Minister of Manpower and Immigration
(Appellant)
v.
Nathi Ram (Respondent)
Court of Appeal, Jackett CJ., MacKay and
Sweet D.JJ.—Toronto, April 30, 1973.
Immigration—Foreigner allowed admission to Canada on
depositing sum fixed by immigration officer—Whether a
"non-immigrant"—Deportation order reversed by Immigra
tion Appeal Board—Immigration Act, s. 63(1).
Appellant,, a citizen of India, was refused admission to
Canada, and following a hearing before a Special Inquiry
Officer was ordered deported for failure to deposit $1,000,
the sum deemed necessary by the immigration officer in
charge pursuant to section 63(1) of the Immigration Act as a
guarantee that he would leave Canada within the time pre
scribed. The decision of the Special Inquiry Officer was
reversed by the Immigration Appeal Board on the ground
that appellant was not a "non-immigrant" within the mean
ing of section 63(1) of the Immigration Act but rather a
person seeking admission to Canada as a "non-immigrant".
Held, reversing the Immigration Appeal Board, on a
proper construction of section 63(1) appellant was a
"non-immigrant".
APPEAL from Immigration Appeal Board.
COUNSEL:
E. A. Bowie and A. G. Bryant for appellant.
Paul D. Copeland for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
appellant.
Copeland and King, Toronto, for respond
ent.
JACKETT C.J. (orally)—This is an appeal by
the Minister of Manpower and Immigration
from a decision of the Immigration Appeal
Board allowing an appeal from a deportation
order.
To appreciate the circumstances, one must
have in mind the following provisions of the
Immigration Act, R.S.C. 1970, c. I-2, concern
ing the procedures established to give effect to
the substantive provisions of that Act:
11. (1) Immigration officers in charge are Special Inquiry
Officers and the Minister may nominate such other immigra
tion officers as he deems necessary to act as Special Inquiry
Officers.
(2) A Special Inquiry Officer has authority to inquire into
and determine whether any person shall be allowed to come
into Canada or to remain in Canada or shall be deported.
19. (1) Every person, including Canadian citizens and
persons with Canadian domicile, seeking to come into
Canada shall first appear before an immigration officer at a
port of entry or at such other place as may be designated by
an immigration officer in charge, for examination as to
whether he is or is not admissible to Canada or is a person
who may come into Canada as of right.
22. Where an immigration officer, after examination of a
person seeking to come into Canada, is of opinion that it
would or may be contrary to a provision of this Act or the
regulations to grant admission to or otherwise let such
person come into Canada, he may cause such person to be
detained and shall report him to a Special Inquiry Officer.
23. (2) Where the Special Inquiry Officer receives a
report under section 22 concerning a person, other than a
person referred to in subsection (1), he shall admit him or let
him come into Canada or may cause such person to be
detained for an immediate inquiry under this Act.
26. (3) The Special Inquiry Officer may at the hearing
receive and base his decision upon evidence considered
credible or trustworthy by him in the circumstances of each
case.
(4) Where an inquiry relates to a person seeking to come
into Canada, the burden of proving that he is not prohibited
from coming into Canada rests upon him.
27. (1) At the conclusion of the hearing of an inquiry, the
Special Inquiry Officer shall render his decision as soon as
possible and shall render it in the presence of the person
concerned wherever practicable.
(2) Where the Special Inquiry Officer decides that the
person concerned is a person who
(a) may come into or remain in Canada as of right;
(b) in the case of a person seeking admission to Canada,
is not a member of a prohibited class; or
(c) in the case of a person who is in Canada, is not proved
to be a person described in paragraph 18(1)(a),(b),(c),(d)
or (e),
he shall, upon rendering his decision, admit or let such
person come into Canada or remain therein, as the case may
be.
(3) In the case of a person other than a person referred to
in subsection (2), the Special Inquiry Officer shall, upon
rendering his decision, make an order for the deportation of
such person.
It is also necessary to have in mind the follow
ing provisions, which bear on the substantive
question of law raised by the decision of the
Immigration Appeal Board against which this
appeal is brought:
2. In this Act
"non-immigrant" means a person who is a member of any of
the classes designated in subsections 7(1) and (2);
5. No person, other than a person referred to in subsec
tion 7(2), shall be admitted to Canada if he is a member of
any of the following classes of persons:
(t) persons who cannot or do not fulfil or comply with
any of the conditions or requirements of this Act or the
regulations or any orders lawfully made or given under
this Act or the regulations.
7. (1) The following persons may be allowed to enter and
remain in Canada as non-immigrants, namely,
(c) tourists or visitors;
63. (1) The immigration officer in charge at a port of
entry may require any non-immigrant or group or organiza
tion of non-immigrants arriving at such port to deposit with
him such sum of money as he deems necessary as a guaran
tee that such non-immigrant or group or organization of
non-immigrants will leave Canada within the time prescribed
by him as a condition for entry.
(2) Where the non-immigrant or group or organization of
non-immigrants fails to leave Canada within the time pre
scribed, the immigration officer in charge may order that the
sum of money so deposited be forfeited and thereupon it is
forfeited and where the person or persons concerned leave
Canada within the prescribed time the money deposited
shall be returned, less any expenses for detention, mainten
ance, treatment or transportation or otherwise incurred by
Her Majesty respecting such person or persons or any of
them.
The respondent is a citizen of India who
arrived in Canada on May 24, 1972 and was
examined by an immigration officer, who made
a report under section 22 of the Immigration
Act reading as follows:
1. Pursuant to Section 22 of the Immigration Act, I have to
report that I have examined NATHI RAM a person seeking to
come into Canada as a NON-IMMIGRANT. In my opinion, he is
not a Canadian citizen or a person who has acquired Canadi-
an domicile.
2. I am also of the opinion that it would be contrary to the
Immigration Act and Regulations to grant his admission to
Canada as a NON-IMMIGRANT because
(a) he/she is a member of the prohibited class of persons
described in paragraph 5(t) of the Immigration Act in that:
he cannot or does not fulfill or comply with the conditions
or requirements of sub-section 63(1) of the Immigration
Act in that, upon being directed to do so by the Immigra
tion Officer-in-charge at a port of entry (namely Toronto
International Airport), he failed to deposit with him one
thousand dollars ($1,000.00), the sum deemed necessary
by that Officer-in-charge as a guarantee that he would
leave Canada within the time prescribed by that Officer-
in-charge as a condition of entry.
At the resulting inquiry before a Special
Inquiry Officer, the section 22 report was read
and explained to the respondent but, thereafter,
his counsel took the objection that the
section 22 report was a nullity and that the
Special Inquiry Officer had, therefore, no
"jurisdiction" to hold the inquiry. The Special
Inquiry Officer, nevertheless, proceeded with
the inquiry but the respondent, on the advice of
counsel, answered no questions and put no evid
ence or information before the Special Inquiry
Officer. The Special Inquiry Officer, thereupon,
made a deportation order against the respondent
on the ground that
You are a member of the prohibited class of persons
described in paragraph 5(t) of the Immigration Act in that
you cannot or do not fulfil or comply with the conditions or
requirements of subsection 63(1) of the Immigration Act in
that upon being directed to do so by the Immigration Officer
in Charge at the Port of Entry, namely Toronto International
Airport, you failed to deposit with him $1,000.00, the sum
deemed necessary by that officer in charge as a guarantee
that you would leave Canada within the time prescribed by
that officer in charge as a condition of entry.
The following part of the Reasons given by
the Immigration Appeal Board for its decision
setting aside this deportation order would seem
to explain the basis for that decision:
The present Section in the Immigration Act, namely, Section
63(1) was previously Section 67(1) of the Immigration Act.
This Section as a ground for deportation first came to the
attention of the Board in the appeal of Hugo De Jesus
Garces ALVAREZ V. The Minister of Manpower and Immi
gration, I.A.C. 70-695, April 15, 1970, unreported, in which
the writer in Reasons for Judgment stated:
This section, it is noted, only applies to "any non-immi
grant or organization of non-immigrants". The appellant
was neither; he was a person seeking entry into Canada as
a non-immigrant and as this section obviously does not
apply in the appellant's case, this ground in the order is
invalid and not made in accordance with the Immigration
Act and Regulations thereunder.
In Reasons for Judgment in the appeal of Prem Chand
SHARMA V. The Minister of Manpower and Immigration,
I.A.C., 70-3300, December 14, 1970, unreported, Chairman
Miss Scott stated:
In Sanchez v. Minister of Manpower and Immigration
(I.A.B. May 1, 1970, unreported) the Board, basing its
reasoning on Alvarez, held that a section 23 report based
solely on section 67(1) of the Act was invalid, and conse
quently all proceedings thereafter were a nullity. This
precedent provides a further ground for allowing the
present appeal.
The Board has, since the date of these decisions, on
numerous occasions, followed the principle enunciated in
these decisions and as a result has allowed the appeals
where the sole ground in the order is based on Section 63(1)
of the Immigration Act.
Reference is made in the Reasons in this case to
an earlier case in which a deportation order was
quashed on the ground that the immigration
officer had acted arbitrarily in demanding a
"bond" before permitting entry to Canada but it
was held that such ground did not apply in this
case because the respondent did not provide
any information to the Special Inquiry Officer
regarding his financial circumstances.
The ground for the Immigration Appeal
Board's decision in this case is stated in the
Board's Reasons as follows:
It does, however, allow the appeal on the basis that
Section 63(1) as it now appears in the Immigration Act is
not a valid ground for deportation. The appeal is, therefore,
allowed under Section 14 of the Immigration Appeal Board
Act.
The sole question that has to be decided on
this appeal is, therefore, whether a person seek
ing to come into Canada as a non-immigrant is
entitled to be admitted to Canada even though
the immigration officer in charge at the port of
entry at which he has presented himself has
required that person to deposit with him a sum
of money that "he deems necessary" as a guar
antee that that person will leave Canada within
the time prescribed as a condition for entry and
that person has failed to make that deposit.
No question has been raised on the appeal as
to whether, in this case, the requirement was
duly made as contemplated by section 63(1). If
any challenge had been made by the respondent
to the factual basis for the deportation order,
the burden of proving it would, presumably,
have been on the respondent by virtue of sec
tion 26(4) supra. As already indicated, the
respondent did not avail himself of the opportu
nity given to him to put evidence or other infor
mation before the Special Inquiry Officer.l'
The only basis for the Immigration Appeal
Board's conclusion that "Section 63(1) as it now
appears in the Immigration Act is not a valid
ground for deportation" that I have been able to
find in the Reasons of the Board is that that
provision only applies to a "non-immigrant" and
does not, therefore, apply to "a person seeking
entry into Canada as a non-immigrant".
As a practical matter, the only effect that
section 63(1) can have is to authorize the immi
gration officer in charge at a port of entry, after
he has satisfied himself that a person "arriving
at such port" may be allowed to enter Canada
as a non-immigrant, to require that person to
deposit money as a guarantee.
What the Immigration Appeal Board appears
to be saying is, however, that a.person seeking
to be allowed to enter as a non-immigrant does
not become a non-immigrant until after he has
been allowed to enter Canada and, as section
63(1) can only be invoked against a "non-immi
grant", it cannot be invoked against him before
a section 22 report is made. If that view is
correct, section 63 can have little, if any, effect.
In my opinion, there can be no doubt, on a
fair reading of section 63(1), that Parliament
intended, by that provision, to confer a discre
tionary authority on the immigration officer in
charge at a port of entry to require a deposit by
way of guarantee from any person "arriving at
such port" after he has otherwise satisfied him
self that such person may be allowed entry as a
non-immigrant and that meaning must be given
effect to even if there has been some imprecise
use of the word "non-immigrant" having regard
to the arbitrary meaning that has been given to
it by section 2. If it does not have that meaning,
it does not, in my view, have any practical
meaning in the context of the scheme set up by
the Immigration Act and, in my view, when
such a provision can be given a workable mean
ing, that meaning must be given to it whether or
not those interpreting the Act have reservations
concerning, or actively disagree with, the policy
incorporated in the provision.
Furthermore, in my opinion, the meaning that
I have indicated is the meaning that flows as the
natural result of the words used in the provision
having regard to the arbitrary definition of the
word "non-immigrant". Section 7(1) provides
that persons in the classes designated therein
may be allowed to enter Canada "as non-immi
grants". A person must, therefore, be in one of
those classes before he may be admitted. Sec
tion 2 defines "non-immigrant" to mean a
person "who is a member of any of the classes
designated in subsections 7(1) and (2)". It fol
lows that a person must be a "non-immigrant"
before he is admitted. There cannot, therefore,
in my opinion be any warrant for saying that the
respondent in this case was not a "non-immi
grant ... arriving" at the port of entry when he
was required to make the deposit that he failed
to make.
It follows that, when the respondent did not
comply with the requirement to make the depos
it he was a person who did not "fulfil or comply
with one of the ... requirements of this Act"
and that his admission to Canada was prohibited
by section 5(t) of the Immigration Act. 2
I am of opinion, therefore, that the appeal
should be allowed, that the decision of the
Immigration Appeal Board should be set aside
and that the deportation order should be res-
tored, and I am further of opinion that this
Court should, as authorized by section 52 of the
Federal Court Act, read with section 15 of the
Immigration Appeal Board Act, direct that the
deportation order be executed as soon as
possible.
I have not overlooked the respondent's
request that the matter be referred back to the
Immigration Appeal Board to allow the respond
ent to adduce further evidence and to enable the
Board to make a decision under section 15 of
the Immigration Appeal Board Act. The appeal
to this Court is, however, an appeal on a ques
tion of law or jurisdiction and this Court must
restrict its judgments accordingly. If there were
matters that had been placed before the Immi
gration Appeal Board but not dealt with because
of the position taken by it on the point in
respect of which error has been found, the
respondent might, of course, have been entitled
to the disposition that he seeks of the matter,
but, in the absence of any such matters having
been left undisposed of by the Board, I am of
the view that this Court can take no action in
respect of such request.
* * *
MACKAY D.J. concurred.
* * *
SWEET D.J.—Concurring, as I do, with the
reasons of The Honourable The Chief Justice
and with the result he finds, I would, neverthe
less, make the following comments.
If this respondent were entitled to enter and
remain in Canada it would only be by virtue of
subsection 7(1) of the Immigration Act. That
subsection lists a number of categories of per
sons who may be allowed to enter. However,
persons falling into the classifications desig
nated in subsection 7(1) would not be admitted
if they come within the prohibited classes set
out in section 5. One of those prohibited classes
is,
5. (t) persons who cannot or do not fulfil or comply with
any of the conditions or requirements of this Act or the
regulations or any orders lawfully made or given under this
Act or the regulations.
Subsection 63(1) provides:
The immigration officer in charge at a port of entry may
require any non-immigrant or group or organization off non-
immigrants arriving at such port to deposit with him such
sum of money as he deems necessary as a guarantee that
such non-immigrant or group or organization of non-immi
grants will leave Canada within the time prescribed by him
as a condition for entry.
The respondent was required to deposit
$1000 pursuant to that subsection but failed to
do so.
In allowing the respondent's appeal from the
deportation order made by the Special Inquiry
Officer, the Immigration Appeal Board followed
a line of its decisions commencing with Alvarez
v. The Minister of Manpower and Immigration
I.A.C., 70-695. That was also a case where the
appellant had been required to deposit a sum of
money but had failed to do so.
In its decision in this case the Board quoted
from the Alvarez case the following:
This section, it is noted, only applies to "any non-immigrant
or organization of non-immigrants". The appellant was nei
ther; he was a person seeking entry into Canada as a
non-immigrant and as this section obviously does not apply
in the appellant's case, this ground in the order is invalid and
not made in accordance with the Immigration Act and
Regulations thereunder.
The Board also referred to its decision in
Sharma v. The Minister of Manpower and Immi
gration I.A.C. 70-3300, quoting:
In Sanchez v. Minister of Manpower and Immigration
(I.A.B., May 1, 1970, unreported) the Board, basing its
reasoning on Alvarez, held that a section 23 report based
solely on section 67(1) of the Act was invalid, and conse
quently all proceedings thereafter were a nullity. This prece
dent provides a further ground for allowing the present
appeal.
The "section" 67(1) referred to was the pre
decessor of the subsection 63(1).
The Board apparently was of the view that
when "non-immigrant" is used in the Act it does
not mean a person seeking entry but only a
person who has been permitted entry. I do not
share that view.
"Non-immigrant" is defined in section 2 of
the Act as "a person who is a member of any of
the classes designated in subsections 7(1) and
(2)." In this there is nothing expressed nor
implied to the effect that to come within that
definition a person must not only be a member
of one of the classes designated but must also
have been allowed to enter.
This in my opinion has confirmation from the
wording of subsection 63(1):
The immigration officer ... may require any non-immigrant
... arriving ... to deposit ...
The use of the word "non-immigrant" with the
word "arriving" seems to me to emphasize that
on arrival, and prior to being allowed to enter, a
person who is a member of any of the classes
designated in subsections 7(1) and (2) is at that
time, namely on arrival, a "non-immigrant"
within the meaning of the statute.
Paragraph (f) of section 45 is:
the obligations and duties of transportation companies to
ensure that immigrants or non-immigrants being carried to
Canada by them are not within the prohibited classes and
the medical examination and records of immigrants and
non-immigrants carried by such companies to Canada;
Thus the word "non-immigrants" is used to
describe persons being carried to Canada and
persons "being carried" to Canada would not
yet have arrived in Canada.
I would allow the appeal.
* * *
MACKAY D.J. concurred.
I do not see anything in the other position taken by the
respondent that the Special Inquiry Officer had no "jurisdic-
tion" to hold the inquiry. Presumably this claim is based on
the proposition that a failure to put up a deposit as required
by section 63(1) cannot be a basis for refusal of admission
and is not an independent ground of attack. In any event, it
would seem to me that, even though the section 22 report is
mistakenly based on an invalid ground for refusing admis-
sion, the Special Inquiry Officer must have "jurisdiction" to
hold an inquiry so that he may let the person come in to
Canada, as contemplated by section 27(2), if there is no
legal ground for refusing him admission.
2 I am aware that the Board said in its decision in the
Sharma case, which it delivered on December 14, 1970, that
the deposit of a bond provided for by the provision under
discussion "is a requirement by an immigration officer in
charge, and not a requirement of the Immigration Act or
Regulations". In my view, this is an unduly mechanical
reading of the provision. I cannot escape the conclusion
that, when Parliament authorizes an officer to require a
deposit from a non-immigrant arriving at a port of entry,
there is a clear implication that a non-immigrant must make
the deposit, when so required, as a condition to entry. In any
event, it is to be noted that section 5(t) places in the classes
of prohibited persons, not only persons who cannot or do
not fulfil or comply with any of the conditions or require
ments of the Act or Regulations, but also persons who
cannot or do not fulfil or comply with orders lawfully made
or given under the Act or Regulations.
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.