A-42-80
Harnek Singh Grewal (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
Court of Appeal, Pratte, Heald and Le Dain JJ.—
Vancouver, May 7, 1980.
Judicial review — Immigration — Applicant left Canada
pursuant to an exclusion order, and for a period of twelve
months thereafter was precluded from entering the country
without the Minister's consent — Applicant attempted to
re-enter Canada but was excluded by order of an Adjudicator
made more than twelve months after applicant had left
Canada, as a person who did not have the consent of the
Minister to enter Canada and who was a member of the class
of inadmissible persons described in s. 19(1)(i) of the Immi
gration Act, 1976 at the time of his examination by an
immigration officer — Whether the second exclusion order
was properly made — Application granted — Immigration
Act, 1976, S.C. 1976-77, c. 52, ss. 19(1)(i), 32(5), 57(2) —
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
APPLICATION for judicial review.
COUNSEL:
R. O. Rothe for applicant.
A. D. Louie for respondent.
SOLICITORS:
Rothe, Lipetz, Elias, Raynier & Pinsky, Van-
couver, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment of
the Court delivered orally in English by
PRATTE J.: The applicant comes from India. He
sought to enter Canada as a visitor on January 2,
1980, and was then excluded by an immigration
officer who reported him to a senior immigration
officer pursuant to subsection 20(1) of the Immi
gration Act, 1976, S.C. 1976-77, c. 52. An inquiry
followed at the conclusion of which, on January
24, 1980, an Adjudicator pronounced an exclusion
order against the applicant on the sole ground that
he was a person described in paragraph 19(1)(i) of
the Immigration Act, 1976.' That is the order
against which this section 28 application is
directed.
It is common ground that the applicant did not
have the consent of the Minister to come into
Canada and was a member of the class of inad
missible persons described in paragraph 19(1)(i)
on January 2, at the time of his examination by an
immigration officer. Indeed, he had left Canada on
January 10, 1979, after another exclusion order
had been made against him and, for a period of
twelve months following that date, was precluded
by subsection 57(2) z from coming into the country
without the consent of the Minister. However, that
situation had changed on January 24, 1980, when
the Adjudicator made the order under attack. At
that time, more than twelve months had expired
since the applicant had left Canada and he had, as
a consequence, ceased to be a member of the
inadmissible class described in paragraph 19(1)(i).
We are all of the view that, in those circum
stances, the Adjudicator could not legally make an
exclusion order against the applicant on the
ground that he was a person described in para
graph 19(1)(i). In our opinion, under subsection
32(5), the Adjudicator must determine if the
person seeking to come to Canada "is", at the time
he makes his decision, a member of an inadmiss
ible class.
The application will therefore be granted, the
exclusion order made against the applicant on
I Paragraph 19(1.)(i) reads as follows:
19. (1) No person shall be granted admission if he is a
member of any of the following classes:
(1) persons who, pursuant to section 57, are required to
obtain the consent of the Minister to come into Canada
but are seeking to come into Canada without having
obtained such consent.
z Subsection 57(2) reads as follows:
57....
(2) Subject to section 58, where an exclusion order is made
against a person, the person shall not, after he is removed
from or otherwise leaves Canada, come into Canada without
the consent of the Minister at any time during the twelve
month period immediately following the day on which that
person is removed from or otherwise leaves Canada unless an
appeal from the order has been allowed.
January 24, 1980, will be set aside and the matter
will be referred back for adjudication on the basis
that, under section 32(5), an exclusion order
cannot be made against a person who is not, at the
time of the Adjudicator's decision, a member of an
inadmissible class.
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.