The Queen v. Leong Ba Chai

Under the authority of s. 38 of the Immigration Act 93, R.S.C. 1927) which allows the Governor-in-Council, by proclamation or order, to prohibit or limit in number, for a stated period or permanently, the landing in Canada of immigrants belonging to any nationality or race, the Governor-in-Council made the following regulation:- It will therefore be seen that, if the immigrant otherwise complies with the provisions of the Immigration Act, he may be admitted if he is the unmarried child, under twentyone years of age of any Canadian citizen, legally admitted and resident in Canada.

The father Leong Hung Hing was born in China in 1884 and he married his first wife Fong Shee in June, 1911, in China, and she died in 1936. Hung Hing came to Canada S.C.R.

and was admitted in September, 1911, and visited China in 1926 and also in 1932. Having had no children of his union et al with Fong Shee, he contracted in 1926, on his first visit to China, an alleged second marriage with a Chinese woman oHA in accordance with local custom. To Hung Hing and this woman, two children were born, one of whom was the applicant respondent in the present case, and whose admission to Canada is now applied for.

Hung Hing maintained not only his wife but the children and their mother, by forwarding annually from $500 to $600, while he was here employed as a cook in Vancouver. In fact, he lived some two years with them in the one establishment from 1932 to 1934. Hung Hing was granted a certificate of Canadian citizenship in February, 1951, and it was during the following month that he applied to the Immigration Officer-in-Charge in Vancouver for the admission to Canada of Ba Chai. In April of the same year, he was advised by the Immigration Officer that his application had been rejected since Ba Chai was, in the view of the Officer, an illegitimate child.

In order to prove the Chinese law, the respondent called Mr. Harry Fan who lives in Vancouver, and who is a graduate of the University of British Columbia and also a graduate of Chutow University Law School, where he studied during a period of three years, and he is therefore qualified to practise law in Shanghai, China.

Mr. Fan explained that in China, where the civil law was codified in 1930, a child born out of wedlock is an illegitimate child, but the law provides for legitimation.

This legitimation may take place by the subsequent marriage of the natural parents, and secondly, by 'acknowledgment.

He stated that there are three ways of acknowledgment, but it is necessary to refer to the third only which is by the maintenance by the father of the natural child. Article 1065 of the Civil Code of China reads as follows:- During the argument, Mr. Anderson acting on behalf the applicant, was informed by the Court that he did not need to elaborate any further the questions of domicile of the father, of the validity of the second marriage, of the proof 'of the foreign law, and of the illegitimacy of the child. The Court was of opinion, as the courts below found, that if the father changed his domicile in 1951 when he became a Canadian citizen, he nevertheless had not abandoned his Chinese 'domicile at the time his child was born in 1933. The Court also thought that whether the second marriage was valid or not, the child had become from the time of his birth a legitimate child, since the law, which was sufficiently proven, had a retroactive effect owing to the fact that the child was legitimated by acknowledgment. It was therefore found unnecessary to discuss the question as to whether the word "child" included an illegitimate child.

It naturally follows that the applicant being the legitimate son, under twenty-one years of age, of a Chinese citizen, legally admitted to and resident in Canada, does not fall within the ban of the regulation, but may be admitted to the country, if he otherwise complies with the provisions of the Immigration Act.

It is claimed by the appellants that a writ of mandamus does not lie, and that no order may be issued directing the Immigration Officer to consider the -application for admission of Ba Chai into Canada as an immigrant. With this, S.C.R.

I disagree. What is asked is not the admission of Ba Chai into Canada, but the consideration of his application which must be examined in the light of the Immigration Act. This has been illegally denied.

The more convenient, beneficial and effective mode of redress, is by way of mandamus, as there is no other legal specific remedy for enforcing the applicant's right to a hearing before the Board and the Minister. Now that it is established that Ba Chai is the legitimate child of Hung Hing, the Immigration Officer should determine whether he otherwise complies with the provisions of the Immigration Act.

A quite similar was heard by this Court in 1904 (Drysdale v. Dominion Coal Co. (1)).

The Commissioner of Mines for Nova Scotia had refused to take into consideration an application of the Dominion Coal Company, concerning a dispute between that company and one John Murray, as to their respective rights to ceriain leases of Crown lands. It was held that the company was entitled to a determination of those rights, and that the remedy was by way of mandamus.

It may also be useful to consider what was said by Locke J. in Joy Oil v. The King (2), where the record, on a petition of right, was returned to the Commodity Prices Stabilization Corporation, so that it could deal with the claims for subsidies advanced in the action.

It has been held several times that when a duty has to be performed by the Crown, the courts cannot claim any power to command the Crown (The Queen v. Lords Commissioners of the Treasury (3); Short & Mellor, The Practice of the Crown Office, 2nd ed. 1908, page 202). This is not the case in the present instance.

Other considerations would have to be taken into account if the Immigration Officer were a servant of the Crown, acting in his capacity of servant and liable to answer only H4