T-5873-80
Arturo Juventino Heras (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
Trial Division, Mahoney J.—Toronto, January 12;
Ottawa, January 20, 1981.
Prerogative writs — Prohibition — Immigration —
Application to prohibit respondent from executing deportation
order made against applicant and to quash it — Applicant, a
visitor, remained in Canada beyond period allowed — First
permit issued by respondent under old Immigration Act —
Second one, under new Immigration Act which repealed the
old Act — Refusal of applicant to leave Canada when request
ed to do so on expiry of second permit — Deportation order
followed — Whether second permit illegally issued — Wheth
er deportation order a nullity — Immigration Act, R.S.C.
1970, c. 1-2, s. 8 — Immigration Act, 1976, S.C. 1976-77, c.
52, ss. 27(2), 37 — Interpretation Act, R.S.C. 1970, c. 1-23, s.
35(c).
Applicant entered Canada as a visitor but remained beyond
the period allowed him. He subsequently reported to an immi
gration officer and was issued two permits: the first one, under
section 8 of the old Immigration Act (R.S.C. 1970, c. I-2) and
the second one (issued on the former's expiry) under section 37
of the new Immigration Act, 1976 (S.C. 1976-77, c. 52) which
repealed the old Act. When the second permit expired, appli
cant was requested to leave Canada. He refused to do so and a
deportation order followed. Applicant now seeks that the
respondent be prohibited from executing the order and that it
be quashed. He argues that at the date the new Act came into
force, he had a status not taken from him by the repeal of the
old Act and that consequently, not being the subject of a report
under section 27, the permit under section 37 was illegally
issued and hence, the deportation order is a nullity.
Held, the application for prohibition is dismissed. The appli
cant's right to remain in Canada under the permit issued under
the old Act continued until its expiry, but his rights on its
expiry are defined by the new Act. A permit issued under the
old Act conferred no status on the holder beyond authorizing
him, while it subsisted, to remain in Canada. When it expired,
he was "a person with respect to whom a report ... may be
made" under paragraph 27(2)(e) of the new Act, being, since
ten days after he entered Canada, a person who "entered
Canada as a visitor and remains therein after he has ceased to
be a visitor".
APPLICATION.
COUNSEL:
C. Hoppe for applicant.
B. Evernden for respondent.
SOLICITORS:
Abraham Duggan Hoppe Niman Stott,
Toronto, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
MAHONEY J.: This is an application for a writ
of prohibition prohibiting the respondent from
executing a deportation order made against the
applicant October 10, 1979, and for a writ of
certiorari quashing the deportation order. A like
application, Court No. T-5874-80, by the appli
cant's brother, Cesar Efrain Heras, in respect of a
deportation order made December 3, 1979, was
made concurrently. The material facts are identi
cal aside from dates. The evidence consists of the
affidavit of a student-at-law in the applicant's
solicitor's office exhibiting the applicant's affidavit
and written submission filed in earlier proceedings
in the Federal Court of Appeal and a book of
documents entitled "Record" filed at the hearing.
While it is immaterial to the issue, the fact that
the respondent has concluded that the applicant's
marriage, hereinafter referred to, is a marriage of
convenience, one of a number entered into by the
applicant and his relatives, underlies the making of
the deportation order.
The applicant entered Canada, as a visitor, July
31, 1976. He was admitted for ten days and
remained beyond that period. He married a
Canadian citizen on December 12, 1976. In Febru-
ary, 1977, he applied for permanent residence in
Canada and his wife concurrently applied for his
admission as a sponsored dependant. On February
11, 1977, a permit under section 8 of the Immi
gration Act,' hereinafter "the old Act", issued to
remain in force until February 10, 1978. That
permit was eventually extended to expire June 11,
1978. On April 10, 1978, the Immigration Act,
1 R.S.C. 1970, c. 1-2.
1976, 2 hereinafter "the new Act", was proclaimed
in force. It repealed the old Act. On June 9, a
permit under section 37 of the new Act issued to
remain in force until December 11, 1978. It was
extended to expire March. 10, 1979. Each permit
and each extension ensued upon the applicant
reporting to an immigration officer. Specifically,
the applicant's premise that the permit under the
new Act and its extension were issued gratuitously
is not true. He sought them.
Prior to March 10, 1979, the applicant was
notified that the permit would not be further
extended and he was requested, in writing, to leave
Canada on or before March 31. At the same time,
the applicant's wife was advised that her applica
tion to sponsor his admission had been refused and
of her right to appeal that decision. She did not
appeal. Her application has been finally disposed
of notwithstanding that she did not withdraw it.
The applicant declined to leave Canada and
asked for an inquiry into his case. None was held.
On April 18, the respondent, under subsection
37(5) of the Act, directed that the applicant leave
Canada by May 3. He did not leave. The deporta
tion order issued October 10, 1979, under subsec
tion 37(6). This application was filed following a
decision by the Federal Court of Appeal on
December 8, 1980, that, in view of The Minister of
Manpower and Immigration v. Hardayal, 3 it had
no jurisdiction under section 28 of the Federal
Court Act 4 to review and set aside a deportation
order made pursuant to subsection 37(6) of the
new Act.
The old and new Acts both provide for a depor
tation order to issue as the respondent's ultimate
recourse in the event a person no longer subject of
a subsisting permit remains in Canada. The sig
nificant difference is that under the old Act the
applicant would, in the circumstances, have been
entitled to appeal the order to the Immigration
2 S.C. 1976-77, c. 52.
3 [1978] 1 S.C.R. 470.
4 R.S.C. 1970 (2nd Supp.), c. 10.
Appeal Board; under the new, he is not, although
his wife, as a sponsoring Canadian citizen, was.
The thrust of the applicant's argument, as I
understand it, is that, on April 10, 1978, when the
new Act was proclaimed, he had a status in
Canada not taken from him by the repeal of the
old Act. If that is accepted, then, it is said, not
being a person with respect to whom a report had
or might have been made under subsection 27(2)
of the new Act, he was not a person to whom a
permit under section 37 of the new Act could
legally issue. It follows that, the permit being a
nullity, the respondent's making a deportation
order ensuing upon its expiration is a nullity.
The transitional provisions of the new Act are
silent as to the holder of a permit in the applicant's
circumstances although subsection 124(1) does
deal with permit holders in other circumstances. I
infer that Parliament's silence was intended. In my
view, paragraph 35(c) of the Interpretation Act 5
applies.
35. Where an enactment is repealed in whole or in part, the
repeal does not
(c) affect any right, privilege, obligation or liability acquired,
accrued, accruing or incurred under the enactment so
repealed;
The applicant's right to remain in Canada under
the permit issued under the old Act continued until
its expiry, but his rights on its expiry are defined
by the new Act.
The applicant attributes much more to a Minis
ter's permit under either Act tha the law has
provided. A permit issued under the old Act con
ferred no status on the holder beyond authorizing
him, while it subsisted, to remain in Canada.
Notwithstanding issue of the permits, the appli
cant has, since ten days after he entered Canada,
been a person who "entered Canada as a visitor
and remains therein after he has ceased to be a
visitor". When the permit under the old Act
expired, he was "a person with respect to whom a
5 R.S.C. 1970, c. 1-23.
report ... may be made" under paragraph
27(2)(e) of the new Act. The permit issued under
the new Act was a permit which the Minister was
entitled to issue and the deportation order was an
order the Minister was entitled to make after the
permit had expired and the applicant had failed to
comply with the direction made under subsection
37(5).
JUDGMENT
The application is dismissed with costs.
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