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A-42-80
Harnek Singh Grewal (Applicant)
v.
Minister of Employment and Immigration (Respondent)
Court of Appeal, Pratte, Heald and Le Dain JJ.— Vancouver, May 7, 1980.
Judicial review — Immigration — Applicant left Canada pursuant to an exclusion order, and for a period of twelve months thereafter was precluded from entering the country without the Minister's consent — Applicant attempted to re-enter Canada but was excluded by order of an Adjudicator made more than twelve months after applicant had left Canada, as a person who did not have the consent of the Minister to enter Canada and who was a member of the class of inadmissible persons described in s. 19(1)(i) of the Immi gration Act, 1976 at the time of his examination by an immigration officer — Whether the second exclusion order was properly made — Application granted — Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 19(1)(i), 32(5), 57(2) — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
APPLICATION for judicial review. COUNSEL:
R. O. Rothe for applicant. A. D. Louie for respondent.
SOLICITORS:
Rothe, Lipetz, Elias, Raynier & Pinsky, Van- couver, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment of the Court delivered orally in English by
PRATTE J.: The applicant comes from India. He sought to enter Canada as a visitor on January 2, 1980, and was then excluded by an immigration officer who reported him to a senior immigration officer pursuant to subsection 20(1) of the Immi gration Act, 1976, S.C. 1976-77, c. 52. An inquiry followed at the conclusion of which, on January 24, 1980, an Adjudicator pronounced an exclusion order against the applicant on the sole ground that he was a person described in paragraph 19(1)(i) of
the Immigration Act, 1976.' That is the order against which this section 28 application is directed.
It is common ground that the applicant did not have the consent of the Minister to come into Canada and was a member of the class of inad missible persons described in paragraph 19(1)(i) on January 2, at the time of his examination by an immigration officer. Indeed, he had left Canada on January 10, 1979, after another exclusion order had been made against him and, for a period of twelve months following that date, was precluded by subsection 57(2) z from coming into the country without the consent of the Minister. However, that situation had changed on January 24, 1980, when the Adjudicator made the order under attack. At that time, more than twelve months had expired since the applicant had left Canada and he had, as a consequence, ceased to be a member of the inadmissible class described in paragraph 19(1)(i).
We are all of the view that, in those circum stances, the Adjudicator could not legally make an exclusion order against the applicant on the ground that he was a person described in para graph 19(1)(i). In our opinion, under subsection 32(5), the Adjudicator must determine if the person seeking to come to Canada "is", at the time he makes his decision, a member of an inadmiss ible class.
The application will therefore be granted, the exclusion order made against the applicant on
I Paragraph 19(1.)(i) reads as follows:
19. (1) No person shall be granted admission if he is a
member of any of the following classes:
(1) persons who, pursuant to section 57, are required to obtain the consent of the Minister to come into Canada but are seeking to come into Canada without having obtained such consent.
z Subsection 57(2) reads as follows:
57....
(2) Subject to section 58, where an exclusion order is made against a person, the person shall not, after he is removed from or otherwise leaves Canada, come into Canada without the consent of the Minister at any time during the twelve month period immediately following the day on which that person is removed from or otherwise leaves Canada unless an appeal from the order has been allowed.
January 24, 1980, will be set aside and the matter will be referred back for adjudication on the basis that, under section 32(5), an exclusion order cannot be made against a person who is not, at the time of the Adjudicator's decision, a member of an inadmissible class.
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