A-266-76
Fouad Shafi-Javid (Applicant)
v.
Minister of Manpower and Immigration
(Respondent)
and
Immigration Appeal Board and Deputy Attorney
General of Canada (Mis -en-cause)
Court of Appeal, Jackett C.J., Pratte J. and Hyde
D.J.—Montreal, June 15 and October 4, 1976.
Judicial review—Immigration—Memoranda required by
Rule 1403 Deportation order—Whether Special Inquiry
Officer erred in law within meaning of s. 28(1)(b) Meaning of
"bona fide" non-immigrant in Immigration Act, s. 5(p)—
Immigration Act, R.S.C. 1970, c. I-2, ss. 2, 5(p), 7(1 )(c),(3), 22,
23—Federal Court Act, s. 28(1)(b)—Federal Court Rule 1403.
Applicant came to Canada in order to attempt to get a visa
to the United States of America to visit his brother. He was
admitted for a period expiring before March 12, 1976, and on
that date an immigration officer made a report as a result of
which an inquiry was held as though the applicant was a person
seeking admission to Canada as a visitor. The Special Inquiry
Officer made a deportation order against the applicant on the
ground that he was "not a bona fide non-immigrant".
Held, the application is allowed, the deportation order is set
aside and a new inquiry is ordered based on the finding that the
applicant is within the class of bona fide non-immigrants. The
conclusion of the Special Inquiry Officer that the applicant was
not a bona fide non-immigrant was a finding of fact which the
Federal Court has no jurisdiction to review under section
28(1)(b) unless the officer misdirected himself in law in
making that finding. The Special Inquiry Officer must have
concluded that the applicant was not a bona fide non-immi
grant within the meaning of section 5(p) of the Immigration
Act either because he judged the applicant was in Canada for a
purpose that was not a proper purpose or because he judged
that a person who comes to Canada for a temporary stay for
the purpose for which the applicant came is not a "visitor"
within the meaning of section 5(p). The first conclusion could
only be reached on the assumption that the effect of the words
"bona fide" is to emphasize that a person merely passing
himself off as a visitor or other non-immigrant falls within the
prohibited class. The second conclusion could only be based on
the assumption that the person is not a bona fide non-immi
grant if his purpose for being here is evil or unacceptable. The
expression "bona fide" refers to the authenticity of the person
as a visitor and not to the acceptability of his motives and the
Special Inquiry Officer erred in his interpretation of section
5(p) and that was an error in law. Alternatively, if the Special
Inquiry Officer based his decision on the finding that the
applicant was not a "visitor" he was taking too narrow a view
of the meaning of that word in the statute. The statute does not
define the word and it is impossible to think of any meaning of
it that would exclude the applicant. The conclusion that the
applicant was not a visitor was therefore also based on an error
in law.
JUDICIAL review.
COUNSEL:
S. J. Schacter for applicant.
J. P. Belhumeur for respondent.
SOLICITORS:
S. J. Schacter for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
JACKETT C.J.: This is a section 28 application'
to set aside a deportation order made against the
applicant.
The application was brought on for hearing on
June 15, 1976, pursuant to Rule 1403, without
memoranda having been filed by the parties; and
judgment was reserved. As, however, the Court
was of the view that the parties might be able to
afford further assistance on the point that it found
troublesome, the parties were granted leave to file,
within fixed periods, memoranda in support of
their respective positions. No memoranda have
1 See section 28(1) of the Federal Court Act, R.S.C. 1970, c.
10 (2nd Supp.), which reads as follows:
28. (1) Notwithstanding section 18 or the provisions of
any other Act, the Court of Appeal has jurisdiction to hear
and determine an application to review and set aside a
decision or order, other than a decision or order of an
administrative nature not required by law to be made on a
judicial or quasi-judicial basis, made by or in the course of
proceedings before a federal board, commission or other
tribunal, upon the ground that the board, commission or
tribunal
(a) failed to observe a principle of natural justice or
otherwise acted beyond or refused to exercise its
jurisdiction;
(b) erred in law in making its decision or order, whether
or not the error appears on the face of the record; or
(c) based its decision or order on an erroneous finding of
fact that it made in a perverse or capricious manner or
without regard for the material before it.
been filed pursuant to such leave. 2
The sole question that arises in connection with
this section 28 application is whether the Special
Inquiry Officer "erred in law", within the meaning
of those words in section 28(1)(b), in making the
deportation order.
The basic facts are not really in dispute and, as I
understand them, they may be summarized as
follows:
1. the applicant and his father, nationals and
residents of Iran, being desirous of visiting a
brother of the applicant and other relatives in
the United States, applied for United States
visas for that purpose; and, while such a visa
was granted to the father, the applicant was
refused one;
2. at the brother's suggestion, the applicant
came to Canada, with a view to waiting in
Canada while the brother tried to get him a
United States visitor's visa;
3. the applicant arrived in Canada on or about
December 8, 1975 and was, apparently, admit
ted as a non-immigrant for a period that expired
before March 12, 1976;
4. on March 12, 1976, an immigration officer
made a report under section 22 of the Immigra
tion Act (read with section 7(3)) as a conse
quence of which an inquiry was held, by virtue
of section 23, on April 12, 1976, as though the
applicant was "a person seeking admission to
Canada" as a visitor under section 7(1)(c);'
2 Since the expiration of the time so fixed for him, a memo
randum has been filed on behalf of the respondent and has been
considered in reaching our conclusion.
3 See the following provisions of the Immigration Act, R.S.C.
1970, c. I-2:
7. (3) Where any person who entered Canada as a non-
immigrant ceases to be a non-immigrant or to be in the
particular class in which he was admitted as a non-immi
grant and, in either case, remains in Canada, he shall
forthwith report such facts to the nearest immigration officer
and present himself for examination at such place and time
as he may be directed and shall, for the purposes of the
examination and all other purposes under this Act, be
deemed to be a person seeking admission to Canada.
2. In this Act
(Continued on next page)
5. at the conclusion of the Inquiry, the Special
Inquiry Officer made a deportation order
against the applicant on the ground that he was
"a person described in paragraph 5(p) of the
Immigration Act" in that, in the opinion of the
officer, he was "not a bona fide non-immi
grant".
In my opinion, the conclusion of the Special
Inquiry Officer that, in his opinion, the applicant
was not a bona fide non-immigrant was a finding
of fact. This Court has no jurisdiction under sec
tion 28(1)(b) to review a finding of fact by a
Special Inquiry Officer unless that officer misdi
rected himself in law in making that finding.
The question that concerned the Court in this
case, when it reserved judgment, was whether the
Special Inquiry Officer had erred in law in finding
that the applicant was "not a bona fide
non-immigrant".
The following portions of the transcript of the
Inquiry are, in my view, relevant to the question as
to the true nature of the Special Inquiry Officer's
finding that the applicant was "not a bona fide
non-immigrant":
Q. Mr. Shafi, why is it that you want to remain in Canada
for two months?
A. Because my brother has done some routine job for me to
go to the United States and I have not seen him for a long
time so I would like to go and visit him.
Q. Had you planned to come to Canada prior leaving Iran?
A. No.
Q. Why is it that you are presently in Canada?
A. I guess I answered the question, because I wanted to go in
United States; when I was in London, I went to the
Embassy and got a visa to come to Canada.
(Continued from previous page)
"admission" includes entry into Canada, landing in Canada,
and the return to Canada of a person who has been
previously landed in Canada and has not acquired Canadi-
an domicile;
"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;
Q. Am Ito understand that the reason why you are presently
in Canada it is because it is in a way a step stone for the
United States of America?
A. I did not have no plan to come to Canada as a step stone
to go to the United States but it just happened that I
could not get a visa to go to the United States and I came
to Canada.
Q. Why is the fact that you could not get any visa to go to
the United States, you have remained in Canada instead
of leaving for your country of citizenship?
A. I talked to my brother and he told me to come to Canada,
to Toronto, then I can get you visa to come to Canada to
get a visa to go to the United States because it is very
close to the States and I could take you to the United
States.
Q. When you did visit your Embassy in London, were you
asked the purpose of your trip to Canada?
A. They asked me how long I intend to stay in Canada and I
say four weeks, I did not tell them I wanted to stay
permanently so I got the visa.
Q. Mr., when you visited our Embassy in London, were you
asked the purpose of your trip to Canada?
A. They asked me and I told them I am just going to
Canada for visiting.
Q. The purpose of your trip to Canada, was it really to visit
or only to obtain a U.S. visa?
A. To get a visa.
Q. Mr. Shafi, to remain in Canada, as you were admitted,
have you visited this office on several occasions?
A. Yes, on the date they told me to come.
Q. Once on one of those visits, have you submitted a letter to
be considered into Canada as a student?
A. Yes, because I wanted to go to school and learn French
but not stay here permanently.
Q. This request to go to school, was it only to enable you to
remain in Canada long enough to secure and obtain a
U.S. visa?
A. Do you mean the letter I got, the acceptance of the
school?
Q. Yes?
A. Not to stay here permanently but to learn a little bit of
the other languages.
Q. But was it to enable you to obtain admission into Canada
in order to facilitate the reception of a U.S. visa?
A. Not what you mean but I wanted to go to school because
I wanted to use my time and not to waste my time
sleeping, going to the movies, walking around. I wanted
to learn something because if you know more languages,
you are better person.
BY SPECIAL INQUIRY OFFICER (to person concerned):
—Mr. Shafi, I have told you that I would take into con
sideration section 5 of the Immigration Act and that if
you were a person described within this section, it will be
sufficient grounds to cause deportation.
I will read to you section 5(p) of the Immigration Act:
No person, other than a person referred to in subsec
tion 7(2), shall be admitted to Canada if he is a member
of any of the following classes of persons:
(p) persons who are not, in the opinion of a Special
Inquiry Officer, bona fide immigrants or
non-immigrants.
Q. Do you understand this?
A. Yes.
—The reason that I am reading to you this subsection is
that at this inquiry it has been shown that your trip to
Canada is only a consequence of a refusal made by the
U.S. Consulate to a visa for the United States of Ameri-
ca, that you are coming into Canada because it is close to
the United States of America. I am of the opinion that if
you would go back to Iran and get in Iran for the
issuance of a visa, this visa would be granted to you the
same as it will in Canada.
Q. Do you understand this?
A. Yes.
Q. Regarding the comments that I have made, do you have
anything to say?
A. Yes, I do. The only request I got, it is only two months
permission to stay in Canada with regard to go to the
States, after, I will go back to Iran.
BY COUNSEL (to special inquiry officer):
—He was anxious to see his brothers and a sister and
nephews and nieces and seeing that he is so close and I
don't see any good harm I believe the strict application
was more harm in this case. Apparently his brother is
making an effort to obtain a visa and if it is refused he
will go back.
BY SPECIAL INQUIRY OFFICER (to counsel):
—But as I have said at the beginning of this inquiry, the
purpose of the said inquiry is to determine the admissibil
ity of your client and if he is a person that may not be
admitted, a deportation order will be issued.
From my reading of the transcript, it seems
clear to me that the basis upon which the Special
Inquiry Officer held that the applicant was not a
bona fide non-immigrant within the meaning of
section 5(p) of the Immigration Act was either his
conclusion that the applicant was in Canada for a
purpose that, in the opinion of the Special Inquiry
Officer, was not a proper purpose and therefore
the applicant was not a "bona fide" visitor within
section 5(p), or his conclusion that a person who
comes to Canada for a temporary stay for the
purpose for which the applicant came is not a
"visitor" to Canada within the meaning of that
provision. 4
The first question is, therefore, in my view,
whether section 5(p) of the Immigration Act,
properly construed, has the meaning that the Spe
cial Inquiry Officer must have attributed to it if he
proceeded on the first of these two possible conclu
sions. Section 5, in so far as relevant, reads as
follows:
5. No person, other than a person referred to in subsection
7(2), shall be admitted to Canada if he is a member of any of
the following classes of persons:
(p) persons who are not, in the opinion of a Special Inquiry
Officer, bona fide immigrants or non-immigrants;
Applied to the facts of this case, the question, as I
understand it, on this aspect of the matter, is
whether the effect of the words "bona fide" is
(a) merely to emphasize that a person who is
passing himself off as a visitor or other non-
immigrant but is not really a visitor or other
non-immigrant falls within the prohibited class,'
or
(b) that a person does not belong to the class
"bona fide ... non-immigrants", even if he is a
person who is a visitor or other non-immigrant,
if he is here for some evil or unacceptable
purpose.
If he came to the first of the two conclusions that I
have suggested, the Special Inquiry Officer pro
ceeded on the second of these two possible views.
I am of the view that, if that was the basis of his
decision, the Special Inquiry Officer erred in his
interpretation of section 5(p) and that such error
was an error in law. In other words, in my view,
the expression "bona fide" refers to the authentici
ty of the person as a visitor and not to the accepta
bility of his reason for being a visitor. This view
would appear to be supported by the French ver
sion of section 5(p) which speaks of "les personnes
4 See Appendix.
5 The typical person who is not a "bona fide" non-immigrant
is a person who, while passing himself off as a visitor, comes to
Canada to become a permanent resident. It is more difficult to
conceive of a person who is not a bona fide "immigrant".
qui ... ne sont pas des . non-immigrants
authentiques".
If, on the other hand, the basis for the Special
Inquiry Officer's decision was that the applicant
was not a "visitor", I am of the view that he took
too narrow a view as to the meaning of that word
in this statute. The statute itself does not provide a
definition of the word "visitors" and I do not deem
it advisable to attempt one. I cannot, however,
think of any meaning to ascribe to the word in this
context that would exclude the applicant on the
undisputed facts of this case without also exclud
ing many substantial classes of persons who, in my
view, must have been intended to fall within the
word "visitors" in section 5(p). If, therefore, the
real basis of the decision attacked was the conclu
sion that the applicant was not a visitor to Canada,
I am of the view that it was based on an error in
law.
It follows that, in my view, the section 28
application should be allowed, the deportation
order should be set aside and the Inquiry instituted
by the report under section 22 (read with section
7(3)) should be re-conducted, if the applicant is
still in Canada, upon the basis that the applicant
was not within the class of persons who are not
bona fide non-immigrants by reason of his being in
Canada to facilitate arrangements for a visit to the
United States.
* * *
PRATTE J.: I agree.
* * *
HYDE D.J.: I agree.
APPENDIX
Within wide limits the question as to whether
certain facts fall within the meaning of an ordi
nary word such as "visitor" is, in my view, a pure
question of fact. Compare Canadian Lift Truck
Co. Ltd. v. Deputy Minister of National Revenue
for Customs and Excise 6 , Quebec Hydro Electric
Commission v. Deputy Minister of National
6 (1956) 1 D.L.R. (2d) 497 (S.C. of C.).
Revenue for Customs and Excise', Brutus v.
Cozens 8 , and The Consumers' Gas Company v.
Deputy Minister of National Revenue for Cus
toms and Excise 9 . A finding on that question may,
however, go beyond what the statutory language
permits and, for that reason, be an error in law.
Compare Great Western Railway Company v.
Batir 1°
I think it is reasonably clear that the word
"visitors" as used in section 7(1)(c) is the plural of
"visitor" in the sense of "one who visits a person or
place". (See Concise Oxford Dictionary.) One way
of viewing the problem as to the ambit of the word
in this context is to consider whether the word is
used in the very wide sense of the verb "visit":
"call on a person or at a place, temporary resi
dence with a person or at a place ...", or whether
it is used in the more restricted sense of that verb:
"Go, come, to see (person, place, etc. or abs.) as
act of friendship or ceremony, on business, or from
curiosity ...."" (See Concise Oxford Dictionary.)
In favour of the more restricted sense, the follow
ing may be urged:
(a) that the wider sense is not to be found in
many dictionaries regarded as authoritative,
e.g., the Petit Robert and the Shorter Oxford
English Dictionary,
(b) the use of the word "visitors" with the word
"tourists" in section 7(1)(c), and the fact that
paragraph (c) occurs in the middle of section
7(1) and is not a "catch-all" paragraph at the
end of the subsection, and
(c) the fact that the wider sense of "visitors"
would include almost all of the classes of persons
described in the other paragraphs of section
7(1).
In favour of the wider sense, the following may be
urged:
(a) that it is inconceivable that Parliament
meant to exclude, from the classes of admissible
non-immigrants, the very large number of per
sons who come to Canada temporarily merely to
7 [1970] S.C.R. 30.
8 [1973] A.C. 854.
9 (1975) 6 N.R. 602.
1° [1922] 2 A.C. 1.
11 The underlining is mine.
get away from their normal lives, e.g., summer
cottagers, hunters, fishermen, etc., and
(b) in ordinary parlance, one thinks of a "visi-
tor" or a "visiteur" to a country as including
any person coming for a temporary stay.
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.