T-4534-75
Diego Diaz Vara (Petitioner)
v.
Minister of Manpower and Immigration and Guy
Foucault (Respondents)
Trial Division, Walsh J.—Montreal, January 12;
Ottawa, January 29, 1976.
Immigration—Mandamus—Application to reopen special
inquiry—Petitioner ordered deported as he had only $200 and
no return ticket—Friend arriving later with money—Officer
denying informal request to reopen, and releasing petitioner on
bail—Petitioner returning to Spain—Application for review
adjourned sine die by Court of Appeal—Formal application
for reopening refused—Petitioner alleging s. 35 will operate to
his detriment if not reopened—Immigration Act, R.S.C. 1970,
c. 1-2, ss. 5(p), 26, 27, 28, 35.
Petitioner applies for mandamus to order the reopening of a
special inquiry, the result of which was a deportation order
under section 5(p) of the Immigration Act (applicant had only
$200 and no return ticket). No adjournment to introduce
further proof was requested; three days later, a friend arrived
with petitioner's money. An informal request to reopen the
inquiry was denied, and petitioner was released on bail. After a
seven-day stay, he returned to Spain. His application for review
was adjourned by the Court of Appeal sine die. Formal applica
tion for reopening was refused, the Special Inquiry Officer
maintaining that section 28 should not be used to consider facts
arising after the hearing, and, that since petitioner had left
Canada, it was no longer possible to make a decision as
required by section 27(2). Petitioner alleges that section 35 will
operate to his detriment if the inquiry is not reopened and the
order quashed, in spite of the offer of the Minister's permission
under section 35, which he claims could be troublesome and
time-consuming.
Held, the petition is dismissed. The decision whether to
reopen is administrative, but must be made in accordance with
principles of natural justice. Evidence here was not, as main
tained, new, but was available at the time of the inquiry,
though without corroboration. Had petitioner requested an
adjournment until the arrival of his friend, it might have been
granted—a refusal might have been construed as a breach of
natural justice. Respondent's refusal to reopen on the first
verbal request is surprising. However, as petitioner is no longer
in Canada, he cannot be considered a person seeking admission,
or a person in Canada within the meaning of section 27 so as to
render a decision to permit him to "come into or remain in
Canada." Generally, mandamus cannot be used to compel the
impossible. There is also some question as to whether the
hearing of new evidence would be proper, as the decision is now
before the Court of Appeal, though allegedly adjourned from
time to time to permit reopening.
APPLICATION.
COUNSEL:
F. Philibert for petitioner.
J. P. Belhumeur for respondents.
SOLICITORS:
Legal Aid Quebec, Montreal, for petitioner.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for judgment
rendered in English by
WALSH J.: The petitioner applies for a writ of
mandamus against respondents to order the reo
pening of a special inquiry as to the admissibility
of petitioner to Canada, in the presence of his
attorney, in spite of petitioner's absence from the
country.
The facts of the case are as follows: an inquiry
was held pursuant to sections 22 and following of
the Immigration Act' on August 1st, 1975 as a
result of which petitioner was detained and
ordered to be deported from Canada, pursuant to
section 5(p) of the Act as a person who was not, in
the opinion of the Special Inquiry Officer Guy
Foucault, a bona fide immigrant or a non-immi
grant as he had, at the time of the inquiry, only the
sum of $200 and no return ticket to his country of
origin, Spain, this apparently being the basis of the
decision.
It is significant that at the time of the hearing
he did not make any request for an adjournment in
order to introduce further proof as to his financial
status. An application to review this decision, pur
suant to section 28 of the Federal Court Act, was
made to the Court of Appeal on August 4th, 1975.
On the same date, a friend of petitioner, an Ameri-
can citizen, arrived from Madrid, Spain bringing
with him a sum of money belonging to petitioner,
as petitioner had allegedly declared he would,
R.S.C. 1970, c. I-2.
during his hearing. On the following day, petition
er's attorney informally requested the Special
Inquiry Officer Guy Foucault to reopen the hear
ing by virtue of section 28 of the Immigration Act
to hear supplementary proof in respect of this.
Section 28 reads as follows:
28. An inquiry may be reopened by a Special Inquiry Officer
for the hearing and receiving of any additional evidence or
testimony and a Special Inquiry Officer has authority, after
hearing such additional evidence or testimony, to confirm,
amend or reverse the decision previously rendered. 1966-67, c.
90, s. 28.
Mr. Foucault refused to do this but informally
and outside court, spoke to the friend in question,
who corroborated petitioner's statement and Mr.
Foucault then released petitioner from custody on
$100 bail deposit. Petitioner also had a valid tour
ist visa for the United States. In due course,
following his seven-day stay in Canada, he
returned to Spain. His application for review of
the decision of the Special Inquiry Officer was
adjourned by the Court of Appeal from September
12, 1975 to September 17, 1975 and subsequently
sine die, allegedly to permit the reopening of the
inquiry. On October 20, 1975 a formal application
for reopening was made and on October 28, 1975
the Special Inquiry Officer Guy Foucault again
refused to reopen it. However, on the same date, a
letter was delivered by Mr. Foucault to petitioner's
attorney, in which he gives his reasons for the
refusal as being that section 28 of the Act should
not be used to take into consideration facts arising
after the hearing and that, moreover, since peti
tioner had already left Canada and was no longer
seeking admission, it was no longer possible to
make a decision as required by section 27(2) of the
Act which requires the Special Inquiry Officer, in
the decision to either "admit or let such person
come into Canada or remain therein, as the case
may be" or, by virtue of section 27(3) "make an
order for [his] deportation".
Although admitting that he no longer is in
Canada or at present seeking admission, petitioner
alleges that section 35 of the Act will operate to
his prejudice, unless the inquiry is reopened and
the deportation order quashed. This section reads
as follows:
35. Unless an appeal against such order is allowed, a person
against whom a deportation order has been made and who is
deported or who leaves Canada shall not thereafter be admitted
to Canada or allowed to remain in Canada without the consent
of the Minister. R.S., c. 325, s. 38.
In answer to this argument, respondent refers to
the last paragraph of the letter he wrote to peti
tioner's attorney on October 28, 1975 which reads:
[TRANSLATION] If, however, Mr. Vara desires to return to
Canada, our Ministry is ready to give him the permission of the
Minister, by virtue of section 35, provided he conforms to the
requirements of the Law and Regulations respecting
Immigration.
While this protects him from the effects of the
application of section 35, petitioner contends, and
probably with some justification, that this proce
dure is troublesome and could result in a consider
able loss of time if he should wish to re-enter at
short notice.
Section 26(1) of the Act provides that the inqui
ry shall be "in the presence of the person con
cerned wherever practicable". This appears to be a
provision inserted in the Act for the benefit of the
person seeking entry and can be waived by that
person when, as in the present case, it is not
practicable for him to be present for the reopening
of his inquiry. Certainly section 28 gives a Special
Inquiry Officer the right to reopen the hearing,
receive additional evidence and amend or reverse
his previous decision, and I am of the view that
respondent could readily have done that on August
5, 1975 when petitioner was still present, as well as
his witness, and as a result of this further evidence
have modified his decision and quashed the depor
tation order. Instead he chose to informally release
petitioner from custody on bail. The decision as to
whether or not to reopen the hearing is an
administrative one but should nevertheless be
made in accordance with the principles of natural
justice.
In refusing to reopen the inquiry at that time,
Mr. Foucault states that this was based on the fact
that he is not obliged to hear new evidence which
only arose after the inquiry, or there would be no
end to requests for reopening such inquiries, so
that the decision must be based on evidence that
was available at the time of the inquiry. It appears
to me that the evidence in question as to petition
er's solvency was, however, evidence that was
available at the time of the inquiry but could not
be corroborated as his friend had not yet arrived
from Spain with the additional funds, destined for
petitioner. Had petitioner requested an adjourn
ment of the hearing until his friend arrived, it
might well have been granted and, if not, the
refusal to do so might perhaps have been construed
as a breach of natural justice. In the absence of
such a request, however, respondent Foucault may
well have had reason to doubt petitioner's testimo
ny before him to the effect that a friend was
coming from Spain with funds for him. What is
surprising is that when the friend did arrive, on
August 5, respondent refused the verbal request to
reopen the hearing, as this would have settled the
matter at that time.
By October 20, 1975 however, when the formal
application for a reopening of the inquiry was
made, petitioner was no longer in the country and
hence, I must agree with respondent's contention
that he could no longer be considered as a person
seeking admission to Canada or a person in
Canada within the meaning of section 27 of the
Act, so as to render a decision pursuant to section
27(2) permitting him to "come into or remain in
Canada". It is stated in S.A. de Smith 2 :
Lex non cogit ad inutilia. Mandamus will not, in general, issue
to compel a respondent to do what is impossible in law or in
fact.
Moreover, there appears to be some question as
to whether he could properly, at this time, hear
new evidence with a view to amending his decision,
when same was before the Court of Appeal on an
application to review same, even though that
application was allegedly adjourned from time to
time to permit such reopening.
I am of the view therefore, that petitioner will
have to be satisfied with the undertaking in the
letter of October 28, 1975 which no doubt will
form part of his record in the Department of
Immigration to the effect that section 35 of the
Act will not be used so as to prohibit his subse
t Judicial Review of Administrative Action, page 499.
quent admission to Canada, provided that at that
time, he complies with the requirements of the law
and regulations.
Under the circumstances, the petition will be
dismissed, but without costs.
ORDER
The petition for the writ of mandamus is dis
missed without costs.
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