A-519-80
Johann Josef Taubler (Applicant)
v.
Minister o% Employment and Immigration
(Respondent)
Court of Appeal, Thurlow C.J., Ryan J. and
MacKay D.J.—Toronto, September 16, 17 and 19,
1980.
Judicial review — Immigration — Deportation order —
Whether Adjudicator has authority to adjourn and subse
quently reconvene and complete the inquiry after receiving
further evidence — Whether Adjudicator's order based on
applicant's conviction in another country was correct —
Whether mens rea, an element of the offence of misappropria
tion under Canadian law, is presumed to be an element of
offence of misappropriation under foreign law — Whether
Adjudicator's inference that applicant's visitor status had
expired was well-founded — Application dismissed — Feder
al Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
APPLICATION for judicial review.
COUNSEL:
Donald M. Greenbaum, Q.C. for applicant.
L. Lehmann for respondent.
SOLICITORS:
Moses, Spring, Greenbaum & Pang, Toronto,
for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
THE COURT: This is an application under sec
tion 28 of the Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, to review and set aside a
deportation order made against the applicant.
The applicant's first submission was that the
Adjudicator lost jurisdiction and became functus
officio when, after hearing the evidence offered by
the case presenting officer and the applicant and
after hearing argument, he adjourned the inquiry
so that the subject matters of the report could be
further investigated and further evidence pro
duced. We are of the opinion that it lay within the
authority of the Adjudicator under his mandate to
hold an inquiry to adjourn as he did and subse
quently to reconvene and complete the inquiry
after receiving further evidence on the subject
matters of the inquiry.
We are also of the opinion that there was evi
dence to support the Adjudicator's conclusion that
the applicant, by reason of his conviction in
Austria in 1969 of misappropriation of money and
vehicles to the value of 115,000 Austrian schil-
lings, was subject to deportation as a person who
had been convicted of an offence that if committed
in Canada would constitute an offence, viz., theft
of property of a value exceeding $200, that might
be punishable under the Criminal Code of
Canada, R.S.C. 1970, c. C-34, and for which a
maximum penalty of ten years or more might be
imposed. The submission that there was no evi
dence of Austrian law upon which it might be
ascertained whether the convictions under that law
involved a finding of mens rea, which is an element
of theft under Canadian law, is in our view not
sustainable. In our opinion in the absence of evi
dence to the contrary it is to be presumed that the
Austrian law as to misappropriation involves the
element of mens rea and that a conviction under
that law indicates that a finding of guilty intent
was made.
We are further of the view that it was open to
the Adjudicator on the evidence before him, after
rejecting as unworthy of belief the evidence of the
applicant and his wife as to his visits to the United
States, to infer from the fact that the applicant
had no visa for travel to the United States that the
applicant remained in Canada after the period for
which he had been authorized to remain in
Canada as a visitor had expired.
The application therefore fails and is dismissed.
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.