T-274-77
Talat Mahmood (Applicant)
v.
Gaston Perron (Respondent)
and
Minister of Manpower and Immigration
(Mis -en-cause)
Trial Division, Marceau J.—Montreal, March 7,
1977; Ottawa, March 16, 1977.
Prerogative writs — Immigration — Special inquiry —
Application submitted for employment visa at inquiry —
Hearing not adjourned to consider application — Application
for prohibition or mandamus — Whether respondent required
to adjourn until after consideration of employment visa
application — Immigration Act, R.S.C. 1970, c. I-2, ss. 7(3),
11(1), 22, 26 — Immigration Regulations, ss. 3c(1)(a), 31)(2).
The respondent was conducting a special inquiry, called
because an immigration officer's report expressed the opinion
that the applicant did not meet the conditions required for
immigration. At the hearing the applicant expressed his wish to
obtain an employment visa and submitted a written offer of
employment. The respondent agreed to the filing of the applica
tion for an employment visa but continued with the hearing.
The applicant contends that the special inquiry should have
been suspended until the visa application had been heard. This
application, for prohibition or mandamus, was brought during
an adjournment of the special inquiry.
Held, the application is dismissed. It is doubtful that
respondent in his capacity as Special Inquiry Officer was
empowered to decide the application for an employment visa.
The Special Inquiry Officer has a very precise function to fulfil,
and at that point his role overlaps the general duties which may
be conferred upon him in his capacity as an "immigration
officer". Further, if applicant was without a visa, the applica
tion itself conflicted with subsection 7(3) of the. Immigration
Act and paragraph 3c(1)(a) of the Immigration Regulations.
The Court cannot admit that respondent was required to
suspend his hearing immediately, and request the opinion of the
national employment service. If his conclusions do not take into
account these parts of his inquiry, required by the Act, or if he
takes them into account in an improper manner, adequate
remedies are open to applicant. At this stage, however, there is
no basis for issuing a writ of prohibition to prevent respondent
from continuing his inquiry, and nothing requiring that a writ
of mandamus be issued ordering him to act in one way or
another.
APPLICATION.
COUNSEL:
William G. Morris for applicant.
Suzanne Marcoux-Paquette for respondent.
SOLICITORS:
William G. Morris, Montreal, for applicant.
Deputy Attorney General of Canada for
respondent.
The following is the English version of the
reasons for order rendered by
MARCEAU J.: Applicant here requests that a
writ of prohibition and a writ of mandamus be
issued against respondent, who is a Special Inquiry
Officer of the Department of Manpower and
Immigration within the meaning of section 11(1)
of the Immigration Act'.
Applicant, a Pakistani, entered Canada as a
tourist in May 1973. He was subsequently able to
remain in the country by applying for and obtain
ing several extensions of his visitor's permit. The
last of these extensions expired on April 21, 1976.
On May 27 following, an immigration officer
reported to a Special Inquiry Officer under section
22 of the Act, mentioning that in his opinion
applicant could not be admitted to Canada as an
immigrant because he did not fulfil the conditions
required. A special inquiry had to be held as a
result (section 26 of the Act), and it is in connec
tion with this inquiry, of which respondent was in
charge, that these proceedings were instituted.
This inquiry was planned for January 12, 1977.
It can be seen that several months elapsed after
the report leading to the inquiry was issued, and
the reason for this delay should be made clear. On
May 27, 1976, the day on which the report was
made, applicant had filed a "statutory declara
tion" to be recognized as a refugee, and thereby
obtain the status of a permanent resident. The
Minister decided to proceed at once to an exami
nation of the claim, as he often does in cases of
this kind, in order to avoid the lengthy delays
which would otherwise be involved, since except
for the Minister, only the Immigration Appeals
Board may consider claims of this kind, and then
only when it has to deal with an appeal against a
deportation order. It is for this reason that the
special inquiry required by the report under sec
tion 22 was suspended, and on June 15 applicant
' R.S.C. 1970, c. I-2.
was examined on his claims concerning refugee
status. At the conclusion of this examination on
June 15, 1976 the officer responsible had to refer
the case, as is usual in such proceedings, for the
consideration of a special interdepartmental com
mittee called the "Advisory Committee on the
Status of Refugees". He then thought it proper to
issue a special employment visa to applicant, in
accordance with category "Y" of official docu
ment I-23 of February 16, 1976 (section 3, dealing
with persons whose application, based on a claim
to refugee status, is under consideration), and he
entered as the expiry date of this special visa
September 15, 1976 "or until finalization of case,"
and also entered in the appropriate space the
following observation: "case dealt by S.I.O. await
ing Refugee projet [sic] 'Y'." The advisory com
mittee issued its decision on October 22, 1976,
expressing the opinion that applicant could not be
considered a refugee, and on November 16 follow
ing, the latter was summoned for the special
inquiry required by the May 27 report, which had
been suspended in the interim.
Accordingly on January 12 applicant appeared
with his counsel. The inquiry began and proceeded
in the usual manner, with the customary explana
tions. The May 27 report and the opinion of the
advisory committee on refugee status were entered
in the record. After some time, however, since it
was late and a witness was missing, the inquiry
was adjourned to a later date chosen in consulta
tion with counsel for the applicant. A few days
later the proceedings at bar were instituted.
Applicant argued in support of his application
that although he had stated at his examination
that he intended to apply for admission as a non-
immigrant refugee, and at the same time expressed
his wish to obtain an employment visa, submitting
a written offer of employment from a Montreal
company, respondent had nevertheless continued
with his inquiry, thus contravening the provisions
of subsection 3D(2) of the Immigration
Regulations 2 . He maintained that respondent
should at that time have considered only his
application for an employment visa and for this
purpose should have suspended the inquiry so as to
2 SOR/73-20.
obtain the opinion of the national employment
service, as required by the said subsection 3D(2) 3 .
Rather, he stated, after agreeing to the filing of
the offer of employment respondent continued the
inquiry, and clearly intends to continue it as such
on the date to which he adjourned it.
Applicant's claims do not seem justified to me.
First, I doubt that respondent in his capacity as a
Special Inquiry Officer was, in the circumstances,
empowered to decide the application for an
employment visa as it emerged from the answers
given by applicant and his counsel. This doubt is
based, first, on my opinion that the Special Inquiry
Officer has a very precise function to fulfil, and at
that point his role overlaps, so to speak, the gener
al duties which may be conferred upon him in his
capacity as an "immigration officer". This doubt is
also based on the fact that if applicant was without
a visa (and his application only made sense if he
was in fact without a visa), the application itself
conflicted with the provisions of subsection 7(3) of
the Act and paragraph 3c(1) (a) of the
3 The following is the text of subsection 3D(2) of the
Regulations:
(2) Where an issuing officer receives an application for an
employment visa, he shall issue the employment visa unless
(a) it appears to him from information provided by the
national employment service that
(i) a Canadian citizen or permanent resident qualified for
the employment in which the applicant wishes to engage in
Canada is willing and available to engage in that employ
ment and, in the case of a person other than a self-
employed person, there is no reason to believe that the
prospective employer will not, for a reason relating to the
nature of the employment, accept a Canadian citizen or
permanent resident for such employment,
(ii) a lawful strike is in progress at the place where the
applicant wishes to engage in employment and the employ
ment in which the applicant wishes to engage would
normally be carried on by a person who is on strike, or
(iii) a labour dispute or disturbance other than a lawful
strike is in progress at the place of employment and the
chances of settling the dispute or disturbance are likely to
be adversely affected if the applicant engages in employ
ment at that place; or
(b) the applicant has violated the conditions of any employ
ment visa issued to him within the preceding two years.
Regulations 4 . However, I do not find it necessary
to go beyond an expression of doubt in this regard.
What I cannot admit is that respondent was
required to suspend his inquiry immediately, and
request without further ado the opinion of the
national employment service. There is nothing to
suggest that respondent intended to refrain from
examining applicant in accordance with the
requirements of the Act. Respondent has duly
noted applicant's application and agreed to the
filing of the offer of employment. If, as applicant
maintains, his conclusions do not take into account
these parts of his inquiry, required by the Act, or if
it takes them into account in an improper manner,
adequate remedies are open to him. At this stage,
however, there is no basis for issuing a writ of
prohibition to prevent respondent from continuing
his inquiry, and nothing requires that a writ of
mandamus be issued ordering him to act in one
way or another.
Accordingly, the application must be dismissed.
ORDER
The application is dismissed with costs.
4 Subsection 7(3) of the Immigration Act reads as follows:
Where any person who entered Canada as a non-immi
grant ceases to be a non-immigrant or to be in the particular
class in which he was admitted as a non-immigrant and, in
either case, remains in Canada, he shall 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 shall, for the purpose of the examination and all
other purposes under this Act, be deemed to be a person
seeking admission to Canada.
Paragraph 3c(1)(a) of the Regulations reads as follows:
(1) Subject to section 3F,
(a) no person may enter Canada as a non-immigrant for
the purpose of engaging in employment, and
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.