A-80-81
Tieng Nei Ng (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
Court of Appeal, Heald and Urie JJ. and Kelly
D.J.—Toronto, July 20 and 22, 1981.
Judicial review — Immigration — Application to set aside
deportation order — Applicant was convicted of theft of over
$200 — Deportation order was issued pursuant to subs. 32(6)
of Immigration Act, 1976 because applicant was a person
described in paras. 27(2)(a) and (d) of the Act — Issue of
deportation order is mandatory if applicant is found to be a
person described in para. 27(2)(a) by virtue of the fact that he
is a person described in para. 19(1)(c) and such a person is
specifically excluded from the benefits accruing to persons
within the purview of subs. 32(6) — No such exclusion from
the rights accruing under subs. 32(6) applies to persons
described in para. 27(2)(d) — Whether Adjudicator improper
ly declined to exercise her jurisdiction in failing to specify
which of the two paragraphs of s. 27 she relied on in making
the deportation order — Application allowed — Immigration
Act, 1976, S.C. 1976-77, c. 52, ss. 19(1)(c), 27(2)(a),(d), 32(6)
— Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
APPLICATION for judicial review.
COUNSEL:
Anne Barrett for applicant.
Graham Garton for respondent.
SOLICITORS:
Anne Barrett, Toronto, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
URIE J.: This is a section 28 application to
review and set aside a deportation order made by
an Adjudicator on February 12, 1981.
The only relevant facts are these. The applicant
entered Canada at Vancouver on January 9, 1974
as a student. He has had numerous extensions of
his visitor's status the last of which expires on
September 29, 1981. On November 12, 1980, fol
lowing a guilty plea, he was convicted of theft of a
cassette tape recorder having a value of over $200.
As a result, an inquiry was convened resulting in
the deportation order sought to be set aside, the
material portion of which order reads as follows:
On the basis of the evidence adduced at the inquiry held under
the provisions of the Immigration Act, 1976, I hereby order you
to be deported pursuant to
32(6)
of that Act because you are a person described in
paragraphs 27(2)(a) and 27(2)(d) of the Immigration Act,
1976.
You are a person in Canada other than a Canadian citizen or a
permanent resident who, if you were applying for entry, would
not be granted entry by reason of being a member of the
inadmissible class described in paragraph 19(1)(c) of the Act,
in that you have been convicted of an offence that may be
punishable under an Act of Parliament and for which a max
imum term of imprisonment of ten years or more may be
imposed, namely "theft over two hundred dollars" on Novem-
ber 12, 1980, in Scarborough, Ontario; and who has been
convicted of an offence under the Criminal Code, namely
"theft over two hundred dollars" on November 12, 1980, in
Scarborough, Ontario.
Paragraphs 27(2)(a), 27(2)(d) and paragraph
19(1)(c) of the Immigration Act, 1976, S.C. 1976-
77, c. 52, read as follows:
27....
(2) Where an immigration officer or peace officer has in his
possession information indicating that a person in Canada,
other than a Canadian citizen or a permanent resident, is a
person who
(a) if he were applying for entry, would not or might not be
granted entry by reason of his being a member of an
inadmissible class other than an inadmissible class described
in paragraph 19(1)(h) or 19(2)(c),
(d) has been convicted of an offence under the Criminal
Code or of an offence that may be punishable by way of
indictment under any Act of Parliament other than the
Criminal Code or this Act,
19. (1) No person shall be granted admission if he is a
member of any of the following classes:
(c) persons who have been convicted of an offence that, if
committed in Canada, constitutes or, if committed outside
Canada, would constitute an offence that may be punishable
under any Act of Parliament and for which a maximum term
of imprisonment of ten years or more may be imposed,
except persons who have satisfied the Governor in Council
that they have rehabilitated themselves and that at least five
years have elapsed since the termination of the sentence
imposed for the offence;
It was argued that the Adjudicator in failing to
specify which of the two paragraphs of section 27
she relied on in making the deportation order
improperly declined to exercise her jurisdiction.
The importance of making such a specification
arises by virtue of subsection 32(6) reading as
follows:
32....
(6) Where an adjudicator decides that a person who is the
subject of an inquiry is a person described in subsection 27(2),
he shall, subject to subsections 45(1) and 47(3), make a
deportation order against the person unless, in the case of a
person other than a person described in paragraph 19(1)(c),
(d), (e), (f) or (g) or 27(2)(c), (h) or (i), he is satisfied that
(a) having regard to all the circumstances of the case, a
deportation order ought not to be made against the person,
and
(b) the person will leave Canada on or before a date specified
by the adjudicator,
in which case he shall issue a departure notice to the person
specifying therein the date on or before which the person is
required to leave Canada.
It will be seen that if an applicant for entry is
found to be a person described in paragraph
27(2)(a) the making of a deportation order is
mandatory by virtue of the fact that he is a person
described in paragraph 19(1)(c) of the Act and
such a person is specifically excluded from the
benefits accruing to persons within the purview of
subsection 32(6). On the other hand no such exclu
sion from the rights accruing under subsection
32(6) applies to persons described in paragraph
27(2)(d).
Counsel for the applicant argued both before the
Adjudicator and this Court that the Direction for
the Inquiry from the Senior Immigration Officer
referred to the section 27 report as stating that the
applicant was a person described in paragraphs
27(2)(a) and (d) of the Act which had the effect
of giving to the Adjudicator a choice as to which
section, if either, was applicable in the circum
stances disclosed at the Inquiry. In her submission,
the Adjudicator could not find that both applied
because the applicant, depending on the facts, fell
within the contemplation of either of the para
graphs or perhaps, neither of them.
In my view, her objections to the manner in
which the deportation order was framed are valid.
It is further my opinion that on the facts of this
case it is unnecessary to decide in what circum
stances paragraph 27(2)(a) applies and in what
circumstances paragraph 27(2)(d) applies. Suffice
it to say that the Adjudicator having found, as
previously observed, that the applicant was a
person described in both paragraphs, took the
position that by virtue of the exclusion of persons
falling within paragraph 19(1) (c) from the ben
efits accruing under subsection 32(6), it was man
datory for her to issue a deportation order and
thus she did not consider applying the provisions of
that subsection. In this I think she erred for two
reasons:
1. One reason is illustrated in the following
example as one of several possibilities under
subsection 27(2). A person who has been found
to have overstayed his visitor's visa and to have
accepted unauthorized employment, is in breach
of two different paragraphs of subsection 27(2).
Those breaches arise out of two quite distinct
and different sets of circumstances. Thus a
deportation order quite properly could be made
in respect of the two breaches of the Act. In this
case, on the other hand, there has been only one
circumstance, namely, a conviction under the
Criminal Code of the applicant while in
Canada. On the assumption that Parliament
could not have intended that more than one
paragraph in one subsection would apply to one
circumstance, it seems to me, the Adjudicator is
required_ to decide, on the facts elicited at the
Inquiry, of which paragraph of subsection 27(2)
the applicant has been in breach. Whether the
applicant is entitled to seek the issuance of a
departure notice pursuant to subsection 32(6)
will depend on that decision.
2. The second reason is that having decided that
both paragraphs applied one of which, viz para
graph 27(2)(d), fell within the ambit of subsec
tion 32(6), she was, in my view, obliged to
comply therewith and thus to consider the ques
tion of whether or not a departure notice should
issue rather than a deportation order. To find
that a departure notice should issue would be an
exercise in futility in light of the mandatory
deportation order required by paragraph
27(2)(a) which she found also to apply to the
applicant. Such a result graphically illustrates
the necessity for the Adjudicator determining
the paragraph applicable on the facts of the
case. To permit an order rendering one of the
rights to which the applicant is entitled mean
ingless is not a construction which, in my view,
should be permitted to prevail.
For all of the above reasons I would set aside the
deportation order and refer the matter back to the
Adjudicator to determine which paragraph of sub
section 27(2) is applicable in the circumstances
and to make such order as may be required follow
ing such determination.
* * *
HEALD J.: I agree.
* * *
KELLY D.J.: I agree.
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.