of the Immigration Act. This failure to comply with section 18(1)(e)(vi) of the Act was sufficient to support the deporta tion order. As to the second ground, based on the first part of section 18(1)(e)(viii) of the Act, the mere possession by the applicant of the false document satisfied one requirement of the statute. The other requirement, that the document should pertain to the applicant's admission, was met by the fact that the document purported to be a record of the applicant's admission to Canada as a non-immigrant of a particular class as well as a person able to take employment.
Per Ryan J.: The deportation should be upheld on the first ground. It was unnecessary to decide whether it was supported by the second ground.
De Marigny v. Langlais [1948] S.C.R. 155 and Brooks v. Minister of Manpower and Immigration [1974] S.C.R. 850, followed. In re Morrison [1974] 2 F.C. 115, applied.
JUDICIAL review. COUNSEL:
B. North, Q.C., for applicant. K. Braid for respondent.
SOLICITORS:
Phillips & Phillips, Toronto, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment delivered orally in English by
THURLow, J.: The applicant was admitted to Canada under paragraph 7(1)(c) of the Immigra tion Act as a non-immigrant visitor or tourist on August 12, 1973 for a period of three months expiring on November 11, 1973. On or about November 1, 1973, he obtained from a person known to him as "Takie", whom he met in a restaurant and to whom he paid $250.00 in the belief that he had some influence with the Depart ment of Manpower and Immigration, a document on a departmental form purporting to be an admis sion record and employment visa and purporting to be signed by an immigration officer, granting the applicant admission to Canada under paragraph 7(1)(h) of the Immigration Act until October 31, 1974, and permission to take employment. There after the applicant worked for the employer named in the document until November 1974, when at the suggestion or direction of the employer, the appli cant attended at an immigration office in quest of an extension. It was then discovered that the docu ment was forged. A report under section 18 and an inquiry followed at the conclusion of which it was ordered that the applicant be deported on grounds expressed as follows:
(3) You are a person described in subparagraph 18(1)(e)(vi) of the Immigration Act in that you entered Canada as a non- immigrant and remain therein after ceasing to be a non-immigrant;
(4) You are a person described in subparagraph 18(1)(e)(viii) of the Immigration Act in that you have remained in Canada with an improperly issued visa;
The statutory provisions referred to read as follows:
18. (1) Where he has knowledge thereof, the clerk or secre tary of a municipality in Canada in which a person hereinafter described resides or may be, an immigration officer or a constable or other peace officer shall send a written report to the Director, with full particulars concerning
(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,
(viii) came into Canada or remains therein with a false or improperly issued passport, visa, medical certificate or other document pertaining to his admission or by reason of any false or misleading information, force, stealth or other fraudulent or improper means, whether exercised or given by himself or by any other person.
Under subsection 18(2) any such person is sub ject to deportation.
Moreover it is settled by de Marigny v. Langlais' that if either of the two grounds of the deportation order above cited is sustainable in law the order is valid.
The applicant's submission with respect to para graph 18(1)(e)(vi), as I understood it, was that granting that the document obtained from "Takie" was void the applicant was not aware of it and so must be regarded as being still a visitor or tourist in Canada, albeit one who has inadvertently over stayed the period for which he had permission to be in Canada, and that something more must have occurred such as an intent to stay illegally or the obtaining of a new status to put him in the catego ry of a person who has ceased to be a non-immi grant. The answer of counsel for the respondent to
[1948] S.C.R. 155 per Kellock J. at 160.
this was that upon the termination of the initial three-month period for which the applicant was admitted as a visitor or tourist the applicant ceased to be in the class in which he was admitted as a non-immigrant and that since he was not thereaf ter allowed to enter or be in Canada in that or any other class of non-immigrant he also ceased to be a non-immigrant as defined by the statute.
The relevant statutory provisions are the following:
2. In this Act
"Non-immigrant" means a person who is a member of any of the classes designated in subsections 7(1) and (2);
"entry" means the lawful admission of a non-immigrant to Canada for a special or temporary purpose and for a limited time;
7. (1) The following persons may be allowed to enter and remain in Canada as non-immigrants namely:
(c) tourists or visitors;
(h) persons engaged in a legitimate profession, trade or occupation entering Canada or who, having entered, are in Canada for the temporary exercise of their respective callings;
The submission of counsel for the respondent as to the effect of these provisions appears to me to be supported by a footnote to the judgment of this Court in In re Morrison 2 where at page 123 the Chief Justice said:
(b) The application of section 7(3) of the Immigration Act to these facts is based on the view that, when section 7(3) speaks of the "particular class in which he was admitted as a non-immigrant", the "limited time" for which he was admit ted enters into the definition of the "class" as opposed to the view that the section refers only to the classes enumerated in section 7(1), which latter view is the view suggested by a superficial reading of section 7(1) and (3). I have adopted this view because the definition of "entry" in section 2 clearly indicates that a non-immigrant is to be admitted not only for "a special or temporary purpose" but is also to be admitted for "a limited time" and because the machinery of the Act would be useless to enforce the limitations on time unless such a limitation enters into the definition of a "par- ticular class" for the purposes of section 7(3).
2 [1974] 2 F.C. 115.
As far as I am aware there is no other expression of opinion on the point but while I am in no way inclined to disagree with the view so taken, it does not appear to me to be necessary for the purposes of the present case to reach any concluded view on it. Whether or not by merely overstaying a period for which he is admitted a person ceases to be in the class of non-immigrant in which he was admit ted, the present case, as it seems to me, is one in which besides merely overstaying the limited period, the applicant stayed on not as a tourist or visitor but as a person admitted under paragraph 7(1)(h) and who thereupon took employment and continued in employment as a person in that class. He was not, however, in that class and as he was in my view no longer in the class of tourist or visitor, it appears to me to follow that he was no longer a non-immigrant as defined by the statute. The attack on paragraph 3 of the deportation order in my opinion therefore fails.
With respect to paragraph 4 of the deportation order it should first be observed that it is a finding under the first portion of paragraph 18(1)(e)(viii) and not under the second portion of that para graph. It was not suggested that the document obtained by the applicant from "Takie" was not a false document but counsel submitted (1) that the finding was erroneous because the applicant acted on an honest belief that the document was valid and (2) that it was not a visa or other document "pertaining to his admission" within the meaning of paragraph 18(1)(e)(viii).
In Minister of Manpower and Immigration v. Brooks', Laskin J. (as he then was) speaking for the Supreme Court with respect to the second portion of paragraph 18(1)(e)(viii) inter alia said at page 865:
Again, since criminal punishment is not the object of the enforcement of immigration and deportation policies by means of special inquiries, I cannot be persuaded that intentional or wilful deception should be read in as a prerequisite. It was noted by counsel, as well as by the Board, that mens rea is
3 [1974] S.C.R. 850.
made a condition of culpability under s. 50(b) and (/) [now s. 46] which sets out criminal offences, and hence is of a different order than what is prescribed by ss. 19 and 26.
It appears to me that this part of the Court's reasoning is equally applicable to the first portion of paragraph 18(1)(e)(viii).
Earlier in the reasons the learned Judge had said at page 858:
The Board appeared to be of opinion that only "official" documents are covered by s. 19(1)(e)(viii), and that to be "official" a document must be expressly mentioned in the Act or Regulations. There is no requirement of officiality as the Board would have it. The basic questions are whether the documents are authorized, that is, is their source legitimate, and do they relate to admission to Canada. If there is any difficulty in subsuming Form 471 under s. 19(1)(e)(viii), it lies in bringing it within the words "remains [in Canada] with a false ... document pertaining to his admission". "With" in this connection is not limited in meaning to "possessed of" but, contextually, extends to "agreeably to" or "because of", or "by use of". Certainly, Brooks was not possessed of his Immigrant Record Card, and yet the Board found it was a document pertaining to his admission.
It seems to me to follow from this that the applicant's mere possession of the false document satisfies the requirement of the word "with" in the statute and leaves unresolved only the question whether it was a document pertaining to the appli cant's admission. Plainly it was not a document used in connection with his admission to Canada upon his arrival, since it was not then in existence. But it should not be overlooked that as a document it purports to be a record of the applicant's admis sion to Canada as a non-immigrant of a particular class as well as a permission to take employment. In that sense it appears to me to pertain to the applicant's admission. During the period stated in it that was the applicant's authority for his admis sion and presence replacing or supplanting, as it purported to do, his earlier entry record numbered A5580621. It is what he produced when he sought an extension.
I am, accordingly, inclined to think both that mens rea is unnecessary to the application of paragraph 18 (1)e) (viii) and that the document in question is a document pertaining to the appli-
cant's admission to Canada within the meaning of that paragraph and that in consequence the attack on paragraph 4 of the deportation order also fails. As I see it, however, it is unnecessary to reach a concluded view on this branch of the case since my conclusion that paragraph 3 of the deportation order is valid is sufficient to dispose of the application.
In my opinion the application should be dismissed.
* * *
The following are the reasons for judgment delivered orally in English by
RYAN J.: In my view, the deportation order in question is supportable on the basis of the first three paragraphs of the order. The Special Inquiry Officer properly found that the applicant was not a Canadian citizen; was not a person having Canadi- an domicile; and that he was a person described in subparagraph 18(1)(e)(vi) of the Immigration Act in that he entered Canada as a non-immigrant and remained in Canada after ceasing to be a non-immigrant.
The applicant overstayed the three-month period he had been permitted on his admission as a tourist or visitor. During the period he remained, he engaged in work on a regular basis on the strength of the false document purporting to admit him with a subsection 7(1)(h) status. Such con duct was obviously inconsistent with tourist or visitor status and was enough to destroy it even if, as is probably not the case, the overstaying of the period of permissible presence was not in itself sufficient to put an end to the status. I would also note that there is nothing in the record to indicate that the applicant continued to be a non-immi grant on some basis other than that of being a tourist or visitor.
It is not necessary to decide whether the depor tation order is also supportable on the ground set out in its paragraph (4), which reads:
You are a person described in subparagraph 18(1)(e)(viii) of the Immigration Act in that you have remained in Canada with an improperly issued visa.....
I therefore refrain from expressing an opinion on this point.
I would dismiss the application.
* * *
MACKAY D.J. concurred.
 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.