A-277-77
Marie Antoinette Vincenti (Applicant)
v.
Minister of Manpower and Immigration and L. G.
Rivard (Respondents)
and
Deputy Attorney General of Canada (Mis -en-
cause)
Court of Appeal, Jackett C.J., Pratte and Le Dain
JJ.—Montreal, May 31; Ottawa, September 6,
1977.
Judicial review — Immigration — Establishment of
Canadian domicile — Extended period abroad — Five-year
period not clearly established — Special inquiry on return —
Ordered deported — Immigration Act, R.S.C. 1970, c. 1-2, ss.
2, 3(2), 4(1),(3) and 18(1)(e)(vi),(2) — Federal Court Act, s. 28.
The applicant, a citizen of France, was admitted to Canada
in 1967 as a landed immigrant,- and returned to France in 1972
to further her education. The evidence was not clear whether
she had been in Canada five years during this period 1967-
1972. A Special Inquiry Officer, after conducting a special
inquiry in 1976, found that she had not established Canadian
domicile and that she voluntarily left Canada for an extended
period abroad. He ordered her deported.
Held, the application is allowed. The Special Inquiry Officer
should have first asked himself: did the applicant acquire
Canadian domicile by having in Canada, for at least five years
after she was landed in Canada, her place of domicile, i.e., (a)
the place in which she had her home, (b) the place in which she
resided, (c) the place to which she returns as her permanent
abode? and, if the answer to that question was in the affirma
tive, should have asked himself: did the applicant lose Canadian
domicile by "voluntarily residing out of Canada with the
intention of making her permanent home out of Canada and
not for a mere special or temporary purpose"?
APPLICATION for judicial review.
COUNSEL:
J. G. Maranda for applicant.
P. Gariépy for respondents and mis -en-cause.
SOLICITORS:
J. G. Maranda, Montreal, for applicant.
Deputy Attorney General of Canada for
respondents and mis -en-cause.
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 section 28 application came on for hearing
at Montreal on May 31, 1977, at the same time as
a companion application by the applicant's hus
band against a deportation order made against
him (see page 45). At that time, an order was
made reading as follows:
[TRANSLATION] The parties agree that instead of being
heard orally, they will have the right to file a written argument;
the applicant will havè until June 16 to file her memorandum;
the respondents will have until July 1 to file theirs; the appli
cant will then be able to reply to the respondents' memorandum
before July 10; and the matter will then be considered.
The applicant and the respondents have filed
memoranda as authorized.
The facts as revealed by the evidence before the
Special Inquiry Officer in this case are very simi
lar to the facts as revealed by the evidence given
before the Special Inquiry Officer concerning the
husband. There are two main differences that
strike me on a reading of the two proceedings, viz:
(a) unlike the husband, this applicant does not
appear to have had occasion to make temporary
trips outside Canada between her arrival as an
immigrant in 1967 and her return to France in
1972 for further studies, and
(b) it is not clear on the evidence in this case
that the applicant had been in Canada five years
before her return to France in 1972.
Furthermore, in this case, the Special Inquiry
Officer made the deportation order under attack
reciting, inter alia,
[TRANSLATION] (2) you are not a person having acquired
Canadian domicile;
without any supporting finding of fact except the
finding that
[TRANSLATION] Mrs. Vincenti left Canada in 1972 for a
prolonged voluntary stay outside Canada.
As indicated in my reasons of even date in
connection with her husband's application, in my
view, the Special Inquiry Officer should have first
asked himself: did the applicant acquire Canadian
domicile by having in Canada, for at least five
years after she was landed in Canada, her place of
domicile, i.e.,
(a) the place in which she had her home,
(b) the place in which she resided, or
(c) the place to which she returns as her perma
nent abode?
and, if the answer to that question was in the
affirmative, should have asked himself: did the
applicant lose Canadian domicile by voluntarily
"residing" out of Canada "with the intention of
making ... [her] permanent home out of Canada
and not for a mere special or temporary purpose"?
He does not seem to have addressed himself to
either of these questions.'
In the circumstances, the facts as found by the
Special Inquiry Officer do not, in my view, support
the deportation order made against the applicant
and it should be set aside.
* * *
PRATTE J.: I agree.
* * *
LE DAIN J.: I agree.
' With respect to the first question, it should be noted that,
even if the return to France in 1972 was inside the five-year
period, the question would still arise as to whether it broke the
continuity of the applicant's relationship with Canada that
made it her "place of domicile".
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.