T-3116-76
Emmanuel Okolakpa (Petitioner)
v.
G. Lanthier (Respondent)
and
Minister of Manpower and Immigration
(Mis -en-cause)
Trial Division, Walsh J.—Montreal, September
13, 1976; Ottawa, September 21, 1976.
Immigration—Petition for writ of prohibition against spe
cial inquiry—Inquiry ordered on basis of report identical to
previous report leading to deportation order—Deportation
order set aside by Federal Court of Appeal—Prohibition
granted—Immigration Act, R.S.C. 1970, c. I-2, ss. 18(1)(e)(iv)
and (viii), 27(4)—Immigration Regulations, s. 35(2)—Federal
Court Act, s. 28.
Petitioner is seeking a writ of prohibition to prevent the
holding of a special inquiry to determine his status in Canada
and an order requiring a determination of his application for a
student visa. Petitioner entered Canada as a student and
applied for an extension of his visa stating that he was not
employed. It was subsequently ascertained that he had been
employed, a report was made pursuant to section 18(1)(e)(iv)
and he was ordered deported by a Special Inquiry Officer on
the grounds that he had not sought the necessary written
permission required by section 35(2) of the Regulations. The
deportation order was set aside by the Federal Court of Appeal;
no written reasons were given. A second report was then
prepared by the same immigration officer, based on identical
facts but invoking section 18(1)(e)(viii) and alleging that he
entered Canada and had his visa extended by reason of false
information. As a result, a new special inquiry was ordered.
Petitioner argued that a special inquiry based on a report using
the same facts but relying on a different subsection of the Act
is contrary to natural justice in that it places him in double
jeopardy.
Held, the second report cannot form the basis of a further
special inquiry; the respondent is prohibited from holding such
inquiry and is ordered forthwith to decide whether or not to
grant the petitioner's application for an extension of his student
visa. Any "subsequent report" and inquiry made pursuant to
section 27(4) must be based on new information. Furthermore
when the first deportation order was made the petitioner's visa
had not expired and he could have appealed to the Immigration
Appeal Board. Now that it has expired, he would have no
grounds for seeking to quash a deportation order by the Immi
gration Appeal Board and would therefore be deprived of one
of his recourses.
Sadique v. Minister of Manpower and Immigration
[1974] 1 F.C. 719, distinguished. Kalicharan v. Minister
of Manpower and Immigration [1976] 2 F.C. 123 and
Anwar v. Minister of Manpower and Immigration
(unreported, A-422-75), discussed.
PETITION for writ of prohibition and order.
COUNSEL:
Julius Grey for petitioner.
R. Leger for respondent and mis -en-cause.
SOLICITORS:
Lapointe, Rosenstein, Konigsberg & Delorme,
Montreal, for petitioner.
Deputy Attorney General of Canada for
respondent and mis -en-cause.
The following are the reasons for judgment
rendered in English by
WALSH J.: Petitioner seeks a writ of prohibition
to prohibit the holding of a further special inquiry
to determine his status in Canada and for an order
requiring a determination on his application for a
student visa. The facts are as follows:
On April 5, 1976, a special inquiry was held as
the result of a report dated February 4, 1976 by R.
A. Duval, an immigration officer under section 18
of the Immigration Act' stating that pursuant to
subparagraph 18(1)(e)(iv) of the Act petitioner,
being a student under section 7(1)(J) of the Act,
had taken employment in Canada without written
permission of an immigration officer contrary to
section 35(2) of the Regulations. His status as a
student had been extended on November 14, 1975
to August 31, 1976 at which time he had stated he
was not working, but subsequently it was ascer
tained that he had been employed since September
16, 1975. The Special Inquiry Officer ordered his
deportation by virtue of the said section
18(1)(e)(iv). This deportation order was set aside
by judgment of the Court of Appeal dated June
15, 1976, no written reasons being given.
On July 3, 1976 the said R. Duval made another
report based on identical facts but now invoking
section 18(1) (e) (viii) alleging that he entered
Canada by reason of false information given by
1 R.S.C. 1970, c. I-2.
him in that at his examination on November 14,
1975 he stated that he was not employed in
Canada and that on this basis he was issued the
extension of his student visa. It is as a result of this
second report that a new special inquiry has been
ordered which petitioner seeks to prevent from
proceeding by the present petition for a writ of
prohibition.
Following the judgment setting aside the depor
tation order petitioner requested a prolongation of
his student visa but was given no decision on this
and instead was told to await a summons for a
hearing. It is his contention that a hearing by a
Special Inquiry Officer such as has now been
ordered can only be held pursuant to a valid
written report under section 18, and that the immi
gration officer having made such a valid written
report on February 4, 1976 which led to the
special inquiry ordering his deportation by virtue
of failing to comply with section 18 (1) (e) (iv)
which was set aside by the Court of Appeal
cannot, without any new facts, and for the same
reasons now make a second report leading to a
second special inquiry seeking his deportation by
invoking section 18 (1) (e) (viii) of the Act, and that
to use the same facts but rely on a different
subparagraph of the section of the Act in question
is contrary to natural justice, and places petitioner
in double jeopardy from a multiplicity of proceed
ings which if permitted could have no end, a new
section being invoked and a new inquiry held each
time a deportation order was set aside.
Section 18(1) (e) (iv) deals with a person other
than a Canadian citizen or a person with a
Canadian domicile who
(iv) was a member of a prohibited class at the time of his
admission to Canada,
while subparagraph (viii) deals with such a person
who
(viii) came into Canada or remains therein with a false or
improperly issued passport, visa, medical certificate or other
document pertaining to his admission or by reason of any
false or misleading information, force, stealth or other
fraudulent or improper means, whether exercised or given by
himself or by any other person.
It was argued that section 27(4) foresees the
possibility of a subsequent report and inquiry. It
reads:
(4) No decision rendered under this section prevents the
holding of a future inquiry required by reason of a subsequent
report under section 18 or pursuant to section 24.
It appears to me however that the "subsequent
report" must be a report based on new information
and not merely a report made which bases the
recommendation on a different subparagraph of
the Act, as a result of the Court of Appeal having
held that the subparagraph on which it was based
was not applicable. The Inquiry Officer could have
invoked subparagraph (viii) instead of or in addi
tion to subparagraph (iv) in ordering the deporta
tion had he so desired but failed to do so, and this
oversight or error in law does not justify a new
report and new special inquiry based on identical
facts. Moreover when the first deportation order
was issued his visa had not yet expired so he could
have appealed to the Immigration Appeal Board
instead of bringing a section 28 application by
virtue of the Federal Court Act to the Court of
Appeal whereas his visa has now expired so if a
second special inquiry were held he would have no
grounds to seek the quashing of a deportation
order by the Immigration Appeal Board if such an
order were again made as appears likely, and
therefore would suffer prejudice as a result of
being deprived of one of his recourses. What he
now requires is a decision on his application for a
renewal of his student visa and it is alleged and not
disputed that he has been admitted to continue his
studies for the next year and possesses the neces
sary qualifications to study in Canada. This is not
to say that I am making a finding that such
extension of his student visa should be made, as
that is not a matter within the discretion of the
Court nor raised in the present proceedings.
The present proceedings by way of writ of prohi
bition appear to be the appropriate remedy to
prevent the holding of a second special inquiry
based on the same facts. In the case of Sadique v.
Minister of Manpower and Immigration 2 Cowan
D.J. said, at page 723:
2 [1974] 1 F.C. 719.
... the issue of a writ of prohibition would not be the proper
remedy since such a writ is only issued to restrain an official,
such as the Special Inquiry Officer, from acting in excess of his
jurisdiction. Since the inquiry has been concluded, a writ of
prohibition is not appropriate, in any event.
If in the present case a second report based on
identical facts could not be made so as to overcome
the Court of Appeal decision quashing the depor
tation order, then the Special Inquiry Officer who
can only hold another inquiry on the basis of a
subsequent report would be exceeding his jurisdic
tion, and, as this second inquiry has not been
commenced, prohibition would lie. See also the
case of Kalicharan v. Minister of Manpower and
Immigration 3 in which Mahoney J. granted a
prohibition to prevent the carrying out of a depor
tation order, the basis for which was deemed never
to have existed. This goes further than granting a
prohibition merely to prevent a further inquiry.
Reference should also be made to the as yet
unreported decision of the Court of Appeal on
September 17, 1975 in the case of Anwar v. Min
ister of Manpower and Immigration [A - 422 - 75] in
which Urie J., rendering the judgment of the
Court, stated:
In our opinion, it is clear that when the Applicant was
interviewed by an Immigration Officer on June 12, 1975, his
real intention was to obtain an extension of his visa admitting
him to Canada under paragraph 7(1)(f) of the Immigration
Act as a student. That matter was apparently not dealt with
either by the Immigration Officer or by the Special Inquiry
Officer. The latter ordered the Applicant deported solely on the
basis that he had entered Canada as a non-immigrant and
remained therein after ceasing to be a non-immigrant.
The Applicant was entitled to a decision on the question of
his application for an extension of his student visa. Since he did
not receive such a decision, it is our view that the deportation
order should be set aside.
For the above reasons I find that the second
report of the immigration officer cannot form the
basis of a further special inquiry, and prohibit
respondent from holding such further special
inquiry, and declare that petitioner has a right to a
determination on his application for extension of
his student visa, which decision should be made
forthwith, the whole with costs.
3 [1976] 2 F.C. 123.
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.