A-68-78
Margaret Allen (Applicant)
v.
Minister of Manpower and Immigration
(Respondent)
Court of Appeal, Heald and Urie JJ. and Maguire
D.J.—Calgary, June 19; Ottawa, July 11, 1978.
Judicial review — Immigration — Deportation — Applicant
became landed immigrant in 1965, intending to establish her
self permanently in Canada, but was included in deportation
order issued against her husband — On return to Canada,
applicant became subject to deportation order because of not
being in possession of immigrant visa — Interpretation by
Special Inquiry Officer that s. 4(7) (concerning loss of domicile
on deportation order) was applicable against other persons
included in that deportation order — Whether or not Special
Inquiry Officer's interpretation of s. 4(7) correct — If incor
rect, domicile established by applicant and second deportation
order inapplicable — Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, s. 28 — Immigration Act, R.S.C. 1952, c. 325,
ss. 4(7), 37(1) — Immigration Act, R.S.C. 1970, c. I-2, s.
18(1)(e)(ix) — Immigration Regulations, Part I, SOR/62-36
as amended by SOR/72-443, s. 28(1).
APPLICATION for judicial review.
COUNSEL:
Doug Graham for applicant.
R. Neil Dunne for respondent.
SOLICITORS:
Macleod Dixon, Calgary, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
HEALD J.: In my view, the Special Inquiry
Officer erred in law in his interpretation and
application of the provisions of section 4(7) of the
Immigration Act, R.S.C. 1952, c. 325 1 , to the
facts of this case. In this case, the applicant was
not the subject of a deportation order issued
against her but was, rather, included in a deporta
tion order made against her husband in 1967
pursuant to the provisions of section 37(1) 2 of the
Act. The Special Inquiry Officer interpreted the
provisions of section 4(7) (supra) so as to apply
not only to the person against whom the deporta
tion order is made but to all other persons included
in that deportation order. Reading the section in
that way on the facts of this case makes the
difference between this applicant acquiring
Canadian domicile and not acquiring Canadian
domicile. This applicant along with her husband
became landed immigrants in Canada in 1965.
Her husband was the subject of a deportation
order in 1967. This applicant, pursuant to section
34(1) was included in that order and was deported
back to the United Kingdom along with her hus
band. They remained in the United Kingdom until
1977 when they returned to Canada. The husband
became the subject of a second deportation order
pursuant to the provisions of section 18(1) (e)(ix) 3 .
This applicant was also the subject of a separate
deportation order because she was not in posses
sion of a valid and subsisting immigrant visa con
trary to section 28 (1) of the Regulations. In this
case, the applicant's evidence is clear, unequivocal
and uncontradicted that after coming to Canada in
1965 she had every intention to establish herself
permanently here; that she only left in 1967
Section 4(7) of the Immigration Act, 1952, as amended
reads as follows:
4. ...
(7) Any period during which a person has his place of
domicile in Canada that is less than the period required for
the acquisition of Canadian domicile and that might other
wise be counted by a person towards the acquisition of
Canadian domicile is lost upon the making of a deportation
order against him, unless an appeal against such order is
allowed.
2 Section 37(1) of the Immigration Act, 1952, as it was in
1967 reads as follows:
37. (1) Where a deportation order is made against the
head of a family, all dependent members of the family may
be included in such order and deported under it.
3 Section 18(1)(e)(ix) [R.S.C. 1970, c. I-2] reads as follows:
18. (1) ...
(ix) returns to or remains in Canada contrary to this
Act after a deportation order has been made against him
or otherwise, or
because she was forced to leave due to her hus
band's deportation; that she remained away from
Canada only because of the deportation order
against her husband; that she never abandoned her
intention to make Canada her permanent resi
dence; and that when she returned in 1977, she did
so fully intending to resume her permanent resi
dence in Canada. Accordingly, if the provisions of
section 4(7) (supra) do not apply to the applicant,
it is clear that she has acquired Canadian domicile
and as a result she could not be deported for not
being in possession of a valid and subsisting immi
grant visa contrary to section 28(1) of the Immi
gration Regulations, SOR/62-36 as amended by
SOR/72-443 4 , since regulation 28(1) does not
apply to landed immigrants.
At the hearing of this section 28 application
before us, counsel for the Minister conceded that
the Special Inquiry Officer was in error in holding
that section 4(7) applied to this applicant but
submitted nevertheless, that subject deportation
order against this applicant is valid. His submis
sion, as I understand it, is based on a consideration
of a number of definitions appearing in the Immi
gration Act, 1952. Counsel first refers to the defi
nition of "landing" as contained in section 2 of the
Act where that expression is defined as meaning:
"the lawful admission of an immigrant to Canada
for permanent residence". He then turns to the
definition of "permanent resident" as contained in
section 2(cff) of the Immigration Regulations,
Part I, which reads as follows: "(cff) `permanent
resident' means an immigrant who has been grant
ed lawful admission for permanent residence under
the Act and has maintained his place of domicile
in Canada since that admission;". Counsel then
^ Regulation 28(1) reads as follows:
28. (1) Every immigrant who seeks to land in Canada,
including an immigrant who reports pursuant to subsection
(3) of section 7 of the Act, shall be in possession of a valid
and subsisting immigrant visa issued to him by a visa officer
and bearing a serial number which has been recorded by the
officer in a register prescribed by the Minister for that
purpose, and unless he is in possession of such visa, he shall
not be granted landing in Canada.
refers to the definition of "place of domicile" in
section 2 of the Act and reading as follows:
" `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;". It is the
submission of counsel for the Minister that, on the
basis of these definitions, this applicant has lost
her status as a landed immigrant because her
"permanent abode" from 1967 to 1977 was in the
United Kingdom; that it makes no difference as to
the reason why she left Canada, the fact remains
that she did leave and remained out of Canada for
some 10 years which resulted in her losing her
landed status in Canada. In my view, on the
undisputed facts in this case, that submission
cannot prevail. Such a position fails to take into
account the concluding portion of the definition of
"place of domicile" quoted supra: "... does not
mean a place in which he stays for a mere special
or temporary purpose;" nor does it take into
account the provisions of section 4(3) of the Act
which provide that: "(3) Canadian domicile is lost
by a person voluntarily residing out of Canada
with the intention of making his permanent home
out of Canada and not for a mere special or
temporary purpose ...". [Emphasis added.] This
applicant was not voluntarily residing out of
Canada. She was forced to live out of Canada and
her absence from Canada was due to a temporary
circumstance beyond her control. It follows, in my
view, that such temporary absence did not result in
the loss of her status as a landed immigrant.
For these reasons, I would allow the section 28
application and quash the deportation order made
against the applicant.
* * *
URIE J.: I agree.
* * *
MAGUIRE D.J.: I concur.
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.