Judgments

[1994] 1 F.C. 232

A-120-91

Dai Nguyen of Groupe Solidarité, Luong Manh Nguyen (Appellants) (Applicants)

v.

The Minister of Employment and Immigration (Respondent) (Respondent)

Indexed as: Nguyen v. Canada (Minister of Employment and Immigration) (C.A.)

Court of Appeal, Isaac C.J., Hugessen and Stone JJ.A.—Winnipeg, June 1; Ottawa, July 12, 1993.

Citizenship and Immigration — Immigration practice — Appeal from denial of certiorari, mandamus — Appellant, L.N., awaiting repatriation to Vietnam in Hong Kong detention camp as not meeting definition of Convention refugee — CIC telexing Hong Kong office Canadian sponsors filing undertaking of support — Hong Kong visa officers not sending application for landing form to L.N. as inaccessible to Canadian officials, having failed Hong Kong Convention refugee screening — Although no decision to which certiorari applied, Minister and officials having duty to furnish application for landing form upon request, express or implied — Request implied from sponsorship undertaking — As L.N. not free agent, not expected to appear in person — Practice according to Immigration Manual to send forms — Cannot avoid duty by asserting will be prevented from carrying it out without making attempt.

Judicial review — Prerogative writs — Mandamus — Appeal from denial of mandamus requiring M.E.I. to process sponsorship application — Visa officers in Hong Kong not sending application for landing form to appellant awaiting repatriation to Vietnam in detention camp, although advised undertaking of support filed, as believed appellant, L.N. inaccessible because failed Hong Kong screening for Convention refugee status — Normal practice according to Immigration Manual to send form — Failure to comply with Manual, mere administrative directives, not necessarily breach of duty — Manual sets out sound administrative practice — Implied duty to furnish application form on request, express or implied — Request implied from sponsorship undertaking — Minister, officials cannot avoid duty by asserting will be prevented from carrying it out without trying.

This was an appeal from the dismissal of a motion for orders (1) setting aside the respondent’s decision that the appellant, Luong Manh Nguyen (L.N.), must pass Hong Kong screening to come to Canada as a refugee or member of a designated class and (2) requiring the respondent to process the sponsorship of the appellant.

The appellant, L.N., arrived in Hong Kong from Vietnam after the cut-off date for the automatic grant of de facto refugee status earlier conferred on Indochinese asylum seekers. He was “screened out” by the Hong Kong authorities as a person who did not satisfy the Convention refugee definition and is now awaiting repatriation in a detention camp in Hong Kong. His brother, a Canadian citizen, as part of a group of church-based persons and organizations, seeks to sponsor his immigration to Canada. The sponsorship application was made pursuant to the Indochinese Designated Class Regulations, which exempt the Indochinese Designated Class from certain requirements normally imposed on prospective immigrants i.e. having to fall within the definition of Convention refugee. The Winnipeg Office of Employment and Immigration Canada telexed the Office of the Commissioner for Canada in Hong Kong that the sponsorship application had been made, but the latter did not send an application for landing form to L.N., saying that he was inaccessible to Canadian officials because he had failed Hong Kong screening for Convention refugee status. The Immigration Manual provides that normally upon receipt of the telex advising the overseas post that a sponsorship application has been approved and an undertaking of support signed, the overseas post will send an application for landing form to the individual. The appellants argued that (1) since the Canadian Government has declared an intention to facilitate the entry into Canada of Indochinese, it is wrong to impose a pre-condition that they first be found by another state to be Convention refugees; (2) that the Minister was under a legal duty to seek out L.N. in the detention camp and provide him with the landing application form.

The Motions Judge held that the Minister had made no decision in respect of which certiorari could lie, and the respondent was under no duty in respect of which an order of mandamus should be made.

Held (Isaac C.J. dissenting), the appeal should be allowed.

Per Hugessen J.A. (Stone J.A. concurring): There was no decision to which certiorari could apply.

The Minister’s failure to provide an application for landing form was a breach of his duty. The Immigration Manual is merely a set of administrative directives and does not have the force of law. Failure to comply therewith does not necessarily involve a breach of duty which could give rise to an order of mandamus. But not all duties imposed by law are express. An implied duty is nonetheless enforceable. The Immigration Manual indicates sound administrative practice, and the way in which the Act and Regulations are applied “on the ground”. Although the Act and Regulations make it seem that an application for landing must always precede a sponsorship, the reality, as confirmed by the Manual, is that the undertaking of sponsorship is invariably executed first and the application for landing comes later.

The visa officers in Hong Kong were under a duty to furnish L.N. with an application for landing upon request. That there was no express request for the form does not mean that there was no duty. It was implied from the sponsorship undertaking that the appellant wished to apply for landing. The Manual shows that such inference is drawn as a matter of course. The sponsorship undertaking also shows that the appellant was not a free agent: his address was the detention camp. In those circumstances he could not be expected to present himself at the Commission office. The Immigration Manual establishes that it is current practice to send the application form. Persons in the appellant’s position are entitled to send and receive letters. Therefore, the Minister had a request for the form and the means to give effect thereto. The Minister and his officials cannot avoid that duty by simply asserting that they will be prevented from carrying it out without even having tried to do so. An officer’s view that an application is likely to be unsuccessful cannot be an excuse for refusing to allow the application to be made. Secondly, it is by no means clear that access would inevitably be denied to Canadian immigration officials if it was sought.

Per Isaac C.J. (dissenting): There was no decision against which certiorari could be given. The Minister did not decide that the appellant was required to pass the Hong Kong screening to apply for an immigrant visa. He made no decision. His inaction was simply as a result of the fact that no application for landing had been made.

Nor did the Minister refuse to process the sponsorship application. The sponsorship application was not cancelled, but was held in abeyance pending a decision by Hong Kong authorities as to whether L.N. would be screened in. Since there was no application for landing, there was nothing to sponsor and no duty to consider. The Indochinese Designated Class Regulations are predicated on there being an application to enter Canada. The Minister cannot be compelled to process the sponsorship application because there was nothing to which the sponsorship application could attach.

The argument that, since the Minister could have complied with the Manual he was obliged to do so, was based on the assumption that the internal directives (Immigration Manual) could form the basis of a public duty sufficient to support the issue of a writ of mandamus. That assumption was false. The writ of mandamus is an extraordinary and discretionary remedy which lies to compel the performance of a legal duty, found either in a statutory provision or common law. Policy directives are no more than directions and are unenforceable by members of the public.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Immigration Act, R.S.C., 1985, c. I-2, s. 2 (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 1).

Immigration Regulations, 1978, SOR/78-172, ss. 7, 8, 9, 14.

Indochinese Designated Class Regulations, SOR/78-931, s. 5 (as am. by SOR/89-408, s. 4).

United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6.

CASES JUDICIALLY CONSIDERED

APPLIED:

Minister of Manpower and Immigration v. Tsiafakis, [1977] 2 F.C. 216; (1977), 73 D.L.R. (3d) 139 (C.A.); Jiminez-Perez v. Minister of Employment and Immigration, [1983] 1 F.C. 163; (1982), 45 N.R. 149 (C.A.); Choi v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 763; (1991), 15 Imm. L.R. (2d) 265; 139 N.R. 182 (C.A.).

CONSIDERED:

Mohammad v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 363; (1988), 55 D.L.R. (4th) 321; 91 N.R. 121 (C.A.).

REFERRED TO:

Martineau et al. v. Matsqui Institution Inmate Disciplinary Board, [1978] 1 S.C.R. 118; (1977), 74 D.L.R. (3d) 1; 33 C.C.C. (2d) 366; 14 N.R. 285.

AUTHORS CITED

Jones, David Phillip and Anne S. de Villars, Principles of Administrative Law, Toronto: Carswell Co. Ltd., 1985.

APPEAL from dismissal of motion ((1991), 44 F.T.R. 78) for an order setting aside the respondent’s decision that Luong Manh Nguyen must pass Hong Kong screening to come to Canada as a refugee or member of a designated class and an order requiring the respondent to process the sponsorship undertaking. Appeal allowed.

COUNSEL:

David Matas for appellants (applicants).

Gerald L. Chartier for respondent (respondent).

SOLICITORS:

David Matas, Winnipeg, for appellants (applicants).

Deputy Attorney General of Canada for respondent (respondent).

The following are the reasons for judgment rendered in English by

Isaac C.J. (dissenting): This is an appeal from a decision of a Motions Judge in the Trial Division [(1991), 44 F.T.R. 78] which dismissed a motion by the present appellants for an order in the nature of certiorari to set aside the decision of the respondent that the appellant Luong Manh Nguyen must pass Hong Kong screening in order to come to Canada as a refugee or member of a designated class and an order requiring the respondent to process the sponsorship of the appellant Groupe Solidarité for the entry into Canada of the appellant Luong Manh Nguyen.

The learned Motions Judge held, on the materials before him, that the respondent had made no decision in respect of which certiorari could lie and was under no duty or obligation in respect of which an order of mandamus should be made.

FACTS

The appellant Luong Manh Nguyen is one of the scores of thousands of so-called “boat people” who left Vietnam in the years following the fall of the South Vietnamese Government in 1975. His brother, the appellant Dai Nguyen, is a Canadian citizen of Vietnamese origin. Dai Nguyen is part of a group of church-based persons and organizations which styles itself as the “Groupe Solidarité”, and which is interested in sponsoring the immigration of the appellant Luong Manh Nguyen to Canada.

The Group Solidarité made application in Winnipeg, in September, 1989, to sponsor the immigration to Canada of Luong Manh Nguyen and his family. The sponsorship application was made pursuant to the Indochinese Designated Class Regulations, SOR/78-931, as amended, which provide that people from certain countries of Indochina may be permitted to enter Canada without having to comply with the normal requirements for immigration and without having to fall within the definition of Convention refugees as provided for in the Immigration Act [R.S.C., 1985, c. I-2, s. 2(1) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 1)].

On September 20, 1989, a memorandum was sent by telex from the Winnipeg Office of Employment and Immigration Canada to the Office of the Commissioner for Canada in Hong Kong indicating that the sponsorship application had been made in relation to the appellant Luong Manh Nguyen. For reasons which have not been made clear to us, though nothing turns on it, the telex was apparently not received in Hong Kong until September 25.

On January 4, 1990, the sponsorship application “came up for processing”, as the immigration officials described it, in the Visa Section of the Office of the Commissioner for Canada in Hong Kong. Before setting out what happened to the sponsorship application, though, it is perhaps worthwhile to say a word at this point about the conditions in which would-be emigrants from Vietnam like Luong Manh Nguyen were living and which gave rise to the desire on the part of the Groupe Solidarité to sponsor Mr. Nguyen’s immigration to Canada.

It is well-known that after the fall of Saigon to the North Vietnamese forces in 1975, a large-scale exodus of asylum seekers took place. The first wave of asylum seekers inspired an international conference held under the auspices of the United Nations in 1979. The result of this conference was a broadly based decision by both countries of first asylum (i.e. the countries of first arrival after leaving Indochina) and countries of final resettlement to treat Indochinese asylum seekers as de facto refugees, even though many of them might not have met the definition of refugee as set out in the Geneva Convention [United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6]. Unfortunately, the agreement did not appear to be of long standing, for by the mid-to-late 1980s, many of the countries of final resettlement had begun to restrict entry to bona fide Convention refugees.

In the meantime, Canada had promulgated the Indochinese Designated Class Regulations just prior to the first international conference. As I have noted, their effect was to exempt members of the Indochinese Designated Class from certain of the requirements normally imposed on would-be immigrants.[1] Under these Regulations, Canada continued to accept comparatively large numbers of Vietnamese and other Indochinese immigrants, even as other countries began to limit the numbers that they would accept.

Because other countries began to limit the possibilities for resettlement, notwithstanding their earlier agreement to facilitate it, asylum seekers from the countries of Indochina began to accumulate in the countries of first asylum, which included Hong Kong, Malaysia and Singapore, to name the Commonwealth territories. This, in turn, led to the decision by these countries to establish arbitrary “cut-off” dates, after which they would accept no asylum seeker who did not meet the definition of Convention refugee. At the same time, they began the practice of attempting to divert from their territories, asylum seekers who were attempting to flee from Indochina.

To prevent the tragedies that were arising from this situation a second international conference on Indochinese refugees was convened under the auspices of the United Nations in Geneva, in June, 1989. To quote from the affidavit of Michael James Malloy, the Director General of Refugee Affairs at the Canada Employment and Immigration Commission:[2]

At that conference it was agreed that means, acceptable to all the countries involved, had to be found to protect Convention refugees. This had to be done, however, without encouraging persons who were not Convention refugees to risk their lives by taking to the sea in small boats in the hope of benefitting from refugee resettlement programmes.

The result of the 1989 conference was the adoption of a so-called “Comprehensive Plan of Action”, or “CPA”,[3] which involved a series of steps: first, those asylum seekers who had arrived in the country of first refuge before the cut-off dates were to be guaranteed resettlement. Secondly, attempts were to be taken to discourage the departure from Vietnam by clandestine means and instead, to encourage and facilitate the legal emigration of those who might not be Convention refugees. Thirdly, those asylum seekers who did manage to make their way to countries of first asylum after the cut-off dates were to be received and screened to determine whether they fell within the Geneva Convention on refugees. Those who did were to be accepted for immigration by countries of resettlement, while those who did not were to be repatriated.

Hong Kong, the territory to which the appellant Luong Manh Nguyen flew, established a cut-off date of June 16, 1988. However, he did not arrive there until after that date. Hence his case fell to be governed by the Comprehensive Plan of Action.

Mr. Nguyen failed to pass the screening for Convention refugee status and is now awaiting repatriation in a detention camp in Hong Kong. It presumably was this factor, i.e. the failure to pass the screening process, which led to the sponsorship application. In any event, because Mr. Nguyen had not passed the screening for Convention refugee status, the Visa Section of the Office of the Commissioner for Canada in Hong Kong declined to process the sponsorship application, i.e. to forward to him an application for landing in form IMM 8. The reason given was that administrative arrangements put in place by officials, including those in Canada and Hong Kong, since the coming into force of the Comprehensive Plan of Action, have made appellant Luong Manh Nguyen inaccessible to Canadian officials because he has failed screening for the Convention refugee status.

THE JUDGMENT BELOW

As I have noted, in the Court below the Motions Judge was asked to issue writs of certiorari and mandamus. The certiorari was to quash the Minister’s decision “that the Applicant Luong Manh Nguyen must pass Hong Kong screening in order to come to Canada as a refugee or member of a designated class”, and the mandamus was to compel the Minister “to process the sponsorship of the Applicant Groupe Solidarité for the Applicant Luong Manh Nguyen.”

The Motions Judge declined to grant either of the requested relief. His dispositive reasons read as follows:[4]

It is clear in my view that no decision has been made by the respondent. As expressed by counsel for the respondent, a “decision”, that the applicant, Luong Manh Nguyen, must pass Hong Kong screening in order to come to Canada as a refugee or member of designated class, must necessarily be made in relation to an application for landing. Since no such application was made, there can be no “decision” requiring the Hong Kong screening before the applicant had landed. In its best light this application is premature.

With respect to the application for a mandamus to process the sponsorship of the applicant Groupe Solidarité there is no duty in law to do so, but even if there were such a duty, the respondent has processed the sponsorship application to the extent that it is possible. It is suggested that a mandamus might issue requiring the respondent to attempt to forward both the sponsorship and the application to Luong Manh Nguyen, and although such an attempt might be meritorious, it is hardly the subject for a mandamus.

THE ISSUES

In their memorandum of fact and law, the appellants suggest that there are a number of issues involved in this case, including issues of unlawful delegation of administrative authority, legitimate expectation and retroactivity. In my view, however, the issue is a straightforward one: whether the Motions Judge was in error in refusing to grant prerogative relief in the circumstances of this case.

The essence of the appellants’ argument, as I understood it, is that since the Government of Canada has in the Indochinese Designated Class Regulations declared an intention to facilitate the entry into Canada of people from Indochina, regardless of whether or not they would otherwise be able to immigrate to Canada, it is wrong to impose as a pre-condition to their entering Canada that they first be found by another state to be Convention refugees. A subsidiary argument, based on materials filed with leave at the commencement of the hearing of this appeal (and which were apparently not raised before the Motions Judge), was that the respondent Minister was under an obligation to seek out the appellant Luong Manh Nguyen in the detention camp in Hong Kong and provide him with form IMM 8 in order that he could make an application for landing.

With respect to the first argument, I am of the opinion that the Motions Judge was right in saying that there was in this case no decision against which relief in the nature of certiorari could be given. The Minister did not decide that the appellant was required to pass Hong Kong screening in order to make application for an immigrant visa. On the contrary, as the Motions Judge pointed out (and as I have already noted), it is clear that no decision whatever had been made by him. The Minister’s inaction was simply a result of the fact that no application for admission to Canada had been made.

Nor did the respondent Minister refuse to process the sponsorship application. The uncontradicted evidence before the learned Motions Judge was that the sponsorship application was not cancelled but was held in abeyance pending a decision by Hong Kong authorities as to whether the appellant Luong Manh Nguyen was a “post-June 16 arrival” in Hong Kong and if so whether he would be “screened in”.[5] The position of the respondent Minister was, in effect, that since there was no application for landing by the appellant Luong Manh Nguyen, there was nothing to sponsor and therefore no duty to consider. Put another way, the Indochinese Designated Class Regulations are predicated on there being an application to enter Canada. Subsection 5(3) [as am. by SOR/89-498, s. 4] of the Regulations makes this quite clear:

5.…

(3) Where a member of the Indochinese Designated Class makes an application for an immigrant visa, a visa officer may issue an immigrant visa to him and his accompanying dependants, if …

That being so, the learned Motions Judge was in my opinion right in saying that the respondent Minister cannot be compelled to “process” the sponsorship application because there was nothing to which the sponsorship application could attach.

Of course, the reason that no application was made was because the appellant Luong Manh Nguyen was being held in the detention camp in Hong Kong. This leads to a subsidiary issue which was touched upon in the memoranda, but which was explored more fully at the hearing, namely whether there was an obligation on the part of the respondent Minister to try to make contact with Mr. Nguyen at the detention camp in order to enable him to make a formal application for admission to Canada.

As I have said, at the hearing before us, counsel for the appellants was given leave to file material which suggested that under Hong Kong law, Canadian officials might have been able to exert pressure whereby they could have gained access to Mr. Nguyen at the camp. Counsel says that this, coupled with the provisions of the Immigration Manual prepared for use by immigration officials by Employment and Immigration Canada which indicates that in the usual situation, there does exist a self-imposed obligation on the part of the Minister to try to make contact with the subject of a sponsorship application, imposed a legal duty upon the Minister to take positive steps to ensure that Mr. Nguyen was given the necessary materials to make an application for entry into Canada.

In other words, counsel argues that since the respondent Minister could have complied with the Immigration Manual, it was incumbent upon him to do so, and his failure thereto gives rise to grounds for prerogative relief. In support of this contention, counsel for the appellants relied on the decisions of this Court in Minister of Manpower and Immigration v. Tsiafakis, [1977] 2 F.C. 216; Jiminez-Perez v. Minister of Employment and Immigration, [1983] 1 F.C. 163, and Choi v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 763.

Attractive though it might be, I am unable to accept this contention for the reason that it is based on the assumption that the internal directives could form the basis of a public duty sufficient to support the issue of a writ of mandamus. It is well settled that the assumption is false. The writ of mandamus is an extraordinary and discretionary remedy which lies to compel the performance of a legal duty. In most instances, such a duty is grounded in a statutory provision (see, e.g. Jones and de Villars, Principles of Administrative Law (Toronto: Carswell, 1985), at page 366). In others, the writ will lie to require the performance of a duty owed at common law, but I have been unable to find a case, and none was cited, where the statement of normal departmental practice such as that in issue here, not being mandated either by the statute or regulation, can be said to have become elevated to the level of a principle of common law. In Mohammad v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 363, Heald J.A. writing for this Court reviewed the existing jurisprudence and stated at page 372:

In my view, these submissions cannot be given effect to. Insofar as the Department’s policy directives are concerned, the Martineau (No. 1)[6] case has established that policy directives, whether made pursuant to regulatory authority or general administrative capacity, are no more than directions and are unenforceable by members of the public.

Furthermore, the cases upon which counsel for the appellants relied to support his contention were decided on different facts. Upon a careful review of those decisions, I was unable to find in them any support for his contention.

Accordingly, I would dismiss the appeal, but without costs.

* * *

The following are the reasons for judgment rendered in English by

Hugessen J.A.: I have had the benefit of reading, in draft, the reasons for judgment proposed to be delivered by the Chief Justice. He has fully set forth the background, the relevant facts and the issues. I am in agreement with him with regards to his proposed disposition of the first issue, namely that there was no decision to which certiorari could apply.

With respect, however, I am in disagreement with the Chief Justice’s conclusion on the question of mandamus and on what he describes as the “subsidiary issue”, which was in fact argued by both sides at some length on the hearing of this appeal. That issue relates to the failure by the Minister to provide the appellant Luong Manh Nguyen with an application for landing (form IMM 8) so that, when duly completed, there would be in existence an application to which the sponsorship undertaking given by the other appellants, Dai Nguyen and Groupe Solidarité, could attach and which the Minister would then be required to process. In my view such failure amounted to a breach of duty.

The practice normally followed in these cases is set out in the Immigration Manual.[7] That document makes it quite plain that when persons such as the first two appellants apply to sponsor a named individual and that application is approved, the sponsoring group is to complete and sign an undertaking of support in form IMM 1300.[8] Such a form was in fact signed by the first two appellants in respect of the third appellant and his family.[9]

The manual goes on to provide, in paragraph 3.44(1), that where, as was the case here, the name and whereabouts of the person or family to be sponsored are known “the CIC will send a telex to the appropriate overseas post.” This too was done. Paragraph 3.45(1) then provides that “when an overseas post receives a named sponsorship telex from a CIC, the post will send an application form (IMM 8) to the individual(s)”.[10]

It is not in dispute that in the present case all but the last of these steps were followed to the letter. The visa officer in the Commission for Canada in Hong Kong did not send form IMM 8 to the appellant Luong Manh Nguyen upon receipt of the sponsorship telex in September, 1989. Accordingly, no application for landing was ever received and the sponsorship undertaking was never processed. In due course Luong Manh Nguyen was “screened out” by the Hong Kong authorities as a person who had arrived after June 16, 1988, and who did not satisfy the Convention refugee definition.

It is, of course, quite clear that the Immigration Manual by itself is nothing more than a set of administrative directives and, as such, does not have the force of law. Accordingly, failure to comply with the manual simpliciter does not necessarily involve a breach of duty such as could give rise to an order of mandamus. That is not an end of the matter, however. Not all duties imposed by law are express. An implied duty is nonetheless enforceable. At the very least, a document such as the Immigration Manual serves as evidence of what those charged with the administration of the Immigration Act and Regulations consider to be sound administrative practice. Nor is there any necessary discrepancy between such practice and the duty imposed by law.

At another level the Immigration Manual also serves as evidence of the way in which the Act and the Regulations are in fact applied “on the ground” as it were. The present case offers an excellent illustration: anyone reading the Act and Regulations would conclude that an application for landing must always precede a sponsorship. In my years in this Court, I have never seen that happen and the reality is invariably that the undertaking of sponsorship is executed first and the application for landing comes later. The manual abundantly confirms this practice.

This Court has never been hesitant to impose on immigration officers an implied duty to aid would-be immigrants where such duty may fairly be said to flow from the scheme of the Act and Regulations. In Jiminez-Perez v. Minister of Employment and Immigration,[11] the issue was whether a prospective immigrant was entitled, while in Canada, to apply for a decision exempting him from the requirement that he apply for a visa from outside the country. Le Dain J.A., speaking for the Court said:

Counsel for the Crown took the position, as I understood his argument, that there had not been a proper request for exemption, the implication being that such a request must be addressed in some other manner directly to the Governor in Council, and that in any event there could not be a duty to permit an application for landing to be made from within Canada unless and until such an exemption had been obtained. As I have indicated, I am of the opinion that administrative fairness requires that a request for exemption from the requirement of s. 9 be processed by the local immigration officials. I am further of the view that it is not sound to separate the application for landing from the request for exemption. The respondent Jiminez-Perez seeks to apply for landing from within Canada on the basis that he be granted an exemption from the requirement of section 9 on compassionate or humanitarian grounds. Since the Act contemplates that admission may be granted on this basis in particular cases, a prospective applicant is entitled to an administrative decision upon the basis of an application, and there is, therefore, a correlative duty to permit him to make the application. The application, including the request for exemption and the sponsorship of the application, must be considered and disposed of by decision, and not by an anticipatory attempt to avoid a decision because of its possible effect on the sponsor’s right to appeal under section 79 of the Act. [Emphasis added.]

In the earlier case of Minister of Manpower and Immigration v. Tsiafakis[12] an immigration officer had refused to furnish a form to a would-be sponsor because he was of the view that the sponsorship application would fail. Again, speaking for the Court, Le Dain J.A. said:

As I read the terms of section 31 as a whole, the question of whether a person is entitled to sponsor a certain individual for admission to Canada is an integral part of the over-all question to be determined upon the basis, at least in part, of an application in the prescribed form, namely, whether the individual may be admitted to Canada as a sponsored dependant. It follows, therefore, that a person who seeks to sponsor someone for admission to Canada has a right to make an application for his admission in the prescribed form and to have his right to sponsor determined upon the basis of such an application. Since such a right cannot be exercised unless the prescribed form can be obtained from the immigration authorities there is a correlative duty to provide the form. [Emphasis added.]

More recently still, in Choi v. Canada (Minister of Employment and Immigration),[13] the appellant had suffered prejudice through not being immediately given the proper form which, if it had been timely filed, would have resulted in his receiving a more favourable assessment. MacGuigan J.A., speaking for the Court, quoted the latter part of the above citation from Tsiafakis, supra, and said:

A similar correlative duty might, perhaps, be said to exist in the case at bar (the Motions Judge was, I believe, correct in inferring from the Act itself a right in claimants to apply), but, at the very least, when the Canadian Government, through its agents, undertakes to supply information to immigration applicants as to how to become immigrants, it assumes a duty to provide this information accurately. This does not imply that Canadian authorities must provide a detailed exegesis of Canadian immigration law and procedures, or legal advice to prospective immigrants as to the legal significance of the available options, but it does mean that the immigration authorities have an obligation in fairness to provide basic information on the methods of application, and to make available the appropriate forms. [Emphasis added.]

In my view, there can be no doubt whatsoever that the visa officers at the Canadian Commission in Hong Kong were under a duty to furnish the appellant Luong Manh Nguyen with an application for landing (form IMM 8) upon request. No other conclusion can be drawn from the cases cited. Is it enough for the Minister to say in reply that because there has been no express request for the form there is no duty? I think not. The implication from the sponsorship undertaking was unmistakable and irresistible that the appellant wished to apply for landing. The Immigration Manual shows that such inference is drawn as a matter of course. The sponsorship undertaking also shows, however, that the appellant was not a free agent: his address is given as being at the Shumshui Po Detention Centre in Hong Kong.[14] In those circumstances he could hardly be expected to present himself at the Commission office. The Immigration Manual establishes that it is current practice to send the application form. The evidence establishes that persons in the appellant’s position are entitled to send and receive letters[15] and indeed there are a number of letters from him in the material. In my view, therefore, the Minister had a request for the form and had to hand the means to give effect to it.

Nor is it any answer for the Minister to say that even if an application form were received it would not be possible to process it further because Canadian immigration officials do not have access to the detention camps in Hong Kong. In the first place, the case of Tsiafakis, supra, is ample authority for the proposition that an officer’s view that an application is ultimately doomed to failure cannot be an excuse for refusing to allow the application to be made. Secondly, it is by no means clear that access would in fact inevitably be denied to Canadian immigration officials if it was sought. The Motions Judge seemed to think that this was the case but subsequent material filed at the hearing of the appeal,[16] casts some doubt upon this.

This is not to say that heroics are required; if access to the appellant is in fact denied by the Hong Kong authorities, he is, of course, the one who will have to suffer the consequences. But the Minister and his officials cannot avoid their duty by simply asserting that they will be prevented from carrying it out without even having tried to do so.

No objection was taken by the respondent at the hearing of the appeal to the raising of the question of the Minister’s duty to provide an application form to the appellant, and an order to this effect would, in any event, be included within the larger and more general terms of the order originally sought by the appellants. I would accordingly allow the appeal and would issue an order in the nature of mandamus requiring the respondent to send to the appellant Luong Manh Nguyen an application for landing (form IMM 8) and to process the same, when completed, to the extent possible.

I would grant the appellants their costs throughout.

Stone J.A.: I agree.

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