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.
* * *
LE DAIN J. concurred.
* * *
HYDE D.J. concurred.
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.