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A-519-80
Johann Josef Taubler (Applicant)
v.
Minister o% Employment and Immigration (Respondent)
Court of Appeal, Thurlow C.J., Ryan J. and MacKay D.J.—Toronto, September 16, 17 and 19, 1980.
Judicial review — Immigration — Deportation order — Whether Adjudicator has authority to adjourn and subse quently reconvene and complete the inquiry after receiving further evidence — Whether Adjudicator's order based on applicant's conviction in another country was correct — Whether mens rea, an element of the offence of misappropria tion under Canadian law, is presumed to be an element of offence of misappropriation under foreign law — Whether Adjudicator's inference that applicant's visitor status had expired was well-founded — Application dismissed — Feder al Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
APPLICATION for judicial review. COUNSEL:
Donald M. Greenbaum, Q.C. for applicant. L. Lehmann for respondent.
SOLICITORS:
Moses, Spring, Greenbaum & Pang, Toronto, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment rendered in English by
THE COURT: This is an application under sec tion 28 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, to review and set aside a deportation order made against the applicant.
The applicant's first submission was that the Adjudicator lost jurisdiction and became functus officio when, after hearing the evidence offered by the case presenting officer and the applicant and after hearing argument, he adjourned the inquiry so that the subject matters of the report could be further investigated and further evidence pro duced. We are of the opinion that it lay within the authority of the Adjudicator under his mandate to
hold an inquiry to adjourn as he did and subse quently to reconvene and complete the inquiry after receiving further evidence on the subject matters of the inquiry.
We are also of the opinion that there was evi dence to support the Adjudicator's conclusion that the applicant, by reason of his conviction in Austria in 1969 of misappropriation of money and vehicles to the value of 115,000 Austrian schil- lings, was subject to deportation as a person who had been convicted of an offence that if committed in Canada would constitute an offence, viz., theft of property of a value exceeding $200, that might be punishable under the Criminal Code of Canada, R.S.C. 1970, c. C-34, and for which a maximum penalty of ten years or more might be imposed. The submission that there was no evi dence of Austrian law upon which it might be ascertained whether the convictions under that law involved a finding of mens rea, which is an element of theft under Canadian law, is in our view not sustainable. In our opinion in the absence of evi dence to the contrary it is to be presumed that the Austrian law as to misappropriation involves the element of mens rea and that a conviction under that law indicates that a finding of guilty intent was made.
We are further of the view that it was open to the Adjudicator on the evidence before him, after rejecting as unworthy of belief the evidence of the applicant and his wife as to his visits to the United States, to infer from the fact that the applicant had no visa for travel to the United States that the applicant remained in Canada after the period for which he had been authorized to remain in Canada as a visitor had expired.
The application therefore fails and is dismissed.
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