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A-298-76
Minister of Manpower and Immigration (Appellant)
v.
Evangelia and Athanasios Tsakiris (Respondents)
Court of Appeal, Pratte and Le Dain JJ. and Hyde D.J.—Montreal, January 18 and 20, 1977.
Immigration — Appeal from judgment granting writ of
prohibition Postponement of special inquiry pending spon sor's application for writ of mandamus — Duty of Special
Inquiry Officer Nature of writ of prohibition Immigra tion Act, R.S.C. 1970, c. I-2, ss. 22, 23(2), 25—Immigration Regulations, s. 31(1)(h).
Appellant claims that a writ of prohibition enjoining the Special Inquiry Officer from continuing an inquiry under sec tion 22 until the respondent's sponsorship application had been disposed of should not have been granted.
Held, the appeal is allowed. Even if the respondents' daugh ter is entitled to sponsor their admission to Canada, they are not entitled to a postponement of inquiries by a Special Inquiry Officer. The officer has a statutory duty to institute an inquiry once a section 22 report has been made unless he decides to admit the persons concerned. In any event, prohibition lies to prevent an inferior tribunal from exceeding its jurisdiction and should not be mistaken for an injunction or a stay of proceedings.
APPEAL. COUNSEL:
S. Marcoux-Paquette for appellant. Harry Blank, Q.C., for respondents.
SOLICITORS:
Deputy Attorney General of Canada for
appellant.
Harry Blank, Montreal, for respondents.
The following are the reasons for judgment delivered orally in English by
PRATTE J.: Mr. and Mrs. Tsakiris, the respond ents herein, are of Greek nationality. In May 1975, they came to Canada to visit their daughter, a Canadian citizen. They were admitted to this country as visitors under section 7(1)(c) of the Immigration Act. They were still here in March 1976 when they were notified that they would be the subjects of inquiries to be held by a Special Inquiry Officer on March 15, 1976. They then applied to the Trial Division for a writ of prohibi-
tion enjoining the immigration authorities from proceeding with the inquiries. This is an appeal by the Minister of Manpower and Immigration from the judgment of the Trial Division which granted that application.
On July 10, 1975, a few months after the respondents' arrival in Canada, their Canadian daughter appeared before an immigration officer. She told him her wish to sponsor her parents for admission to Canada for permanent residence pur suant to section 31(1)(h) of the Immigration Regulations, Part I. The immigration officer apparently refused to allow her to complete a form of application for the admission of the respondents. The daughter then started proceedings to obtain a writ of mandamus obliging the Department of Manpower and Immigration to allow her to com plete a sponsorship application'.
It is the respondents' contention, which was apparently accepted by the Trial Division, that, in those circumstances, the respondents were entitled to have their inquiries postponed until their daugh ter's application for a writ of mandamus and her application sponsoring their admission to Canada be finally disposed of. This contention is, in my view, ill-founded. Even if it is assumed that the respondents' daughter was entitled to sponsor their admission to Canada, it does not follow, in my view, that they were entitled to a postponement of the inquiries.
The record does not disclose the circumstances in which the decision to hold those inquiries was made; it does not even show whether they were to be held following a section 22 report or pursuant to an order made under section 25. However, counsel agreed at the hearing of the appeal that the inquiries were to be held pursuant to section 23(2) following a section 22 report (made after the respondents had reported under section 7(3)); moreover, counsel for the respondents, apart from arguing that the decision to hold the inquiries was, as he said, "premature", did not contend or even suggest that it was not warranted.
' See [1976] 2 F.C. 407.
Once a section 22 report has been made in respect of a person seeking (or deemed to be seeking) admission to Canada, section 23(2) pro vides that the Special Inquiry Officer, unless he decides to admit that person, must hold "an immediate inquiry". I cannot find anything in the statute from which it could be inferred that the making of a sponsorship application under section 31(1)(h) of the Regulations relieves the Special Inquiry Officer from that statutory duty or deprives him of his power to hold the inquiry. The result would be the same if the decision to hold the inquiry had been made under section 25 pursuant to a section 18 report. I consider it to be obvious that the making of an application by a sponsor does not have the effect either of depriving the Director of his power to order an inquiry under section 25 or of relieving the Special Inquiry Offi cer from his duty to hold such an inquiry once it is ordered.
While this is sufficient to dispose of this appeal, I cannot refrain from observing, before concluding, that counsel for the respondents did not seem to fully understand the real nature of prohibition. Prohibition lies to prevent an inferior tribunal from exceeding its jurisdiction; it must not, there fore, be mistaken for an injunction or a mere stay of proceedings.
For these reasons, I would allow the appeal, set aside the decision of the Trial Division and dismiss the respondents' application with costs in this Court and in the Court below.
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LE DAIN J. concurred.
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HYDE D.J. concurred.
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