76-A-305
Anna Maslej (Applicant)
v.
Minister of Manpower and Immigration
(Respondent)
Court of Appeal, Urie and Ryan JJ. and MacKay
D.J.—Toronto, April 8; Ottawa, April 30, 1976.
Immigration—Application for leave to appeal decision of
Immigration Appeal Board refusing to allow appeal from
deportation order to go forward—Whether section 11(3) of
Immigration Appeal Board Act deprived applicant of right to
fair hearing in that no opportunity for oral hearing provided
and in that quorum of Board considered matters other than
the declaration submitted as required by section 11(2)—Immi-
gration Appeal Board Act, R.S.C. 1970, c. 1-3, s. 11(2),(3)—
Canadian Bill of Rights, S.C. 1960, c. 44, s. 2(a),(e).
Applicant applied for leave to appeal a decision of the
Immigration Appeal Board refusing to allow her appeal from a
deportation order. Applicant relied on the argument presented
in the Lugano case ([1976] 2 F.C. 438), but submitted addi
tionally that section 11(3) of the Immigration Appeal Board
Act deprived her of a fair hearing in that she was not given an
opportunity for an oral hearing on the issue of whether or not
her appeal should be allowed to proceed, and in that the
quorum of the Board considered matters other than the decla
ration required by section 11(2) in reaching its decision.
Held, the application is dismissed for the reasons given in the
Lugano application. As to the additional submissions, the
deportation order establishes that, in the absence of some
special privilege, applicant has no right to remain in Canada.
She attempts not to assert such a right, but to obtain a
discretionary privilege. Section 11(3) provides the means for
determining whether an appeal should be allowed to proceed.
The Fuentes case ([1974] 2 F.C. 331) has held that only the
declaration may be assessed by the quorum of the Board, and
the Lugano case held that on that evidence only the quorum
has the jurisdiction to decide "whether there exist reasonable
grounds to believe that it is more likely than not, on a balance
of probabilities, the applicant can prove his status as a refugee
at a full hearing of the Board." The Prata decision ([1976] 1
S.C.R. 376) rules out the necessity of the further step of
requiring the person affected to be heard. As to the quorum of
the Board's reference to the "common knowledge" in its rea
sons, no tribunal can approach a problem devoid of knowledge
of a general nature. The quorum did not consider facts, infor
mation or evidence not contained in the declaration.
Lugano v. Minister of Manpower and Immigration [1976]
2 F.C. 438, followed. Minister of Manpower and Immi
gration v. Fuentes [1974] 2 F.C. 331; Prata v. Minister of
Manpower and Immigration [1976] 1 S.C.R. 376, affirm
ing [1972] F.C. 1405, applied.
APPLICATION.
COUNSEL:
I. W. Bardyn for applicant.
G. R. Garton for respondent.
SOLICITORS:
Bardyn & Zalucky, 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 an application for an order
granting the applicant leave to appeal the decision
of the Immigration Appeal Board made on Janu-
ary 16, 1976, wherein the Board, pursuant to
section 11(3) of the Immigration Appeal Board
Act, (hereinafter called the Act) refused to allow
the applicant's appeal from a deportation order
made by a Special Inquiry Officer to go forward.
Counsel for the applicant adopted and relied on
the argument of counsel in Lugano v. Minister of
Manpower and Immigration [1976] 2 F.C. 438
which was heard on the same day preceding this
application. For the reasons given this day on that
application we cannot agree with the submissions
made therein.
However, counsel also attacked the Board's
decision on two additional grounds: (a) he urged
that section 11(3) deprived the applicant of the
fair hearing required to be given to all persons by
section 2(e) of the Canadian Bill of Rights in that
she was not given an opportunity for an oral
hearing on the issue as to whether or not her
appeal ought to be allowed to proceed, and (b)
because in reaching their decision, the quorum of
the Board in their reasons for judgment considered
matters other than the declaration submitted in
the form required by section 11(2) of the Act.
In dealing with counsel's first submission, I do
not think that I can do better than to refer to some
of the observations made by Martland J. in dealing
with the philosophy and scheme of the Immigra
tion Act, in Prata v. Minister of Manpower and
Immigration'. While he was dealing with other
sections of the Immigration Appeal Board Act, in
my opinion, the observations which he made at
page 380 are by analogy, equally applicable in
considering the Board's jurisdiction under section
11(3).
In considering whether the audi alteram partem rule can be
invoked in the present case it is necessary to consider the
following circumstances. The appellant is seeking to remain in
Canada, but the deportation order, which is not now chal
lenged, establishes that, in the absence of some special privilege
existing, he has no right whatever to remain in Canada. He
does not, therefore, attempt to assert such a right, but, rather,
attempts to obtain a discretionary privilege. [The emphasis is
mine.]
The position of an alien, at common law, was briefly summa
rized by Lord Denning M.R. in the recent case of R. v.
Governor of Pentonville Prison, [1973] 2 All E.R. 741 at p.
747, as follows:
At common law no alien has any right to enter this country
except by leave of the Crown; and the Crown can refuse
leave without giving any reason; see Schmidt v. Secretary of
State for Home Affairs, [1969] 2 Ch. 149 at 168. If he
comes by leave, the Crown can impose such conditions as it
thinks fit, as to his length of stay, or otherwise. He has no
right whatever to remain here. He is liable to be sent home to
his own country at any time if, in the opinion of the Crown,
his presence here is not conducive to the public good; and for
this purpose, the executive may arrest him and put him on
board a ship or aircraft bound for his own country: see R. v.
Brixton Prison (Governor), ex parte Soblen [1963] 2 Q.B.
243 at 300, 301. The position of aliens at common law has
since been covered by various regulations; but the principles
remain the same.
The right of aliens to enter and remain in Canada is gov
erned by the Immigration Act. That statute provides for the
making of deportation orders, in the circumstances defined in
the Act. Such an order was made with respect to the appellant
and it is conceded that it was valid.
The same general principles apply to this case.
Mr. Justice Martland then at page 383 of the
Prata report referred to the reliance of counsel for
Prata on section 2(a) and (e) of the Canadian Bill
of Rights and in respect of that submission adopt
ed the reasoning of Jackett C.J., on Prata's appeal
' [1976] 1 S.C.R. 376.
before this Court 2 . The quotation [at page 1413]
from Chief Justice Jackett's reasons is pertinent in
the consideration of counsel's submissions in this
case.
In considering the arguments of the appellant based on the
Canadian Bill of Rights, it is important to have in mind that
everything of which the appellant feels aggrieved in this matter
is the direct result of the deportation order. There is, however,
no attack on the validity of the deportation order and there is
no contention that that order was not made in accordance with
the procedure laid down by the Immigration Act and Regula
tions for making such an order. Neither is there any contention
that that procedure does not meet the requirements of "due
process" contemplated by section 1(a) of the Canadian Bill of
Rights or "the principles of fundamental justice" contemplated
by section 2(e) of the Canadian Bill of Rights. To the extent,
therefore, if any, that the deportation order has interfered with
the appellant's "life, liberty, security of the person or enjoy
ment of property" or has affected his "rights" or `obligations",
there has been no conflict with the requirements of section 2 of
the Canadian Bill of Rights in relation to section 1(a) or
section 2(e) thereof.
Section 11(3) provides the method whereby it is
determined whether an appeal from a deportation
order ought to be allowed to proceed where the
proposed appellant claims refugee status. As has
been held in the Fuentes' case only the declaration
may be considered by the quorum of the Board in
reaching its decision under that section. The pur
pose of the section is obviously to screen applica
tions based on allegations of entitlement to refugee
status. In the Lugano case, (supra) we have held
[at page 443] that section 11(3) requires an assess
ment of the declaration
... and a determination, on that evidence, of whether there
exist reasonable grounds to believe that it is more likely than
not that, on a balance of probabilities, the applicant can prove
his status as a refugee at a full hearing of the Board.
That is a limited and defined jurisdiction to be
exercised as a matter of discretion by the quorum
of the Board.
The reasoning in the Prata decision (supra)
clearly rules out, in our view, the necessity of the
further step suggested of requiring the person
affected to be heard.
The second ground of attack by applicant's
counsel is based on the inclusion of the following
2 [1972] F.C. 1405.
3 [1974] 2 F.C. 331.
words by the quorum of the Board in their reasons
for judgment:
It is common knowledge that in Poland there are thousands
upon thousands of Poles of Ukranian origin and surely all these
Ukranians are not in danger of being persecuted.
This submission can be disposed of shortly by
the observation that no tribunal can approach a
problem with its collective mind blank and devoid
of any of the knowledge of a general nature which
has been acquired in common with other members
of the general public, through the respective life
times of its members, including, perhaps most
importantly, that acquired from time to time in
carrying out their statutory duties. In our view, the
statement made in the Board's reasons for judg
ment, of which the applicant complains, falls
within that category.
The quorum of the Board did not, in making
reference to the "common knowledge" in their
reasons, consider facts, information or evidence
not contained in the declaration made under
section 11 and therefore did not, in our opinion, err
in law in making their determination under subsec
tion (3) of that section.
Accordingly, the application for leave to appeal
will be dismissed.
* * *
RYAN J.: I concur.
* * *
MACKAY D.J.: I agree.
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.