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A-70-81
Cesar Efrain Heras (Appellant)
v.
Minister of Employment and Immigration (Respondent)
Court of Appeal, Thurlow C.J., Cowan and Lalande D.JJ.—Toronto, September 22 and 24, 1982.
Judicial review — Prerogative writs — Prohibition Immigration — S. 27 appeal from trial judgment dismissing s. 18 application for writs of prohibition and certiorari prohib iting respondent from executing order of deportation and quashing order on grounds that it was void ab initio Appellant entered Canada as visitor but having overstayed and married Canadian citizen, became a person described in s. 27(2)(e).• one who enters Canada as a visitor and remains therein after he has ceased to be a visitor — Appellant remained in Canada on Minister's permit without which he would have been liable to deportation — New Act proclaimed during currency of permit — Whether, based on combined effect of definitions of "visitor" and "permit" in s. 2(1) of new Act, appellant acquired status of visitor during period from coming into force of Act to expiration of permit — Appeal dismissed — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 18, 27(1) — Immigration Act, R.S.C. 1970, c. 1-2 Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 2(1), 27(2)(e), 37(1).
COUNSEL:
Carter C. Hoppe for appellant. Brian R. Evernden for respondent.
SOLICITORS:
Abraham, Duggan, Hoppe, Niman & Stott, Toronto, for appellant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment delivered orally in English by
COWAN D.J.: This is an appeal pursuant to subsection 27(1) of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10 from a judgment of the Trial Division dismissing an application brought by the appellant pursuant to section 18 of the Federal Court Act seeking a writ of prohibition prohibiting the respondent from executing an
order of deportation made against the appellant on October 10, 1979, and a writ of certiorari quash ing the order of deportation on the ground that the order was a nullity and void ab initio.
I am of the opinion that the appeal should be dismissed for the reasons given by the Trial Judge which are now reported at [1981] 2 F.C. 605.
On April 10, 1978, when the Immigration Act, 1976, the "new Act"' was proclaimed in force, the appellant was a person who "entered Canada as a visitor and remains therein after he has ceased to be a visitor". As such, he was "a person with respect to whom a report ... may be made" under paragraph 27(2)(e) of the new Act. On that date he was, however, authorized to remain in Canada by reason of the permit granted under the Immi gration Act 2 , the "old Act" and, as found by the Trial Judge, the appellant's right to remain in Canada continued until the expiry date of the period stated in that permit. Nevertheless, he remained "a person with respect to whom a report ... may be made" under paragraph 27(2)(e) and the Minister was entitled to issue to him a permit under paragraph 37(1)(b) of the new Act.
I reject the argument that the effect of the definitions of "visitor" and "permit" in subsection 2(1) of the new Act was to give the appellant the status of a visitor during the period from the coming into force of the new Act to the expiration of the period covered by the permit granted to him by the Minister under the old Act.
The definition of visitor is as follows:
"visitor" means a person who is lawfully in Canada, or seeks to come into Canada, for a temporary purpose, other than a person who is
(a) a Canadian citizen,
(b) a permanent resident,
(c) a person in possession of a permit, or
(d) an immigrant authorized to come into Canada pursu ant to paragraph 14(2)(b), 23(1 )(b) or 32(3)(b).
"Permit" is defined as follows:
' S.C. 1976-77, c. 52. 2 R.S.C. 1970, c. I-2.
"permit" means a subsisting permit issued under subsection 37(1);
The appellant was not, on April 10, 1978, in possession of a permit issued under subsection 37(1) of the new Act and did not therefore come within the exclusionary paragraph (c) of the defi nition of "visitor" but he did not, on that date, qualify as a visitor under the opening words of the definition, as being "a person who is lawfully in Canada ... for a temporary purpose". He had entered Canada as a visitor on July 31, 1976. He was admitted for ten days but remained beyond that period. He married a Canadian citizen and applied for permanent residence in October 1977. He did come within the meaning of paragraph 27(2)(e) as "a person who ... entered Canada as a visitor and remains therein after he has ceased to be a visitor". As such he was subject to being reported under paragraph 27(2)(e) and, but for the Minister's permit under the old Act, he would have been liable to be deported. That situation continued and was still the situation when a Minis ter's permit under paragraph 37(1)(b) 3 of the new Act was issued, allowing him to remain in Canada after the period of the permit issued under the old Act came to an end. The circumstances authoriz ing the Minister to issue a permit under the new Act existed from the time the new Act came into effect and continued to exist when the permit under the new Act was issued.
The appeal, therefore, fails and should be dis missed with costs.
THURLOW C.J.: I agree. LALANDE D.J.: I agree.
3 37. (I) The Minister may issue a written permit authorizing any person to come into or remain in Canada if that person is
(b) in the case of a person in Canada, a person with respect to whom a report has been or may be made under subsection 27(2).
 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.