T-1385-76
In re Supinder Singh Manhas and in re Immigra
tion Act
Trial Division, Smith D.J.—Edmonton, May 19
and July 9, 1976.
Immigration—Prohibition and certiorari—Petitioner enter
ing as non-immigrant and marrying citizen—Granted Minis
terial Permit pending wife's attaining age of 18, when she
could sponsor him—Wife applying to sponsor him, then
obtaining divorce, and withdrawing sponsorship—Petitioner
consulting immigration officer—Officer making section 22
report without advising petitioner of results of investigation—
Petitioner directed to report for hearing—Objecting that Spe
cial Inquiry Officer lacked jurisdiction to hold it—Immigra-
tion Act, R.S.C. 1970, c. I-2, ss. 7(3), 8(9), 22, 23, and
Regulations, s. 31(1)(a).
Petitioner, who entered Canada as a non-immigrant, married
a 17 year old Canadian, and was granted a Ministerial Permit
permitting him to remain in Canada pending his wife's attain
ing the age of 18, at which time she could sponsor him for
admission. The wife applied to sponsor petitioner but subse
quently obtained a divorce and then withdrew the application.
His permit expiring, petitioner consulted an immigration officer
who made a section 22 report, although the results of his
investigation were not made known to petitioner. Petitioner was
then directed to report for a hearing; he did so, but objected
that the Special Inquiry Officer lacked jurisdiction. He then
applied for prohibition against further proceeding with the
hearing, and certiorari to quash the report.
Held, the application is dismissed. When a Ministerial
Permit has expired, the holder ceases to have any legal right to
remain in Canada. He ceases to be a non-immigrant or to be in
the particular class in which he was admitted as a non-immi
grant, and thus comes within the provisions of section 7(3) of
the Act, requiring him, if he remains in Canada, to report to
the nearest immigration officer for examination forthwith, and
deeming him to be a person seeking admission. While the
officer may be subject to criticism, if, as alleged, he made a
section 22 report without advising petitioner of the results of his
investigation, such failure does not deprive him of jurisdiction
to make the report. Nor was the order to report for a hearing
outside the jurisdiction of the officer concerned. Section 23(2)
provides that where a Special Inquiry Officer receives a section
22 report concerning a person (with certain exceptions) he shall
admit him, or let him come into Canada, or cause him to be
detained for an immediate inquiry. The Special Inquiry Officer
thus is statutorily empowered to order an inquiry, and section
23(2) applies to petitioner (who came from India). This is not a
proper case for prohibition or certiorari, and petitioner will not
be prejudiced if the hearing proceeds.
APPLICATION.
COUNSEL:
J. A. Sutherland for petitioner.
R. N. Dunne for respondents.
SOLICITORS:
J. A. Sutherland, Calgary, for petitioner.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for judgment
rendered in English by
SMITH D.J.: This is an Application on behalf of
the petitioner for a writ of prohibition directed to
C. J. Williams, Special Inquiry Officer, of the
Canada Immigration Centre, of the City of Cal-
gary, in the Province of Alberta, prohibiting the
said C. J. Williams, Special Inquiry Officer, from
proceeding further with an immigration inquiry
before the said C. J. Williams sitting at the
Canada Immigration Centre, Calgary, Alberta,
and for a further order of this Honourable Court,
directed to the said C. J. Williams, Special Inquiry
Officer, of the Canada Immigration Centre, Cal-
gary, Alberta to show cause why a writ of certio-
rari should not issue to remove into this Honour
able Court, and to quash a report made under
section 22 of the Immigration Act, R.S.C. 1970, c.
I-2 and amendments thereto made by D. R.
Schow, an Immigration Officer of the Canada
Immigration Centre, Calgary, Alberta, dated
March 26th, 1976, directed to the said C. J.
Williams, Special Inquiry Officer, and for a fur
ther writ of certiorari to quash the said report
under section 22 of the Immigration Act as herein-
before described made by the said Immigration
Officer, D. R. Schow, of the Canada Immigration
Centre, Calgary, Alberta on March 26th, 1976.
The notice of motion sets out thirteen specific
grounds for the application of which the following
summary contains those that appear to be the most
important.
The petitioner is a sponsored dependant within
the meaning of the Immigration Regulations,
being sponsored by his wife, Jasveer Kaur Victoria
Manhas (Parhar) a resident Canadian citizen, for
admission to Canada for permanent residence.
As such he is exempt from the provisions of
section 28(1) and (2) of the Regulations.
The petitioner is the holder of an expired Minis
terial Permit and therefore, pursuant to section
8(4) of the Immigration Act, neither the Immigra
tion Officer (Schow) nor the Special Inquiry Offi
cer (Williams) has jurisdiction to rule on the
question whether the petitioner has the right or is
entitled to remain in Canada. Under said section
8(4) only the Minister of Manpower and Immigra
tion, or if authorized by the Minister, the Deputy
Minister or the Director of the Immigration
Branch of the Department, has jurisdiction to
make a deportation order respecting a person
whose permit has been cancelled or has expired.
The petitioner is a person entitled to admission
to Canada. He is not a person subject to be
reported under section 22 of the Immigration Act
and the Immigration Officer had no legal jurisdic
tion to make the report which he made under that
section on March 26th, 1976.
The Special Inquiry Officer lacked any legal or
any jurisdiction to convene or hold a special immi
gration inquiry under the Immigration Act,
respecting the petitioner.
The facts, as contained in the petitioner's affida
vit and not denied by the respondents, may be
stated as follows:
The petitioner entered Canada on a valid non-
immigrant visa on August 12th, 1974. On Decem-
ber 8th, 1974, at Nanaimo in British Columbia, he
married Jasveer Kaur Victoria Parhar, who was
born at Duncan in British Columbia and at the
date of the marriage was seventeen years old.
Pending his wife attaining the age of eighteen
years, at which age she would be eligible to spon
sor him for admission to Canada for permanent
residence, the petitioner was granted a Ministerial
Permit to remain in Canada, under section 8 of the
Immigration Act, on December 24th, 1974, which
permit was extended on July 25th, 1975. This
permit had expired (paragraph D of the petition
er's affidavit). The date of expiry was not stated to
the Court, but was probably prior to February 3rd,
1976.
After attaining the age of eighteen years, the
petitioner's wife applied, pursuant to section
31(1)(a) of the Immigration Regulations to spon
sor him as a sponsored dependant for landed immi
grant status. There is no evidence before the Court
of any final disposition of her application.
The petitioner's affidavit, dated April 9th, 1976,
stated that his wife was expecting a child that
month.
Unhappy differences having arisen between the
petitioner and his wife, she had taken divorce
proceedings against him. Prior to the date of the
affidavit she had obtained a Decree Nisi of
divorce, but the petitioner had retained a solicitor
in Vancouver to appeal the Decree Nisi, as he was
seeking reconciliation with his wife.
On February 3rd, 1976, the petitioner, in the
presence of his solicitor, John A. Sutherland, con
sulted an Immigration Officer, D. R. Schow, at
the City of Calgary, in Alberta, and was advised
by him that he would seek further information
from Ottawa on the petitioner's status and would
advise prior to any action being taken.
On March 29th, 1976, the said D. R. Schow
made a report under section 22 of the Immigration
Act and Regulations, respecting the petitioner,
without advising the petitioner or his solicitor of
the results of his investigation.
By letter bearing the same date, March 29th,
1976, but not received until April 7th, 1976, C. J.
Williams, a Special Inquiry Officer at the Canada
Immigration Centre in Calgary, directed the peti
tioner to report for an immigration hearing at the
said Immigration Centre on April 8th, 1976. The
petitioner attended as directed and objected to the
hearing on the ground that the Special Inquiry
Officer had no jurisdiction to hold the inquiry.
This application was launched the next day.
One further fact needs to be stated. At a date
prior to these proceedings, the petitioner's wife
wrote to the Department of Manpower and Immi
gration withdrawing her sponsorship of the peti
tioner for admission to Canada.
The first question to be considered is whether
the petitioner is a sponsored dependant for admis-
sion to Canada for permanent residence. The evi
dence before the Court indicates only that the
petitioner's wife applied to sponsor him. No dispo
sition of her application is disclosed. If it had been
dealt with favourably it is most unlikely that Mr.
Schow, after stating on February 3rd, 1976, that
he would seek further information from Ottawa on
the petitioner's status, would, on March 29th,
1976, make a report concerning him pursuant to
section 22 of the Immigration Act and Regula
tions. My opinion that no favourable decision was
ever made concerning sponsorship by the petition
er's wife is strengthened by the evidence about
divorce proceedings. Counsel for the petitioner
submitted, without advancing reasons for his opin
ion, that the petitioner's wife could not withdraw
her sponsorship. It is not necessary to examine the
validity of this submission, since in any event the
facts that she had begun divorce proceedings
against the petitioner and had obtained a Decree
Nisi in those proceedings would bear heavily
against a favourable decision. The true situation
cannot be ascertained with certainty on the evi
dence tendered on this motion, but would be ascer
tainable at an inquiry before a Special Inquiry
Officer.
I am unable to agree with counsel's submission
that as the petitioner is the holder of an expired
Ministerial Permit to be in Canada only the Minis
ter (or the Deputy Minister or Director if author
ized by the Minister) has the power to make a
deportation order against him. Section 8 of the
Immigration Act sets out the powers of the Minis
ter to issue a permit (for a specified period not
exceeding twelve months) to extend or cancel it,
and on its cancellation to make a deportation order
respecting the person concerned. Each of these
powers may be exercised by the Minister without
invoking formal procedures by way of a report by
an immigration officer and an inquiry by a Special
Inquiry Officer. On the other hand these powers
given to the Minister do not preclude such formal
procedures where the circumstances warrant them.
Counsel for the Crown stated that in practice these
formal procedures are always followed, because
their rules provide assurance that the case for the
person desiring to enter or remain in Canada will
be fairly and fully presented.
When a Ministerial Permit to be in Canada has
expired the holder ceases to have any legal right to
remain in Canada. He ceases to be a non-immi
grant or to be in the particular class in which he
was admitted as a non-immigrant. He thus comes
within the provisions of section 7(3) of the Immi
gration Act, which require him, if he remains in
Canada to, "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 which provide further that he
shall, for the purposes of the examination and all
other purposes under the Act, be deemed to be a
person seeking admission to Canada.
On February 3rd, 1976, after his Ministerial
Permit had expired, the petitioner's affidavit dis
closes that he went to see D. R. Schow, an Immi
gration Officer, in Calgary. He obviously was
concerned about his status in Canada, because his
affidavit states that Mr. Schow advised him that
he would seek further information on his status
from Ottawa, and advise prior to any action being
taken.
If the petitioner's affidavit is correct in stating
that Mr. Schow made a report under section 22,
concerning the petitioner, without having advised
the petitioner or his solicitor of the result of his
investigation, he may be subject to criticism on
that score, but such failure to advise does not
mean that he was deprived of jurisdiction to report
under section 22.
After considering the facts, in so far as they
have been disclosed on this motion, and reviewing
the relevant provisions of the Immigration Act and
considering a number of cases cited to me by both
counsel, I find no reason for holding that the
Immigration Officer, D. R. Schow acted outside
the scope of his jurisdiction.
With respect to the action of the Special Inquiry
Officer, C. J. Williams, in ordering the petitioner
to report for an immigration hearing in Calgary, I
find that he also was acting within the scope of his
jurisdiction. Section 23(2) of the Immigration Act
provides that where a Special Inquiry Officer
receives a report under section 22 concerning a
person (other than one who seeks to come to
Canada from the United States or St. Pierre and
Miquelon) he shall admit him or let him come into
Canada or may cause such person to be detained
for an immediate inquiry under the Act. The
Special Inquiry Officer thus has statutory author
ity to order an inquiry. Subsection (2) of section
23 applies to the petitioner, who came to Canada
from India.
This is not a proper case for an order of prohibi
tion and certiorari. In my view the inquiry before a
Special Inquiry Officer should proceed. The peti
tioner will not be prejudiced, as all the facts
relevant to his desire to be admitted to Canada for
permanent residence will be before the Special
Inquiry Officer.
The application is dismissed.
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