A-316-74
Rudradat Narain (Applicant)
v.
Minister of Manpower and Immigration
(Respondent)
Court of Appeal, Thurlow and Urie JJ. and
MacKay D.J.—Toronto, November 29 and
December 24, 1974.
Judicial review—Deportation order—Admission as visi-
tor—Working within period of admission—No work permit
obtained—Whether change of class since admission—Immi-
gration Act, R.S.C. 1970, c. I-2, ss. 7, 14, 18, 27, 48—
Immigration Regulations, s. 3c.
The applicant was permitted entry into Canada from
Guyana, as a tourist, under section 7(1)(c) of the Immigra
tion Act, for three months ending December 21, 1974. He
had three months' leave from his work in Guyana and
adequate means of supporting himself during his visit to
Canada. He took a job without having obtained a work
permit as required by section 3c(1)(b) of the Immigration
Regulations and was employed until October 16, when he
was arrested under section 14(1) of the Act. At the ensuing
inquiry, he stated his intention to return to Guyana at the
end of the three-month period. The Special Inquiry Officer
ordered deportation, on the ground that the applicant came
within section 18(1)(e)(vi) of the Act, since he had entered
Canada as a non-immigrant and had remained there after
ceasing to be in the particular class in which he had entered.
A section 28 application was brought by the applicant to
review the deportation order.
Held, (MacKay D.J. dissenting) the order should be set
aside.
Per Thurlow and Urie JJ.: By taking employment without
a permit, the applicant rendered himself liable to a penalty.
He also brought himself within the class of employed per
sons described in section 7(1)(h) of the Act. The classes in
that subsection are not mutually exclusive and a person may
be in more than one of them at the same time. The fact that
the applicant took employment might be evidence that he
had ceased to be in the class of a visitor, but that was simply
a fact to be weighed with all the other circumstances. The
fact of taking temporary employment was not, in the light of
the circumstances here, necessarily inconsistent with his
continuing to be a tourist or visitor, within the meaning of
section 7(1)(c), and unless he ceased to be in that class, he
was not subject to deportation. The Special Inquiry Officer
erred in law when he decided that the applicant had ceased
to be in the class of non-immigrant under which he had been
admitted.
Mihm v. Minister of Manpower and Immigration [1970]
S.C.R. 348, distinguished.
Per MacKay D.J. (dissenting): While the applicant was
engaged in the employment, he was not within the category
of a visitor or tourist.
JUDICIAL review.
COUNSEL:
Terence Hunter for applicant.
E. A. Bowie for respondent.
SOLICITORS:
Hunter & Johnston, Toronto, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
delivered in English by
THURLOW J.: This is an application to review
and set aside an order of deportation made
against the applicant on October 24, 1974 by a
Special Inquiry Officer under the Immigration
Act. The ground for deportation, as set out in
the order, was that the applicant was a person
described in subparagraph 18(1)(e)(vi) of the
Act in that he entered Canada as a non-immi
grant and remained therein after ceasing to be in
the particular class in which he entered as a
non-immigrant.
The applicant arrived in Toronto from
Guyana on September 21, 1974 and was permit
ted to enter Canada as a visitor or tourist for a
period of three months ending December 21,
1974. On October 7, 1974 he took a job as an
assembler repairman with Venus Electric Com
pany and was so employed when, on October
16, he was arrested on a warrant under subsec
tion 14(1) of the Immigration Act. On the same
day an inquiry was directed as to whether he
was a person described in subparagraph
18(1)(e)(vi).
The applicant had not obtained a work permit,
as required by the Regulations, before he took
employment. He said he was not aware that a
permit was required. While in Canada he lived
with a relative and he had adequate means to
support himself. In Guyana he had had employ
ment as a hardware stores manager with a
manufacturer known as Toolsie Persaud Lim
ited, where he had been employed in different
capacities since 1956. He presented a letter
indicating he had leave of absence for three
months from that company. He had had experi
ence as a production manager in office hard
ware and his present job was with a plastic
factory of that company. Towards the end of
the inquiry, when asked if he had anything to
say on his own behalf, his response was:
A. The only thing is, as I said, in all honesty I came here
as a visitor. I hope at the end of my leave to go home.
I have all the reasons to go home. I was a bit bored
and worked not for the sake of money. I like to have a
look see in the factory to head the thermoplastic
factory, the very first in Guyana, the only one. We
have government protection. We bought all the ma
chinery here; owner of this company is my cousin. He
spoke to me two nights ago that while I am here for me
to have a good experience in a thermoplastic factory
here.
It is apparent from the record that the Special
Inquiry Officer regarded the taking of a job as
ipso facto resulting in the applicant ceasing to
be a tourist or visitor. At page 24 he observed:
By Special Inquiry Officer:
Mr. Hunter, it appears to me that your client, Mr. Narain,
did enter Canada as a tourist or visitor under 7(1)(c) and he
removed himself from that class when he engaged in
employment in Canada. Had he been authorized to accept
employment in Canada the designation given to him to
perform this task would be 7(1)(h). Had he been granted
employment visa, that would be a designation for a person
working in Canada.
and in his reasons at page 30 he said:
From your evidence it was your testimony that you arrived
in Canada on 21 September, 1974 as a tourist or visitor
under 7(1)(c) until 21 December, 1974 and that on or around
7 October, 1974, Monday, by your own admission you
started employment with Venus Electric Company of
Toronto. It is my opinion that by doing so, by your own
action, you ceased to be in the particular category of tourist
or visitor. By doing so you had fallen into the 7(1)(h) or
7(1)(i) which is a person engaged in a legitimate profession,
trade or occupation entering Canada or who, having entered
Canada, is in Canada for the temporary exercise of his
respective calling; or a person entering Canada or who,
having entered Canada, is in Canada for seasonal or other
temporary employment, unless otherwise directed by the
Minister. Whether you fell into these categories does not fall
within the vital scope of this inquiry and it is my opinion
that you ceased to be in the particular class in which you
were admitted as a non-immigrant.
I agree with the view of the Special Inquiry
Officer that, for the purpose of determining
whether a person has ceased to be in the par
ticular class of non-immigrant in which he was
admitted as a non-immigrant, it is not necessary
or critical to place him in any particular other
class of non-immigrant. But, with respect, I do
not think that either the fact that the person
concerned took employment without a permit or
that after doing so he would be accurately
described by the wording of one of the other
paragraphs of subsection 7(1), and thus fall
within such class, necessarily results in his
being a person who has ceased to be in the class
of non-immigrant in which he was admitted.
The classes defined in that subsection are not
mutually exclusive and, in my opinion, it is quite
possible for a person to be in more than one of
them at the same time. For example, a professor
who enters Canada to give a series of lectures
on particular dates might be classed under para
graph 7(1)(h). But if he came a week ahead of
the scheduled dates intending to tour or visit,
and remained for the same purpose for a week
after the lectures had been delivered it would, in
my opinion, be impossible to say that his class
changed at any time. He would, in my view, be
a visitor within the meaning of paragraph 7(1)(c)
throughout, and in the class of paragraph
7(1)(h), as well, either for the whole of the
period or at least during the scheduled lecture
period.
The question whether a person has ceased to
be in a particular class of non-immigrant cannot,
as I see it, be resolved on the basis that because
a person does something that might put him in a
different or second class he ceases to be in his
original class. It must be resolved, in my opin
ion, as a question of fact depending on what the
evidentiary material before the Special Inquiry
Officer shows as indicating that the person con
cerned has in fact ceased to be in his original
class as a non-immigrant. For this purpose the
fact of the person having taken employment
may be evidence, and sometimes very cogent
evidence, that the person concerned has ceased
to be in the class of a tourist or visitor, but, as I
see it, it is never more than a fact to be weighed
in the light of the other circumstances of the
particular case which may tend to show that the
person has or has not ceased to be in a particu
lar class.
Neither the expression "tourists or visitors"
nor either of the particular words is specially
defined in the Act and for the purposes of
paragraph 7(1)(c) they must, in my opinion, be
given their ordinary meaning. In my view the
taking of temporary employment by a tourist or
visitor is not necessarily inconsistent with his
continuing to be a tourist or visitor within the
ordinary meaning of those words.
In the present instance the applicant, by
taking temporary employment without a permit,
may well have rendered himself liable to pros
ecution and punishment for breach of applicable
regulations. But the fact of taking such tempo
rary employment was not, in the light of the
other evidence, necessarily inconsistent with his
continuing to be a tourist or visitor within the
meaning of paragraph 7(1)(c), and unless he
ceased to be in that class he was not subject to
deportation.
The only case referred to which resembles the
present is Mihm v. Minister of Manpower and
Immigration' where the Supreme Court held
that the appellant by taking employment while
in Canada on a two-week visit had ceased to be
in the class of non-immigrant in which he was
admitted but that, as I see it, was a case where
Mihm had decided to stay and had taken
employment because he intended to stay. He
was still present in Canada and employed some
months after his two weeks initial visit had
terminated. I do not think therefore that that
[1970] S.C.R. 348.
case governs the present.
It is common ground that the applicant is no
longer in Canada and in the circumstances no
purpose would be served by referring the matter
back for further inquiry. In my opinion the
record shows that the Special Inquiry Officer in
reaching his conclusion that the applicant had
ceased to be a tourist or visitor proceeded on an
erroneous view of the law and I would therefore
set aside the deportation order.
* * *
The following are the reasons for judgment
delivered in English by
URIE J.: This is a section 28 application to set
aside a deportation order made against the
applicant by a Special Inquiry Officer under
section 27(3) of the Immigration Act.
The material facts as they appear from the
evidence placed before the Special Inquiry Offi
cer are as follows:
1. The applicant, a citizen of Guyana, was
admitted as a visitor on September 21, 1974
following his arrival at Toronto International
Airport on that date.
2. His expressed intention was to remain in
Canada for three months while visiting two
brothers-in-law and sisters-in-law.
3. He had been continuously employed in his
native country since 1956, latterly as a hard
ware stores manager for Toolsie Persaud Lim
ited from which firm he has received three
months' leave of absence. His family, consisting
of a wife and three children, remained in
Guyana.
4. Prior to his entry he had applied in Guyana
for permanent residence in Canada as the
nominee of one of his sisters-in-law but, as he
told the Special Inquiry Officer, his application
"is still in process."
5. On or about October 9, 1974 he engaged in
employment in Toronto without first having
obtained a work permit.
6. On October 16, 1974 a warrant was issued
for his arrest which was executed by R.C.M.P.
officers on the same day. An immigration offi
cer, pursuant to section 18 of the Immigration
Act, made a report as a result of which the
inquiry before the Special Inquiry Officer was
forthwith convened at the Metropolitan Toronto
jail. At the request of the applicant's counsel the
inquiry was adjourned until October 24, 1974
and on October 17, 1974 the applicant was
released on posting a $500 cash bond.
7. Following the conclusion of the inquiry on
October 24, the Special Inquiry Officer ordered
the applicant deported on the ground that:
You are a person described in subparagraph 18(1)(e)(vi) of
the Immigration Act in that you entered Canada as a non-
immigrant and remained therein after ceasing to be in the
particular class in which you were admitted as a
non-immigrant.
Counsel for the applicant argued on this
application that the fatal flaw in the proceedings
before the Special Inquiry Officer arose by his
failure to state what class of non-immigrant
status the applicant fell into as a result of his
finding that the applicant ceased to be in the
particular class in which he was admitted. Coun
sel argued that this finding implied that the
applicant remained a non-immigrant and thus
that he was entitled to be advised of the classifi
cation of non-immigrant into which he had
fallen.
The difficulty in this argument, it seems to
me, arises by virtue of the fact that the Special
Inquiry Officer in making his finding followed
precisely the wording of section 18(1)(e)(vi) of
the Act. Section 27(2) of the Act provides that
unless he decided that the applicant was not a
person proved to be a person described in para
graph 18(1)(e)(vi), he had to permit the person,
if then in Canada, to remain in Canada. Subsec
tion (3) of section 27 requires that in the case of
a person "other than a person referred to in
subsection (2)" the Special Inquiry Officer,
upon rendering his decision, had to make an
order for deportation. It is thus clear that to
comply with the requirements of this subsection
it was necessary for him to base his decision on
the finding that the applicant had ceased "to be
in the particular class in which he was admitted
as a non-immigrant" being the exact words of
the applicable portion of paragraph 18(1)(e)(vi)
to which he was bound to refer.
There is no requirement, in my view, that the
Special Inquiry Officer must declare the kind of
non-immigrant the applicant had become and
the argument of counsel on this basis must be
rejected.
However, that does not end the matter. An
important question as to the validity of the
deportation order arises in determining whether
or not accepting temporary employment in
Canada, while he was legally in the country as a
tourist or visitor, deprived the applicant of his
status as such. If it does, then, of course, he
ceased "to be in the particular class in which he
was admitted" as found by the Special Inquiry
Officer. In my respectful opinion, that conclu
sion was in error.
It must first be remembered that since the
applicant was already in Canada there was no
onus upon him to prove that he was entitled to
remain here. Since the period during which his
visitor's status was valid had not expired, unless
the respondent could show that for some reason
he was no longer entitled to remain here, he was
entitled to do so for the balance of his period of
admissibility. A review of the whole of the
evidence adduced before the Special Inquiry
Officer leads inevitably to the conclusion that
the applicant had no intention of remaining in
Canada after his three months' visitor's rights
had expired. All the evidence is to the contrary.
His wife and his family continued to reside in
Guyana; he had an excellent job to which to
return with a good salary and a good future and
he owned his own house, furnishings and furni
ture and an automobile, all in Guyana. In addi
tion, the evidence shows that he was well aware
of the requirements of the Act in so far as it
pertained to acquiring permanent residence in
Canada is concerned-and had taken the proper
steps to seek admission on that basis. All the
impelling motives for returning home were
present and his intention to do so was clearly
expressed to the Special Inquiry Officer. There
was, in my opinion no evidence upon which he
might have reached the conclusion that the
applicant had abandoned his intention to return
to Guyana. Thus, I do not think that logically or
legally the Special Inquiry Officer could have
found that he had ceased to be a tourist or
visitor. Simply because he accepted temporary
employment while in Canada does not alter the
intention to return to his native country.
In my opinion, it is unnecessary for me to
consider whether or not by accepting such tem
porary employment he fell within one or more
of the other permitted classes of non-immigrant
under section 7 or whether, even if he did so, he
lost his status as a tourist and visitor. In fact, as
above noted, I do not believe that he ever lost
his status as a tourist or visitor and that is all
that is necessary for me to find, although I must
say that I can see no reason why a person
cannot be in more than one classification at the
same time.
Counsel for the respondent referred the Court
to section 3c of the Immigration Regulations,
the applicable part of which reads as follows:
3c. (1) Subject to section 3F
(a) no person may enter Canada as a non-immigrant for
the purpose of engaging in employment, and
(b) no person other than
(i) a Canadian citizen
(ii) a permanent resident, or
(iii) a person authorised to enter Canada under a writ
ten permit issued by the Minister pursuant to section 8
of the Act that expressly states that the holder thereof
is authorized to engage in employment,
shall engage in employment in Canada, unless he is in
possession of a valid employment visa.
Certainly paragraph (a) is not applicable since
the evidence is clear that the applicant's pur
pose in entering Canada was not to engage in
employment but to visit relatives in this coun
try. In accepting temporary employment with
out a permit he was certainly in breach of
paragraph (b) of Regulation 3c. Failure to obtain
the permit made him liable to prosecution under
section 48 of the Act and, in fact, a charge
apparently was laid against him under this
provision, although it was not proceeded with as
a result of the applicant's return to Guyana.
While in another factual situation the circum
stances may be such that an applicant who takes
employment while in Canada as a visitor, with
out a permit, may cease to be a visitor as well as
be prosecuted under section 48, such circum
stances do not exist in this case so far as the
evidence discloses.
An example of that kind of case was referred
to during argument namely, the decision of the
Supreme Court of Canada in Mihm v. Minister
of Manpower and Immigration [1970] S.C.R.
348. There, the appellant husband and father
entered Canada for what he said, at the port of
entry, was to be a two-week visit but within a
few days he accepted employment which, unlike
that of the applicant in this case, was permanent
in nature. The appellant in the Mihm case was a
United States army deserter from which per
haps it may be inferred that he did not intend to
return to the United States and who did not
seek permanent resident status until long after
his visitor's status had expired. During all of his
stay in Canada his employment had continued.
The factual circumstances in the Mihm case
(supra) differ greatly from the circumstances in
this case in that
(a) The appellant's intention to stay was
evidenced by his application for permanent
residence,
(b) his employment was of a permanent
nature,
(c) his visitor's status had expired by the
time the deportation order was made, and
(d) he was found to be not only a person
who remained in Canada after ceasing to be in
the particular class but, more importantly,
that he entered Canada as a non-immigrant
and remained therein after ceasing to be a
non-immigrant.
The cases are thus, in my view, distinguishable
on all of these facts.
Accordingly, in my opinion, the Special Inqui
ry Officer was wrong in law in deciding that the
applicant had ceased to be in the class of non-
immigrant under which he had been admitted
and I would, therefore, set aside the order of
deportation.
* * *
The following are the reasons for judgment
delivered in English by
MACKAY D.J.: In this case I am of the opin
ion that the application to set aside the deporta
tion order made by the Special Inquiry Officer
should be dismissed.
On September 21, 1974 the applicant was
permitted to enter Canada as a visitor or tourist
under section 7(1)(c) for a period of three
months. On October 7, 1974 he took employ
ment with Venus Electric Company and was
still in this employment when he was arrested
on October 16th on a warrant issued under
section 14(1) of the Immigration Act.
Under section 2 of the Act "entry" means the lawful
admission to Canada for a special or temporary purpose and
for a limited time.
Section 7(1) provides that
7. (1) The following persons may be allowed to enter and
remain in Canada as non-immigrants, namely,
(c) tourists or visitors;
(h) persons engaged in a legitimate profession, trade or
occupation entering Canada or who, having entered, are in
Canada for the temporary exercise of their respective
callings;
(i) persons entering Canada or who, having entered, are in
Canada for seasonal or other temporary employment,
unless otherwise directed by the Minister; and
Under date of May 15, 1974, the Minister of
Manpower and Immigration issued the following
direction:
Seasonal or Other Temporary Employment Direction
Pursuant to the authority vested in me by paragraph 7(1)(i)
of the Immigration Act, I do hereby revoke all previous
directions made or deemed to have been made by me
pursuant to that authority, and do make the following Sea
sonal or Other Temporary Employment Direction, April 26,
1974.
1. This instrument may be cited as the Seasonal or Other
Temporary Employment Direction, April 26, 1974.
2. It is hereby directed that persons seeking to come into
Canada, or who having entered, are in Canada for the
purposes of seasonal or other temporary employment, shall
not be allowed to enter or remain in Canada unless such
persons have been selected outside Canada pursuant to
departmental arrangements to engage in such employment in
accordance with a seasonal or other temporary employment
program approved by me.
3. Notwithstanding Section 2, a person seeking to come into
Canada, or, who having entered, is in Canada for the pur
pose of seasonal or other temporary employment may be
allowed to enter and remain in Canada if it appears to an
Immigration Officer from information provided by the na
tional employment services that the employment in which he
intends to engage cannot be filled by a seasonal or c`her
temporary employment program approved by me.
R. Andras
Minister of Manpower
& Immigration
Dated at Ottawa this 15th day of May, 1974.
If a person were allowed to enter Canada as a
visitor or tourist and during the period he was
permitted to remain as a visitor he engaged in
employment or in any of the other categories
under section 7 for which non-immigrants are
allowed entry it would defeat the purposes of
the Act.
If a person desired to enter Canada for the
dual purpose of a tourist and to take temporary
employment it would be necessary for him to
apply for entry for both purposes—if the appli
cant in the present case had done so he was not
in a position to comply with the provisions of
the directive of the Minister set out above and
would have been refused entry.
It is my view that while the applicant was
engaged in employment he was not in the cate
gory of a visitor or tourist.
I think the statement of Cartwright J., in the
case of Mihm v. Minister of Manpower and
Immigration [1970] S.C.R. 348 at page 353 that:
The appellant entered Canada in November as a non-
immigrant visitor intending to stay for two weeks. He
ceased to be in the particular class of visitor on taking
employment on December 7, 1967.
is applicable to any case where a person who is
allowed entry to Canada as a visitor only,
accepts employment, irrespective of whether
such employment was entered into during or
after the period for which he was permitted to
enter as a visitor.
In the Mihm case at page 354 Spence J., said:
The appellant... [entered Canada] at an entry port in
Manitoba, about the end of November or early in December
1967.
so that it would appear that he took employment
before the expiration of the two week period of
his permission to stay as a visitor.
I would therefore dismiss the application.
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.