A-776-83
Frankie Hak Wo Lau (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
Court of Appeal, Heald, Mahoney and Marceau
JJ.—Vancouver, February 7 and 9, 1984.
Immigration — Deport/depart decision — Foreign student
overstaying and working though not authorized — Adjudica
tor ordering deportation rather than issuing departure notice
— Good reputation outweighed by deliberate and wilful con
duct — Deportation order set aside on s. 28 application —
Wilful nature of conduct insufficient in itself to justify depor
tation — All circumstances to be taken into account —
Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 27(2)(b),(e),
32(6) — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10,
s. 28.
Evidence — Immigration — Deport/depart hearing —
Adjudicator admitting into evidence memorandum containing
unsubstantiated, prejudicial allegations — Attaching "little
weight" thereto — Should have attached no weight — Depor
tation order set aside.
A citizen of Hong Kong came to Canada on a student visa in
December, 1976. It was valid until June 30, 1981 and employ
ment was not authorized. When the applicant completed his
university studies in the spring of 1981, he went to work for a
travel agency and maintained that employment until his arrest,
under section 104 of the Immigration Act, 1976 in May of
1983. The Adjudicator decided that a deportation order should
be issued. In so deciding, thé Adjudicator acknowledged that
the applicant had earned the respect of his business associates
but concluded that this did not excuse the applicant's "deliber-
ate and wilful" conduct and "exhibition of keeping bad faith
with the authorities" in seeking employment when not author
ized to do so. A further ground for deportation was that the
applicant had remained in Canada after he had ceased to be a
visitor, contrary to paragraph 27(2)(e) of the Act. A section 28
application was made to the Federal Court of Appeal. It was
not the Adjudicator's findings that the applicant was a member
of the prohibited classes described in paragraphs 27(2)(b) and
27(2)(e) of the Act that were attacked but rather the determi
nation to issue a deportation order instead of a departure
notice.
Held, the application should be allowed. The deportation
order is set aside and the matter referred back to the Adjudica
tor for a proper determination.
The Adjudicator's reasoning, that the applicant's "deliberate
and wilful" actions were sufficient to outweigh the favourable
circumstances, could not be accepted. In most cases, an appli
cant's conduct will have been deliberate in that he has con
sciously overstayed or accepted employment. If the wilful
nature of the conduct was in itself enough to entitle an
adjudicator to refuse to issue a departure notice, it would be
hard to imagine a case where a departure notice would issue.
By subsection 32(6), the Adjudicator was to take all of the
circumstances into account in reaching a deport/depart deci
sion. Parliament had given the Adjudicator a discretion to
exercise, breaches of the Act notwithstanding.
There was a further error by the Adjudicator which con
stituted a second reason why the deportation order had to be set
aside. There had been admitted into evidence a memorandum
containing allegations that the applicant had gotten into
Canada by false information. These unsubstantiated allegations
were prejudicial and while the Adjudicator indicated that he
attached very little weight to them, he should have given them
no weight at all.
COUNSEL:
R. Cantillon for applicant.
M. Taylor for respondent.
SOLICITORS:
Cantillon & McKenzie, Vancouver, for
applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
HEALD J.: This section 28 [of the Federal Court
Act, R.S.C. 1970 (2nd Supp.), c. 10] application
attacks a deportation order made against the
applicant based on the Adjudicator's findings first
ly, that the applicant was a person described in
paragraph 27(2)(e) of the Immigration Act, 1976
[S.C. 1976-77, c. 52], in that he had entered
Canada as a visitor and had remained therein after
he had ceased to be a visitor; and secondly, that
the applicant was also a person described in para
graph 27(2)(b) of the Act, in that he had engaged
in employment in Canada without a valid and
subsisting employment authorization, contrary to
subsection 18(1) of the Immigration Regulations,
1978 [SOR/78-172]. Counsel for the applicant at
the hearing before us (who was also the applicant's
counsel at the inquiry) did not, either at the inqui
ry or before us, seriously question the Adjudica
tor's findings that, on the evidence adduced, the
applicant was a member of the prohibited classes
described in paragraphs 27(2)(b) and 27(2)(e) of
the Act. His submissions were directed, rather, to
the Adjudicator's determination pursuant to sub
section 32(6) of the Act that a deportation order
instead of a departure notice should issue in this
case.
In addressing this issue, the Adjudicator set
forth properly, in my view, the governing criteria
as set out in subsection 32(6) of the Act. He said
that he was satisfied, on the evidence, that the
applicant would leave Canada on or before a date
specified by the Adjudicator in a departure notice.
Thereafter he considered whether the circum
stances of the case warranted a deportation order
or a departure notice. He then proceeded to review
those circumstances (case pages 34 and 35) which
may be summarized as follows. The applicant,
aged 30, is a citizen of Hong Kong. He came to
Canada on a student visa in December of 1976. He
was authorized to attend school in Canada as a
visiting student from the beginning of 1976 until
the end of June 1981. The conditions listed on the
student authorization read as follows:
1. Not authorized to work.
2. Must attend U of A only.
3. Valid until 30 June 81.
After a brief absence from Canada in the winter
of 1980-81, he came back into Canada in February
of 1981 on the strength of the valid and subsisting
student authorization described supra. After
obtaining his degree at the University of Alberta
in Edmonton in the spring of 1981, he commenced
work in June of 1981 in Vancouver as a tour
manager for a travel agency. He continued in this
employment until his arrest, pursuant to section
104 of the Immigration Act, 1976 in May of 1983.
At page 35 of the case, the Adjudicator said:
Apparently as a result of anonymous information, immigration
officers attended the business on May 4th of this year, ques
tioned you and eventually took you into custody. The evidence
indicates that you originally claimed to be a Canadian citizen
who had been landed in 1976. At the time of this interview you
were not aware that the person to whom you were speaking was
an immigration officer and have indicated in your evidence that
when he did identify himself as an immigration officer you
admitted that you had no right to be in Canada, and it's the
arrest that followed that sequence of events.
Now, as your Counsel pointed out, you have earned the person
al and professional respect of your business associates.
It is my perception that you have been forthright at this inquiry
and I would say that your demeanour reflects to your credit.
However, you were a student in Canada who chose at the end
of your studies not to leave Canada. I also note that even while
you were a student you did not comply with the law. You
testified that while attending the University of Alberta you
took part-time work as a waiter two days a week. Apparently,
this was without an employment authorization and done to
supplement the funds you were receiving from home.
The Immigration Regulations Part I, which were in effect when
you first became a student, required that you have sufficient
funds to maintain yourself during the course of your studies
and specifically prohibited students from taking employment
without the written permission of an immigration official. The
current legislation likewise considers that foreign students
would not be normally a part of the work force during the
course of their sojourn in Canada and likewise prescribes a
student from taking employment without authorization.
Though much has been said that reflects to your credit, because
of your conduct as a student and afterwards I find that I am
not satisfied that a deportation order ought not be made.
Your business reputation does not in my mind excuse you from
the consequences of your conduct which must be considered as
an exhibition of keeping bad faith with the authorities, both
while you were here legally as a student and in the almost
two-year period following. Nothing in the evidence discloses
that your decision to remain and work unlawfully in Canada
was anything other than a deliberate and wilful act on your
part.
For these reasons I have decided that I will make a deportation
order against you. After you have been removed from Canada,
you are prohibited from returning to Canada without first
obtaining the consent of the Minister.
My problem with the above-quoted passage
arises mainly from the penultimate paragraph
thereof which I consider to be the ratio upon
which the Adjudicator decided that a deportation
order rather than a departure notice should be
issued. What the Adjudicator seems to be saying
in that paragraph is that while much of the evi
dence adduced and many of the circumstances of
the case reflect credit upon the applicant, upon his
business reputation and upon his credibility, never
theless the fact that he overstayed in Canada
without authorization and accepted employment
without authorization is sufficient in itself to out
weigh and offset the circumstances favourable to
the applicant because both of those actions were
"deliberate and wilful" on the part of the appli
cant. I am unable to accept this reasoning. I would
think that in practically every case of this nature,
the actions of the applicant are deliberate and
wilful in the sense that the applicant consciously
overstays or consciously accepts employment with
out authorization. If these circumstances were, by
themselves, sufficient to entitle an adjudicator to
decline to issue a departure notice, notwithstand
ing the existence of many other circumstances
favourable to the applicant, then it would be dif
ficult to think of a case where a departure notice
would issue. In every case, the requirement for the
deport/depart decision under subsection 32(6) only
arises after an adjudicator has determined that an
applicant is a member of an inadmissible class.
Thus, a breach of the provisions of the Immigra
tion Act, 1976 is present in every case requiring a
subsection 32(6) determination. As noted supra, I
think in practically every case it could also be said
that the illegality arises because of a deliberate act
on the part of the applicant. However, subsection
(6) of section 32 enjoins the Adjudicator to have
regard to all the circumstances of the case in
making his deport/depart decision.
For the reasons detailed supra, I have concluded
that in this case, the Adjudicator has given undue
weight to the circumstance of a breach of provi
sions of the Immigration Act, 1976. If Parliament
had intended that circumstance to be the dominat
ing and determining circumstance, then there
would have been no point in conferring the subsec
tion 32(6) discretion on the Adjudicator. By so
conferring a discretion, Parliament must have
intended the Adjudicator to look at all the circum
stances and implied in that discretionary power is
the power to grant departure notices where all the
circumstances warrant it, notwithstanding that
breaches of the Immigration Act, 1976 have
occurred. Accordingly, I have concluded that the
Adjudicator misconceived the parameters of the
discretion conferred upon him pursuant to subsec
tion 32(6) of the Act, which misconception repre
sents an error in law reversible by the Court under
section 28 of the Federal Court Act.
Counsel for the applicant raised another objec
tion to the proceedings before the Adjudicator.
This objection relates to the admission by the
Adjudicator at the inquiry of Exhibit C4. That
exhibit purports to be a memorandum dated Janu-
ary 30, 1976, from one F. B. Webster, a special
inquiry officer at Vancouver, to the Commission
for Canada, Manpower and Immigration Section,
Hong Kong. The memorandum reads as follows:
LAU Hak Wo (Frankie)
1. Mr. Lau, born 4 October, 1953, was issued a non-immigrant
visa 7(1)(c) by your office on 10 December, 1975. He applied
for a change of status on 23 December 1975, to that of student
and then was subsequently arrested under the provisions of
subparagraph 18(1)(e)(viii) of the Immigration Act when it
was alleged that he came into Canada by reason of false or
misleading information given by himself. An Inquiry subse
quently opened and adjourned when counsel was requested and
we have now been advised that the subject departed for Hong
Kong via Japanese Airlines on 27 December, 1975. However,
we have been unable to verify his departure.
2. It would be appreciated, therefore, if you would endeavour to
ascertain Mr Lau's present whereabouts and his last address in
Hong Kong was 989 King's Road, Flat C2, 11/F Hong Kong.
Additionally we have been given to understand by Columbia
College that they have written him a letter of acceptance which
will be valid for presentation some time after May, 1976.
The transcript of the inquiry discloses that
Exhibit C4 was admitted over the objections of
counsel for the applicant. Counsel objected firstly
because the document was not under oath and
secondly, because he was deprived of the opportu
nity of cross-examining the author of the memo
randum on its contents. The Adjudicator admitted
the memorandum into evidence and reserved his
decision on the weight to be given to it. In his
reasons he decided that question as follows:
While the Minister's representative drew adverse inferences
from the circumstances of your December 1975 trip to Canada
and the subsequent change of your travel document, it seems to
me that your explanations are both plausible and credible. I
therefore attach very little weight to what happened in 1975 as
it affects my decision at this inquiry. [Emphasis added.]
In my view the Adjudicator should not have
given any weight whatsoever to the document. It
refers only to allegations that the applicant came
into Canada by reason of false or misleading infor
mation. There is nothing in the record to suggest
that the inquiry was proceeded with or a decision
reached by a special inquiry officer on the allega
tions. On this basis, the allegations are unproven
and unsubstantiated. As such they had a potential
for prejudice and should have been rejected sum
marily. Furthermore, they relate to alleged actions
by the applicant more than seven years prior to the
inquiry being conducted. I do not consider this
error by the Adjudicator to be as serious as the
initial error discussed supra in view of the
Adjudicator's remarks supra that he attached little
weight to what happened in 1975 in so far as it
affects the decision in subject inquiry. However,
because the case presenting officer placed some
emphasis on the importance of Exhibit C4 in, his
final submissions to the Adjudicator and because it
is not possible to conclude that the Adjudicator
was not, at least to some extent, influenced by this
evidence, I think this further error by the
Adjudicator is an additional reason why the depor
tation order in this case should not be allowed to
stand.
Accordingly, and for the foregoing reasons, I
have concluded that the section 28 application
should be allowed, the deportation order set aside,
and the matter referred back to an adjudicator to
make the determination required under subsection
32(6) of the Immigration Act, 1976 on a basis not
inconsistent with these reasons.
MAHONEY J.: I agree.
MARCEAU 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.