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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.