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A-258-77
Norbert Vincenti (Applicant) v.
Minister of Manpower and Immigration and Gaston Perron (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 Trips abroad during five-year period — Extended period abroad after five-year period — Special inquiry on return — Ordered deported — Immigration Act, R.S.C. 1970, c. I-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 as a landed immigrant in October, 1967, and during the next five years made three trips abroad, returning from the last one in April, 1972. In order to further his wife's education, the applicant and his family returned to France in November, 1972. On his return to Canada in 1976, the applicant presented the immigration officer with a new French passport that had not been stamped with an immigration visa, as the passport originally stamped with the visa had expired. The immigration officer treated him as a non-immigrant. A Special Inquiry Officer, after a hearing, concluded that the applicant had not met the requirements to establish Canadian domicile and ordered him deported. The applicant applied for judicial review.
Held, the application is allowed. The applicant took up residence in Canada in October 1967 and left Canada with his family at the end of 1972. During that time, he would seem to have had a place of domicile in Canada unless his three trips out of the country, or any of them, broke the continuity of his relationship with Canada that made it his place of "domicile". The Special Inquiry Officer did not address his mind to the question whether the trips in question were mere temporary absences from the applicant's home in Canada or whether the applicant had, while on such trips, ceased to reside in Canada. The Special Inquiry Officer erred in law in his finding on the question because he did not address his mind to the right question and the deportation order must be set aside.
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 was heard at Mont- real on May 31, 1977, and judgment was reserved with leave to the parties to file written argument within specified times. Arguments on behalf of the applicant and the respondent and mis -en-cause have been filed and I have had an opportunity to consider them. The time allowed to the applicant for filing a reply has expired.
The deportation order was made following a special inquiry held as a result of a report made under section 18 of the Immigration Act, the relevant part of which reads as follows:
[TRANSLATION] Under subparagraph 18(1)(e)(vi) of the Immigration Act, I must report that
VINCENT!, Norbert
is a person, other than a Canadian citizen or a person with Canadian domicile, who entered Canada as a non-immigrant and remains therein after ceasing to be in the particular class in which he was admitted as a non-immigrant, in that
Mr. Vincenti arrived in Canada on September 24, 1976 at Mirabel, where he was admitted as a visitor, 7(1)(c), until November 8, 1976. On October 29, 1976, during an inter view conducted at the Canada Immigration Centre in Lon- gueuil, Mr. Vincenti admitted that he had been working as a car salesman for Renault Centre-Ville since about a week after he arrived in Canada without the written authorization of an immigration officer. Mr. Vincenti therefore ceased to belong to the particular class in which he was admitted as a non-immigrant.
The deportation order, which was made on April 21, 1977, reads, in part:
[TRANSLATION] (1) you are not a Canadian citizen;
(2) you are not a person having acquired Canadian domicile;
(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 there after ceasing to be in the particu lar class in which you were admitted as a non-immigrant;
(4) you are subject to deportation under subsection 18(2) of the Immigration Act.
I hereby order that you be detained and deported.
The only serious question as to the validity of the deportation order that arose out of the oral argument, and the question that gave rise to the Court's decision to reserve judgment, was whether the Special Inquiry Officer had erred in law in finding that the applicant was a "person, other than ... a person with Canadian domicile", which finding was a condition precedent to the validity of the deportation order, which was based on section 18(1)(e)(vi) of the Immigration Act, which reads:
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,
and section 18(2), which reads:
(2) Every person who is found upon an inquiry duly held by a Special Inquiry Officer to be a person described in subsection (1) is subject to deportation.
It is common ground that, if the Special Inquiry Officer erred in law in finding that the applicant was not a person who had acquired Canadian domicile, the deportation order must be set aside' and that, if such finding was not the result of an error in law, the section 28 application must be dismissed.
Before examining what was brought out by the inquiry, it is expedient to look at the relevant provisions of the Act.
A preliminary comment based on a reading of the Act is that, as this was a proceeding under section 18 to deport someone who was in Canada, the burden of proof imposed by section 26(4) on a
' The formal finding was that the applicant was not a person "ayant acquis" Canadian domicile rather than a finding that he was not a person "ayant" Canadian domicile.
"person seeking to come into Canada" has no application; and it follows that, if what is found in the inquiry proceedings does not provide an ade quate basis to support the deportation order, the deportation order is bad and must be set aside.
Turning to the provisions relating to the mean ing of "Canadian domicile" in section 18(1)(e), in so far as relevant, they read as follows:
2. In this Act
"Canadian domicile" means Canadian domicile acquired and held in accordance with section 4;
"immigrant" means a person who seeks admission to Canada
for pc, manent residence;
"landing" means the lawful admission of an immigrant to Canada for permanent residence;
"place of domicile" means the place in which a person has his home or in which he resides or to which he returns as his place of permanent abode and does not mean a place in which he stays for a mere special or temporary purpose;
3. (2) Subject to subsection (3), a person who is not a Canadian citizen but has acquired and has not lost Canadian domicile shall be allowed to come into Canada.
4. (1) Canadian domicile is acquired for the purposes of this Act by a person having his place of domicile for at least five years in Canada after having been landed in Canada.
(3) Canadian domicile is lost by a person voluntarily resid ing out of Canada with the intention of making his permanent home out of Canada and not for a mere special or temporary purpose, but in no case shall residence out of Canada for any of the following objects cause loss of Canadian domicile, namely,
(a) as a representative or employee of a firm, business, company or organization, religious or otherwise, established in Canada;
(b) in the public service of Canada or of a province thereof; or
(c) as the spouse or the child for the purpose of being with a spouse or parent residing out of Canada for any of the objects or causes specified in paragraph (a) or (b).
The facts revealed by the Special Inquiry that do not seem to be in dispute are:
(1) the applicant is a citizen of France;
-(2) the applicant was admitted to Canada as an "immigrant" on October 19, 1967—i.e., he was on that day "landed" in Canada;
(3) in 1968 or 1969, in 1970 and 1971, the applicant was out of Canada for vacation, the illness or death of a grandfather and the illness or death of his father-in-law, respectively;
(4) having returned from the last of these three trips in April, 1972, the applicant and his family went back to France in November, 1972, according to him, for the further education of his wife;
(5) on September 24, 1976, the applicant returned to Canada and his family returned a month later.
It also seems to be clear that, during the period of his stay in France, from 1972 to 1976, the appli cant had to obtain a new French passport as a result of which he gave up his original passport with the Canadian immigrant visa in it and received a new passport that did not show his immigrant visa; and that, as a result, the immigra tion officer to whom he reported on his return to Canada in 1976 treated him as a non-immigrant and so showed him by an appropriate stamp in his new passport.
For present purposes, with one exception, I do not think it is necessary to refer to the other evidence given at the Special Inquiry except as it is mentioned in the summing up of the Special Inqui ry Officer, which reads as follows:
[TRANSLATION] Mr. Vincenti, after reviewing your testimony of April 12 and that of this morning, and considering the testimony of Mr. Bourque on the circumstances in which you went to meet him, and also concerning your status in Canada, I must recognize, it is a fact that you were admitted to Canada as an immigrant in October 1967. On the other hand, you mentioned on April 12 that you left Canada at the end of 1972, whereas it came out this morning that you left in 1970, you came back, you left again in 1971, you came back some time in 1972, and returned to France again that year and did not come back until September 1976. I must recognize that although you were admitted to Canada as an immigrant, the period of time between your landing as an immigrant in 1967 and your departure from Canada is not sufficient for you to have acquired Canadian domicile, and that when you left Canada having left your job in Canada, having no bank account in Canada, having left the few personal effects you had with your sister, contradicting yourself in your testimony, saying at times that you left them with her for her to keep in storage, and at
other times that you gave them to her—moreover, I must recognize that contrary to the submissions of your brilliant counsel, in your case section 3(2) of the Act did not apply when you returned to Canada, and that under section 4(3), having resided voluntarily outside Canada you lost your immigrant status in Canada, and that when you returned to Canada in September 1976, having been admitted as a visitor, not correct ing the officer who admitted you when you arrived on this point, and having begun to work less than a week after your arrival in Canada, you thereby ceased to belong to the class of non-immigrant in which you were admitted to Canada. Conse quently, not under section 27(2) as your counsel pointed out, I must render the following decision.
The exception is that the applicant testified, in effect, that each time that he left Canada, after his admission as an immigrant, he left for some tem porary purpose and that he never had the intention of making his permanent home outside Canada.
There would seem to be no doubt that, in so far as the general rules of private international law are concerned, the applicant became domiciled in Canada when he took up permanent residence after he was "landed"—i.e., was admitted lawfully "for permanent residence". Compare Osvath-Lat- koczy v. Osvath-Latkoczy 2 . For discussions of the general principles involved with reference to "dom- icile" in private international law, see also Taylor v. Taylor 3 , Stephens v. Falchi 4 and Trottier v. Rajotte 5 . While, generally speaking, the concept of domicile in private international law and "place of domicile" as used in section 4(1) of the Immi gration Act are much the same, there would seem to be important differences, e.g.:
(a) under the Immigration Act, a wife's "place of domicile" is not necessarily that of her hus band and that of a child is not necessarily that of his parents, and
(b) there would not seem to be any rule that, on abandonment of place of domicile of choice without acquiring another, the place of domicile of origin is re-acquired.
2 [1959] S.C.R. 751. [1930] S.C.R. 26. ° [1938] S.C.R. 354. 5 [1940] S.C.R. 203.
In other words, there would seem to be no reason for referring to the jurisprudence concerning the private international law concept of domicile for present purposes, although superficially, on the facts of the present case, the result would appear to be the same.
For present purposes, it would seem that, when determining whether or not a person has Canadian domicile for the purposes of the Immigration Act, there are two questions that may have to be con sidered, viz:
(a) Did the applicant acquire Canadian domi cile by having in Canada, for at least five years after he was landed in Canada, his place of domicile, i.e.,
(i) the place in which he had his home,
(ii) the place in which he resided, or
(iii) the place to which he returns as his permanent abode? 6
(b) If the answer to that question is in the affirmative, did the applicant lose Canadian domicile by voluntarily "residing" out of Canada "with the intention of making his per manent home out of Canada and not for a mere special or temporary purpose"?'
In his summary of the facts, the Special Inquiry Officer concludes that the period of time from the applicant's admission as immigrant to his depar ture from Canada was not sufficient to acquire Canadian domicile and that, by virtue of section 4(3), having resided voluntarily outside Canada, he had lost his status as an immigrant. He appears to have based his deportation order on the first of these two conclusions. (The second conclusion would seem to be a non-sequitur.)
Having regard to the evidence, as it seems to me, the conclusion that the applicant did not acquire Canadian domicile was reached by. the Special Inquiry Officer without addressing himself to the proper questions. It would seem clear that the applicant took up residence in Canada in Octo- ber 1967 and left Canada with his family at the end of 1972. During that time, he would seem to have had a place of domicile in Canada unless his three trips out of the country, or any of them,
6 Compare section 4(1) and the definition of "place of domi cile" in section 2.
7 Compare section 4(3).
broke the continuity of his relationship with Canada that made it his "place of domicile" 8 . I doubt whether, on the evidence that was before the Special Inquiry Officer, he could have so found. In any event, he did not address his mind to the question whether the trips in question were mere temporary absences from the applicant's home in Canada or whether the applicant had, while on such trips, ceased to reside in Canada. In my view, the Special Inquiry Officer erred in law in his finding on this question because he did not address his mind to the right question and the deportation order must, therefore, be set aside'.
In coming to this conclusion, I am expressing no opinion as to whether the applicant had acquired Canadian domicile and, if he had acquired Canadian domicile, whether he had lost it. I doubt whether there is sufficient evidence on the record that was made before the Special Inquiry Officer to reach a conclusion against the applicant on either question and, as already indicated, this is not a case in which the onus of proof was on the applicant. In other words, the evidence brought out on the Special Inquiry must be such as to support the deportation order.
In my view, for the above reasons the deporta tion order made against the applicant should be set aside.
i * *
PRATTE J.: I agree.
*
LE DAIN J.: I agree.
Compare, in respect of residence, which is one of the possible relationships contemplated by the section 2 definition of "place of domicile", Thomson v. M.N.R. [1946] S.C.R. 209, Beament v. M.N.R. [1952] 2 S.C.R. 486, and M.N.R. v. Stickel [1975] 2 S.C.R. 233, at 234-5.
9 As it seems to me, he should have asked himself whether, on the balance of probability, there was evidence which showed that, notwithstanding the applicant's protestations to the con trary, the applicant had, within the five-year period, ceased to have his home or residence in Canada.
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