A-93-79
Balbir Singh Nagra (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
Court of Appeal, Pratte and Heald JJ. and Smith
D.J.—Vancouver, September 12; Ottawa, October
9, 1979.
Judicial review — Immigration — Exclusion order made
against applicant on ground that he sought admission as an
immigrant without first obtaining a visa before appearing at a
port of entry — Applicant had been admitted to Canada as a
visitor, and through extensions of that status, had lived in
Canada for three years — Application for admission as an
immigrant, sponsored by his "wife", unable to be processed,
resulting in the s. 20 report and the inquiry that culminated in
the exclusion order — Whether or not s. 20 report, inquiry and
exclusion order had been made on false assumption that
applicant was seeking to come into Canada as an immigrant
since applicant had lived continuously in Canada for three
years — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s.
28 — Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 9(1), 20
— Immigration Act, R.S.C. 1952, c. 325, s. 7(3) ZR.S.C. 1970,
c. 1-2, s. 7(311 — Interpretation Act, R.S.C. 1970, c. 1-23,
s. 35.
APPLICATION for judicial review.
COUNSEL:
R. Rothe for applicant.
G. Carruthers for respondent.
SOLICITORS:
Reiner O. Rothe, Vancouver, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
PRATTE J.: This section 28 application is direct
ed against an exclusion order made against the
applicant on January 30, 1979, on the ground that
he was a person seeking admission to Canada as an
immigrant who, contrary to the requirements of
subsection 9(1) of the Immigration Act, 1976,
S.C. 1976-77, c. 52, had failed to obtain a visa
before he appeared at a port of entry.
The applicant is a citizen of India who came to
Canada in April 1975. He was then admitted as a
visitor and was later granted several extensions of
his status, the last one of which expired on June
27, 1977, three days after he had married one
Patricia Colleen Howard, presumably a Canadian
citizen. On July 8, 1977, he went to an immigra
tion office and applied to be admitted to Canada
for permanent residence as the sponsored depend
ant of his wife. The applicant was then apparently
allowed to remain in the country while that
application was being processed. On February 8,
1978, an immigration officer wrote to the appli
cant's wife in the following terms:
Dear Mrs. Nagra:
This letter has reference to the sponsorship application which
you submitted at this office on 8 July 1977, for your husband,
Balbir Singh Nagra.
It has been determined that your first marriage to Mr. Jora
Singh Gill which took place on 17 May 1970 in Abbotsford,
B.C., has not been dissolved. Therefore, you are not eligible to
submit an application under section 31(1)(a) of the Immigra
tion Regulations for Balbir Singh Nagra consequently we are
unable to process your application.
The applicant denied, at his inquiry, having ever
been made aware of the contents of that letter. He
admitted, however, that he had been notified, at an
undetermined date, that he would have to leave the
country by the 19th of May, 1978. He did not
comply with this notice and, on August 1, 1978, an
officer of the Department of Immigration in
Ottawa wrote the following letter to the appli
cant's solicitor:
Dear Mr. Rothe:
I refer to your letter of June 12, 1978 concerning Mr. Balbir
Singh Nagra, who wishes to remain in Canada permanently.
As you are aware, there is no provision in law which allows
our officials to process applications by individuals in Canada
for permanent admission. Nevertheless, the Department has
carefully reviewed his case in order to ascertain if there are
sufficient grounds to warrant consideration of his case as an
exception to the Immigration Regulations; however, it has been
decided that there are not sufficient grounds. As a result, if he
does not leave Canada as requested he will be asked to appear
before an adjudicator who will assess his right to remain here.
At such a hearing he is entitled to be assisted by council and
introduce evidence not previously submitted or not previously
taken into account by the examining officer.
In view of your interest in this particular case, I regret that I
cannot forward a more favourable reply.
The applicant was still in the country on Janu-
ary 9, 1979. He was then examined by an immi
gration officer as a person seeking admission to
Canada as an immigrant. The immigration officer
formed the view that the applicant could not be
admitted and reported him pursuant to section 20
of the Immigration Act, 1976. That report led to
the inquiry which culminated in the exclusion
order against which this section 28 application is
directed.
The main argument made on behalf of the
applicant was that the section 20 report, the inqui
ry and the exclusion order had all been made on a
false assumption, namely, that he was, on January
9, 1979, a person seeking to come into Canada as
an immigrant. His counsel argued that he was not
such a person since, at that time, he was already in
Canada where he had lived continuously for more
than three years.
During his argument, counsel for the respondent
conceded, as I understood him,
(a) that the section 20 report, the inquiry and
the exclusion order were invalid unless, at the
time of the section 20 report, the applicant
either was in fact, or was deemed by law to be, a
person seeking to come into Canada; and
(b) that, at that time, the applicant was not in
fact a person seeking to come into Canada.
Counsel submitted, however, that the applicant
was, at the relevant time, deemed by law to be
seeking admission into Canada and that he could,
for that reason, be reported under section 20.
Counsel said that the applicant had, when he had
applied for permanent residence, on July 8, 1977,
reported pursuant to section 7(3) of the Immigra
tion Act of 1952 [R.S.C. 1970, c. I-2] and had
then become, by virtue of that provision, a person
"deemed to be a person seeking admission to
Canada."' True, that provision had already been
repealed at the time of the applicant's examination
by the immigration officer who reported him
under section 20 on January 9, 1979, 2 however
counsel argued that, in spite of that repeal, the
applicant continued, by virtue of section 35 of the
Interpretation Act, R.S.C. 1970, c. 1-23, 3 to be a
person deemed to be seeking admission to Canada.
I cannot help but observe that it is at least
doubtful that the applicant ever reported pursuant
to section 7(3) of the Act of 1952 when he applied
for permanent residence on July 8, 1977. At that
time, ten days had elapsed since the expiry of the
applicant's status and, perhaps for that reason, the
immigration authorities do not seem (according to
' Section 7(3) of the Immigration Act of 1952 reads as
follows:
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 The Immigration Act of 1952 was repealed on April 10,
1978.
3 Section 35 of the Interpretation Act reads in part as
follows:
35. Where an enactment is repealed in whole or in part,
the repeal does not
(b) affect the previous operation of the enactment so
repealed or anything duly done or suffered thereunder;
(c) affect any right, privilege, obligation or liability
acquired, accrued, accruing or incurred under the enact
ment so repealed;
(e) affect any investigation, legal proceeding or remedy in
respect of any such right, privilege, obligation, liability,
penalty, forfeiture or punishment
and an investigation, legal proceeding or remedy as described
in paragraph (e) may be instituted, continued or enforced,
and the penalty, forfeiture or punishment may be imposed as
if the enactment had not been so repealed.
the record) to have treated him as having reported
under section 7(3) until it was decided to examine
him on January 9, 1979. However that may be,
assuming that the applicant, by virtue of section
7(3) of the Act of 1952, was deemed to be, on July
7, 1977, a person seeking admission to Canada, I
am of the opinion that he did not continue, after
the repeal of that section on April 10, 1978, to be
deemed to be such a person. In my view, section 35
of the Interpretation Act has no application here
because, under section 7(3), no right or privilege
ever accrued to the applicant. It is common ground
that the applicant never had the right to come into
the country as an immigrant. The respondent's
contention is that the applicant had nevertheless
the right to be considered as an applicant. That
so-called right is not, in my view, a right within the
meaning of section 35 of the Interpretation Act.
Section 7(3) of the Immigration Act of 1952 did
not create any right in favour of the applicant; it
merely deemed him, for the purpose of the Act, to
be different from what he really was. That section
having been repealed, the applicant simply
remains what he really is and this, in my view,
does not involve the abridgment or the impairment
of any of his rights.
For these reasons, I would grant the application
and set aside the exclusion order made against the
applicant.
* * *
HEALD J.: I agree.
* * *
SMITH D.J.: I concur in the foregoing reasons
for judgment.
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.