A-237-76
Latchman Hardayal (Applicant)
v.
Minister of Manpower and Immigration
(Respondent)
Court of Appeal, Urie and Ryan JJ. and MacKay
D.J.—Toronto, May 4, 1976; Ottawa, May 20,
1976.
Judicial review—Immigration—Applicant seeking to review
cancellation of Minister's permit, claiming no hearing allowed
and no grounds given—Respondent moving to quash, claiming
decision purely administrative—Immigration Act, R.S.C.
1970, c. 1-2, ss. 5, 7, 8.
Applicant applied to review and set aside the decision of an
Immigration Officer cancelling a Minister's permit authorizing
him to remain in Canada and engage in employment. He
claimed he was not given a hearing and that no reason for the
cancellation was given. As the accompanying letter stated that
he was no longer living with his wife who had sponsored him,
presumably the permit had been granted on the basis of the
sponsorship application and was cancelled due to the parties'
separation.
Held, (by a majority) granting the application, the matter is
referred back to the Minister for determination after applicant
has been permitted to make submissions. Section 8 of the
Immigration Act gives the Minister a broad discretionary
power to grant, extend or cancel a permit, which is purely
administrative. The section is a code by itself with regard to
entering and remaining in Canada under permit. The circum
stances in which a permit will be granted are unspecified, no
procedures or limiting stipulations are set out, nor are any
rights of appeal provided. There is nothing to suggest the right
to any form of hearing. However, it was suggested that where a
permit expressly granting certain rights, from which follow
certain benefits, is cancelled, a hearing may be implied because
fairness demands that the holder not lose these rights or
benefits without an opportunity to make submissions. The
principle applicable with regard to section 8 seems to be that if
the permit is revoked before the time expires, the applicant
should be allowed to be heard, for he would have a legitimate
expectation of being permitted to remain for the allowed time.
The decision was quasi-judicial, and subject to review. While
the Howarth decision may seem decisive, it must be stressed
that a paroled inmate remains an inmate while an alien with a
Minister's permit acquires a new status under section 7(2) of
the Act for the period of the permit, which status carries with it
substantial advantages which the holder reasonably expects to
retain during the period, including freedom from deportation.
Here, applicant's legitimate expectation was that he could stay
and work in Canada for a year; from this flow other expecta
tions and cancellation, which will deprive him of them without
the chance to be heard, seems to lack fairness. Failure to
provide such opportunity is a denial of a principle of natural
justice.
Per MacKay D.J. (dissenting): The decision was purely
administrative. Sections 5 and 7 of the Immigration Act enu
merate classes of persons who may or may not enter and
remain in Canada, and rights of appeal are provided. Section 8
refers to a separate and distinct class. The Act does not provide
for a hearing or appeal of any kind with respect to a Ministerial
order refusing to grant, or cancelling a permit. It does not
provide (subject to section 8(1)(a) and (b)) for classes of
persons or purposes for which persons may be granted a permit,
nor are there provisions limiting or restricting the Minister's
authority to cancel a permit, or for a hearing or appeal.
Parliament did not intend that there should be a hearing before
the issuing of an order cancelling a Minister's permit. And, if
this conclusion is wrong, by reasons of the procedure followed
here, applicant was not deprived of an opportunity to contest
the order and oppose a deportation order.
Schmidt v. Secretary of State [1969] 2 Ch. 149, agreed
with. Howarth v. National Parole Board [1976] 1 S.C.R.
453 and Ex parte McCaud [1965] 1 C.C.C. 168,
distinguished.
APPLICATION for judicial review.
COUNSEL:
J. V. Toolsie for applicant.
K. Braid for respondent.
SOLICITORS:
J. V. Toolsie, Toronto, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
URIE J.: This is a section 28 application to
review and set aside the decision of E. Timmins,
Immigration Officer-in-Charge of the Canada
Immigration Division at Kitchener, Ontario, to
cancel a permit granted by him as the designee of
the respondent, pursuant to section 8 of the Immi
gration Act, which authorized the applicant to
remain in Canada and to engage in employment
during the period it remained in force namely,
until June 10, 1976.
The letter notifying the applicant of the cancel
lation is dated March 25, 1976 and reads as
follows:
Federal Building—Second Floor
(telephone 744-4161)
Manpower Main-d'oeuvre
and Immigration et Immigration
Your File Votre référence
Our File Notre référence
3458-33491
15 Duke Street East,
Kitchener, Ontario,
N2H 1A2,
March 25, 1976.
Mr. Latchman Hardayal,
57 Main Street,
Apt. 8,
Cambridge (G), Ontario.
Dear Mr. Hardayal:
Whereas pursuant to subsection (1) of Section 8 of the
Immigration Act, a permit was issued on June 11, 1975,
authorizing you to remain in Canada until 10th June, 1976.
Take notice that pursuant to subsection (3) of Section 8 of
the said Act, I hereby cancel the said permit, I having been
authorized by the Minister of Manpower and Immigration
pursuant to Section 2 and Section 67 ot- the Act to cancel such
Permit.
Dated at Kitchener, Province of Ontario,
this twenty-fifth day of March, 1976.
Yours truly,
1
"E. Timmins"
E. Timmins,
Officer-In-Charge,
Canada Immigration Centre.
It will be noted that the notice did not contain a
reason for the cancellation nor did it give the
applicant an opportunity to make representations
with respect thereto prior to its implementation.
However the letter accompanying the notice stated
in part:
On June 2, 1975 an application was accepted from your wife,
Mrs. Patsey Elizabeth Hardayal, nee Quigley. Since you are no
longer living as a married couple with your sponsor, we have
terminated processing of the application. Attached is a letter
officially cancelling your Minister's Permit. As you no longer
have status in Canada you are requested to leave Canada
forthwith.
Presumably, the Ministerial permit had origi
nally been granted on the basis of the sponsorship
application made by the applicant's wife and the
cancellation was due to the fact that the parties
were no longer living together.
The respondent moved to quash the section 28
application on the ground that this Court has no
jurisdiction to entertain such an application. This
motion will be dealt with first.
Section 8 of the Immigration Act reads as
follows:
8. (1) The Minister may issue a written permit authorizing
any person to enter Canada or, being in Canada, to remain
therein, other than
(a) a person under order of deportation who was not issued
such a written permit before the 13th day of November 1967,
or
(b) a person in respect df whom an appeal under section 17
of the Immigration Appeal Board Act has been taken that
has not been successful.
(2) A permit shall be expressed to be in force for a specified
period not exceeding twelve months.
(3) The Minister may at any time, in writing, extend or
cancel a permit.
(4) The Minister may, upon the cancellation or expiration of
a permit, make a deportation order respecting the person
concerned.
(5) The Minister shall submit to Parliament within thirty
days of the commencement of the first session of Parliament in
each year a report showing all permits, with particulars thereof
issued during the preceding calendar year. R.S., c. 325, s. 8;
1966-67, c. 90, s. 26.
The respondent takes the position that any deci
sion made by the Minister or his designee' pursu
ant to section 8 is purely administrative in nature
and is not required by law to be made on a judicial
or quasi-judicial basis. Thus, such a decision is not
subject to review under section 28 of the Federal
Court Act.
On the other hand, as I understood the argu
ment of counsel for the applicant, while undoubt
edly any such decision was administrative in
nature, the cancellation of a permit, the granting
of which conferred upon the recipient certain
rights, could only be made on a quasi-judicial
basis. Only making his decision on such a basis
could ensure, as a matter of fairness, that the
acquired rights, no matter how limited in nature,
were not taken away from him without notice and
' The applicant conceded that the Minister properly desig
nated the Officer-In-Charge to act in his place.
without the right to be heard (though not neces
sarily by way of an oral hearing).
In response to those submissions it should first
be observed that on its face there is nothing in
section 8 which expressly imposes any duty of the
kind suggested, on the Minister. The section clear
ly gives the Minister a broad discretionary power
to grant, extend or cancel a permit to enter or
remain in Canada. Such a power, couched in the
language of the section, equally clearly, is purely
administrative in nature. It is important to note, I
think, that the section appears to provide a code by
itself on the subject of entering or remaining in
Canada under permit which code is distinct from
the other provisions of the Act relating to "entry" 2
under normal or ordinary circumstances. The
permit under section 8 is an exercise of a discre
tion vested in the Minister and apparently is grant
ed in special or extraordinary circumstances, the
nature of which are not specified in the section.
Nor are any procedures laid down, nor stipulations
limiting the exercise of the discretion imposed,
(except with respect to the term of the permit) nor
are any rights of appeal granted which might have
the effect of implying that a person affected by the
Ministerial decision is entitled to be heard. (There
is, of course, no express provision prohibiting such
a hearing.) The section indeed does not include
anything that either expressly or by implication,
suggests that a "hearing" of some kind, not neces
sarily oral, shall be held before the discretion is
exercised.
•
That, however, does not end the matter since it
may be that where, as here, it is proposed that a
permit which expressly grants to the holder certain
rights from which other benefits naturally flow, is
to be cancelled, the statute may imply that there
be such a "hearing" because fairness requires that
the permit holder not be deprived of those rights
and benefits without an opportunity to make sub
missions. Lord Denning M.R. in Schmidt v.
Secretary of State, Home Affairs 3 put the propo
sition in this fashion:
2 Section 2. "entry" means the lawful admission of a non-
immigrant to Canada for a special or temporary purpose and
for a limited time.
3 [1969] 2 Ch. 149 at p. 170.
I quite agree, of course, that where a public officer has power
to deprive a person of his liberty or his property, the general
principle is that it is not to be done without his being given an
opportunity of being heard and of making representations in his
own behalf .... The speeches in Ridge v. Baldwin [1964] A.C.
40 show that an administrative body may, in a proper case, be
bound to give a person who is affected by their decision an
opportunity of making representations. It all depends on wheth
er he has some right or interest, or, I would add, some
legitimate expectation, of which it would not be fair to deprive
him without hearing what he has to say.
In that case Lord Denning was dealing with the
refusal of the Home Secretary to extend the per
mits of two aliens to continue their studies in the
United Kingdom after their permits had expired.
At page 171 he made this further statement:
He [the alien] has no right to enter this country except by
leave: and, if he is given leave to come for a limited period, he
has no right to stay for a day longer than the permitted time. If
his permit is revoked before the time limit expires, he ought, I
think, to be given an opportunity of making representations: for
he would have a legitimate expectation of being allowed to stay
for the permitted time. Except in such a case, a foreign alien
has no right—and, I would add, no legitimate expectation—of
being allowed to stay. He can be refused without reasons given
and without a hearing. Once his time has expired, he has to go.
While undoubtedly Lord Denning's reference to
the right to make representations in the case of
revocation of a permit was obiter dictum in the
circumstances of the case before him, it seems to
me to represent the principle applicable in apply
ing section 8. I have therefore concluded that a
decision to cancel an entry permit falls within the
class of administrative decisions that must be
made on a quasi-judicial basis. It follows then that
it is subject to review by this Court on a section 28
application. The motion to quash the applicant's
application ought, therefore, to be dismissed.
Although it was not referred to us during the
argument of the appeal, in reaching this conclusion
I am not unmindful of the decision in Howarth v.
National Parole Board 4 which may at first seem
decisive of the question. It seems to me, however,
that questions relating to the granting of parole
and its revocation are in a different class from
immigration decisions. Critical to the decision in
4 [1976] 1 S.C.R. 453.
the Howarth case, relying as it does on Ex parte
McCaud 5 is the concept of parole as being the
service of a sentence while on release under parole
conditions rather than service of the sentence in a
penal institution. In McCaud it was decided that a
decision as to the place and conditions of the
service of a sentence is purely administrative. A
paroled inmate remains an inmate. Speaking with
reference to McCaud, Mr. Justice Pigeon said in
Howarth at page 473:
In my view, no case was made for reconsidering that deci
sion. I fail to see how the enactment of the Federal Court Act
could be considered as having the effect of changing the law in
that respect, s. 28(1) clearly refers to the law as it stood at the
time. The law concerning the duty of the Parole Board in
making a decision on a parole had been conclusively deter
mined by a recent judgment of this Court. Parliament should
not be presumed to have acted in ignorance of that determina
tion. In North British Railway v. Budhill Coal and Sandstone
Company ([1910] A.C. 116), Lord Loreburn said (at p. 127):
"When an Act of Parliament uses a word which has received a
judicial construction it presumably uses it in the same sense".
An alien with a Minister's permit, on the other
hand, acquires a new status under subsection 7(2)
of the Immigration Act, the status of a non-immi
grant for the period limited by the permit. This
status carries with it very substantial advantages,
including freedom from the possibility of deporta
tion while the permit remains valid, advantages
which the permit holder has a reasonable expecta
tion of retaining during the period designated in
the permit.
Dealing with the merits of the application, it
seems to me that, to use Lord Denning's phrase,
the legitimate expectation of the applicant in this
case was that he could stay in Canada for a year
and accept employment. From this flows the
expectation that he could, for example, acquire
accommodation, household effects and other
amenities of life for his period of residence in this
country. A cancellation which will deprive him of
these expectations without permitting him to make
representations in respect of the proposed cancella-
5 [1965] 1 C.C.C. 168. See also Mitchell v. The Queen
(1976) 24 C.C.C. (2d) 241 (S.C.C.).
tion (the reason given for which may be based on
erroneous information) seems to me to lack the
element of fairness. It follows then that the failure
to give the applicant in this case a reasonable
opportunity to make representations constitutes a
denial of a principle of natural justice, and,
accordingly, the section 28 application should be
granted and the matter referred back to the Minis
ter for determination after having given the appli
cant a reasonable opportunity to make submissions
on the proposed cancellation of his permit.
* * *
RYAN J.: I concur.
• * *
The following are the reasons for judgment
rendered in English by
MACKAY D.J.: This is an application under
section 28 of the Federal Court Act to set aside the
cancellation of a Minister's permit issued to the
applicant under section 8 subsection (1) of the
Immigration Act on the grounds:
(1) that the applicant was not given a hearing
before the cancellation order was made, and
(2) that there were no grounds on which the can
cellation order could be justified. (The permit and
the order cancelling it were issued by an officer of
the department duly authorized by the Minister.)
The respondent applies to quash the application
on the ground that an order of the Minister can
celling a permit is a discretionary administrative
order of a political nature and the Minister is not
obliged to hold a hearing before issuing an order of
cancellation of a permit and that, this being so, the
applicant has no remedy under section 28.
It is my view that the question of whether the
Minister may issue an order cancelling a permit
without a hearing depends on the terms of the
statute authorizing the making of the order.
The Immigration Act is a complete code as to
the right of persons, who are not Canadian citi
zens, to enter or remain in Canada.
Section 5 of the Act enumerates the classes of
such persons who are not to be admitted to
Canada. Section 7 enumerates the classes of non-
immigrants who may be allowed to enter and
remain in Canada.
As to both these classes of persons, the Act
provides that they are entitled to a hearing before
being refused admittance or, being in Canada, are
ordered deported. They have rights of appeal in
certain classes of cases to the Immigration Appeal
Board, and in all other cases under these sections
are entitled to apply under section 28 of the Fed
eral Court Act to have the validity of a hearing by
a Special Inquiry Officer pursuant to a report
under sections 18 and 22 of the Act or of a
deportation order made after such a hearing,
determined.
Section 8 of the Immigration Act has reference
to a separate and distinct class of persons than
those enumerated in sections 5 and 7. That section
is as follows:
8. (1) The Minister may issue a written permit authorizing
any person to enter Canada, or, being in Canada, to remain
therein, other than
(a) a person under order of deportation who was not issued
such a written permit before the 13th day of November 1967,
or
(b) a person in respect of whom an appeal under section 17
of the Immigration Appeal Board Act has been taken that
has not been successful.
(2) A permit shall be expressed to be in force for a specified
period not exceeding twelve months.
(3) The Minister may at any time, in writing, extend or
cancel a permit.
(4) The Minister may, upon the cancellation or expiration of
a permit, make a deportation order respecting the person
concerned.
(5) The Minister shall submit to Parliament within thirty
days of the commencement of the first session of Parliament in
each year a report showing all permits, with particulars thereof,
issued during the preceding calendar year. R.S., c. 325, s. 8,
1966-67, c. 90, s. 26.
There is no provision or procedure in the Act for'
a hearing or an appeal of any kind in respect of a
Ministerial order refusing to grant or cancelling a
permit. Under section 8 the only obligation of the
Minister is under subsection (5), to submit to
Parliament in each year, a report showing all
permits, with particulars thereof, issued during the
preceding year. Particulars of a permit would
include an order of cancellation.
Unlike the provisions in respect of section 7, the
Act makes no provision (subject to paragraphs (a)
and (b) of section 8(1)), for the classes of persons
or the purposes for which persons may be granted
a Minister's permit nor are there any provisions in
the Act limiting or restricting the Minister's au
thority to cancel a permit or for a hearing or
appeal in respect of such orders; whereas the Act
specifies the grounds on which persons admitted
under section 7 may be required to leave or be
deported before the period for which they were
admitted has expired and as I have said provides
for a hearing before a, Special Inquiry Officer
whose decision may be brought into question on a
section 28 application.
Section 28(1) of the Federal Court Act is as
follows:
28. (1) Notwithstanding section 18 or the provisions of any
other Act, the Court of Appeal has jurisdiction to hear and
determine an application to review and set aside a decision or
order, other than a decision or order of an administrative
nature not required by law to be made on a judicial or
quasi-judicial basis, made by or in the course of proceedings
before a federal board, commission, or other tribunal, upon the
ground that the board, commission, or tribunal ....
I am of the opinion that the order of the Minis
ter cancelling the applicant's permit falls within
the exception to the jurisdiction of the Court in
that it was a decision or order of an administrative
nature not required by law to be made on a
judicial or quasi-judicial basis.
In the present case, the Minister did not make
an order of deportation under section 8 subsection
(4).
The cancellation order dated March 25, 1976,
together with a letter bearing the same date was
sent to the applicant. The letter is as follows:
Dear Mr. Hardayal:
Reference is made to your application for admission to
Canada as an immigrant.
On June 2, 1975 an application was accepted from your wife,
Mrs. Patsey Elizabeth Hardayal, nee Quigley. Since you are no
longer living as a married couple with your sponsor, we have
terminated processing of the application. Attached is a letter
officially cancelling your Minister's Permit. As you no longer
have status in Canada you are requested to leave Canada
forthwith.
If for any reason you do not leave Canada, it is incumbent
upon you to report forthwith to an Immigration Officer, in
order to comply with subsection 7(3) of the Immigration Act,
which reads as follows:
"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."
Yours very truly,
(signature)
E. Timmins,
Officer-In-Charge,
Canada Immigration Centre.
Encl.
This letter gave the applicant two options: (1) to
comply with the order and leave the country volun
tarily, or (2) to remain in the country until an
inquiry was held and at that inquiry to challenge
the validity of the cancellation order and oppose
the making of a deportation order.
The applicant did not leave and on March 30th,
a section 22 report was made and on March 31st
an inquiry was commenced by a Special Inquiry
Officer to determine whether he should be deport
ed as a result of the cancellation order. The inqui
ry was partly heard, was adjourned and has not
been completed, the present application under sec
tion 28 having in the meantime, been brought.
At the inquiry counsel for the applicant stated,
as he did on the hearing in this Court, that he was
not disputing the fact that his client had separated
from his wife, he took the position, in addition to
his complaint that no hearing had been held before
the cancellation order was issued, that the fact of
his client's separation from his wife did not justify
the cancellation of his permit.
Having regard to the statutory provisions to
which I have referred, it seems to me that Parlia
ment did not intend that there should be a hearing
before the issuing of an order cancelling a permit
issued under section 8 of the Act.
If I am wrong in this conclusion, I am of the
opinion that by reason of the procedure followed in
this case the applicant has not been deprived of an
opportunity to contest the validity of the cancella
tion order and oppose an order of deportation.
For these reasons, I would allow the respond
ent's motion and quash the section 28 application.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.