Re Ho Kit Cheung,

• Date: 18 January 1968
• Court: Court of Appeal (British Columbia)

Canada, Supreme Court of British Columbia.

Court of Appeal of British Columbia.

(Macdonald J.)

(Davey C.J.; MacLean and Bull JJ.A.)

Re Ho Kit Cheung.

Aliens Expulsion of Procedure of expulsion Jurisdiction of Special Inquiry Officer Foreign crew member remaining in Canada after departure of ship Application for immigrant status Whether application deprived Special Inquiry Officer of jurisdiction to hold inquiry concerning deportation The law of Canada.

The Facts.This was an application for a writ prohibiting a Special Inquiry Officer of the Department of Citizenship and Immigration from continuing an inquiry under the Immigration Act concerning the applicant's deportation, and for a writ of mandamus requiring the Department to examine his application for admission to Canada pursuant to the Act. The applicant, Ho Kit Cheung, was a Chinese citizen. He had come into Canada in 1966, as a member of a ship's crew. After his arrival he was informed that the ship had been sold and if he wished to continue to serve in her he would have to enter into articles with the new owners. The applicant decided that he would prefer to stay in Canada. The vessel sailed without him on 1 February 1966, and the shipping agents arranged a flight to Hong Kong for the applicant, scheduled to depart on 2 February. Cheung refused to leave, and the Department of Citizenship and Immigration received on the same day a letter from his solicitor stating that he wished to file an application for permanent admission to Canada and to be allowed to make the application in Canada instead of returning to Hong Kong to do this. The applicant was arrested on 8 March 1966 as a person coming within the description of Section 19(1) (e)(x) of the Immigration Act and informed that there would be an inquiry before a Special Inquiry Officer concerning his deportation. Section 19 of the Act provides in part:

(1) Where he has knowledge thereof, an immigration officer shall send a written report to the Director [of Immigration], with full particulars, concerning

(e) any person, other than a Canadian citizen or person with Canadian domicile, who

(x) came into Canada as a member of a crew and, without the approval of an immigration officer or beyond the period approved by such officer, remains in Canada after the departure of the vehicle on which he came into Canada.

(2) Every person who is found upon an inquiry duly held by a Special Inquiry Officer to be a person described in subsection (1) is subject to deportation.

The applicant contended that the Special Inquiry Officer had no jurisdiction to proceed under Section 19 because he had entered Canada as a non-immigrant under the provisions of Section 7 (1) of the Act and had subsequently ceased to have that status under the provisions of Section 7 (3) and had become a person seeking admission to Canada as a result of his solicitor's letter to the Department. Section 2 (s) defines the word non-immigrant as a person who is a member of any of the classes in Section 7 (1) and (2). Section 7 provides in part:

(1) The following persons may be allowed to enter and remain in Canada as non-immigrants, namely,

(j) Members of crews entering Canada or who, having entered, are in Canada for shore leave or some other legitimate and temporary purpose

(3) Where any person who entered Canada as a non-immigrant ceases to be a non-immigrant or to be in the particular class in which he was admitted as a non-immigrant and, in either case, remains in Canada, he shall forthwith report such facts to the nearest immigration officer and present himself for examination at such place and time as he may be directed and shall, for the purposes of the examination and all other purposes under this Act, be deemed to be a person seeking admission to Canada.

(4) Where a person...