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A-490-76
Vitalina Candelaria Pineda Peralta de Morataya, Rosa Amanda Morataya, Mario Efrain Morataya and Maria Elisabeth Morataya (Applicants)
v.
Minister of Manpower and Immigration (Respondent)
Court of Appeal, Pratte and Le Dain JJ. and Hyde. D.J.—Montreal, September 27, 1976.
Judicial review—Immigration—Appeal against inclusion in deportation order pursuant to s. 34 of the Immigration Act— Interpretation of the wording of s. 34—Immigration Act, R.S.C. 1970, c. I-2, s. 34—Federal Court Act, s. 28.
Applicants were included, pursuant to section 34 of the Immigration Act, in deportation order made against Efrain Morataya-Godoy.
Held, the order is quashed. The applicants were not depend ents of Efrain Morataya-Godoy. The Special Inquiry Officer must have interpreted section 34 to include members of a family on whom other members are usually dependent. In fact the applicants were not financially dependent on Efrain Mora- taya-Godoy during their stay in Canada.
APPLICATION for judicial review. COUNSEL:
Florent Philibert for applicants. G. R. Léger for respondent.
SOLICITORS:
Legal Aid, Montreal International Airport, Mirabel, for applicants.
Deputy Attorney General of Canada for respondent.
The following is the English version of the reasons for judgment of the Court delivered orally by
PRATTE J.: Applicants challenge the decision of a Special Inquiry Officer, made under section 34 of the Immigration Act', which ordered that they be included in the deportation order made against Efrain Morataya-Godoy.
' R.S.C. 1970, c. I-2.
In our opinion, the decision a quo must be set aside because, after referring to the facts estab lished by the Special Inquiry Officer, we feel that applicants did not depend on Mr. Efrain Mora- taya-Godoy for their support. If the Special Inqui ry Officer decided otherwise, he did so because he felt that the words "a member of a family upon whom other members are dependent for their sup port" in section 34(1) meant "members of a family on whom other members ordinarily and usually depend for their support". This explains why he ignored the undisputed fact that, during their stay in Canada, applicants were not financially depend ent on Mr. Efrain Morataya-Godoy. In our opin ion, the Special Inquiry Officer interpreted section 34(1) incorrectly. To determine whether a person is dependent on another within the meaning of this section, it is necessary to take into consideration not only the ordinary and usual circumstances but also, and most importantly, those prevailing when the person is in Canada.
For these reasons, the decision a quo is set aside.
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