T-1035-77
Leslie Anthony Pierre and Amy Amelia Pierre
(Applicants)
v.
Minister of Manpower and Immigration and J. R.
Pickwell (Respondents)
Trial Division, Mahoney J.—Vancouver, May 9;
Ottawa, May 11, 1977.
Citizenship and immigration — Application for mandamus
and prohibition — Mandamus to require Minister to dispose
of landed immigrant application and prohibition to prohibit
special inquiry pursuant to s. 25 of Immigration Act, R.S.C.
1970, c. I-2.
The applicant seeks a writ of mandamus requiring the
Minister to dispose of his application to be a landed immigrant,
and a writ of prohibition prohibiting an immigration officer
from proceeding with a special inquiry. The applicant was
refused permission to become a landed immigrant by the
Minister in 1971 and was so informed in a "check-out" letter.
After a special inquiry, as a result of the Minister's decision,
the applicant was ordered deported in March 1974; this order
was quashed by the Immigration Appeal Board in July 1974 on
technical and procedural grounds. The applicant subsequently
was convicted of a criminal offence. This conviction triggered
the proceedings leading to the special inquiry that the applicant
seeks to prohibit. The disposition of the application to be a
landed immigrant is a condition precedent to the inquiry for
which prohibition is sought.
Held, the application is dismissed. The application for man-
damus would appear to have been disposed of in 1971, when
the applicant was notified of the Minister's decision to refuse
him landed immigrant status. Leiba v. M.M. & I. is not
authority for the proposition that a decision communicated by a
check-out letter has not been made or communicated; rather it
is authority for the proposition that a person acting on the
check-out letter does not waive his right to appeal that decision.
The other reason that the application to be landed is said not to
be disposed of stems from the fact that the deportation order
was quashed "purely on procedural and technical grounds".
The Minister's conduct of the case gave the applicant the
grounds, albeit technical, for a successful appeal. The applicant
argues that, in doing so, the Minister had denied him natural
justice for the Minister closed an avenue of appeal that would
have been available had the applicant failed in his appeal to the
Board. This argument fails.
Leiba v. M.M. & I. [1972] S.C.R. 660, discussed.
APPLICATION.
COUNSEL:
D. J. Rosenbloom for applicants.
A. D. Louie for respondents.
SOLICITORS:
Rosenbloom, Germaine & Jackson, Vancou-
ver, for applicants.
Deputy Attorney General of Canada for
respondents.
The following are the- reasons for judgment
rendered in English by
MAHONEY J.: The style of cause herein will be
ordered amended to that set out above. The first
paragraph previously read:
IN THE MATTER OF THE IMMIGRATION ACT, R.S.C. CHAPTER
325 AND AMENDMENTS THERETO
While it does not say so, the Revised Statutes of
Canada of which chapter 325 was the Immigra
tion Act were those of 1952. That Act was
repealed and replaced by R.S.C. 1970, c. I-2 effec
tive July 15, 1971 1 . While the 1952 Act was in
effect during a portion of the time material hereto,
its relevant provisions and those of the present Act
appear identical. All references herein are to the
present Act.
Since it appeared necessary to correct the style
of cause anyway, I have added the names of the
applicants and respondents. Where proceedings
commenced by originating notice of motion are
adversary proceedings, as these plainly are, it is
desirable that the style of cause name the party or
parties seeking judgment and those sought to be
bound by it in the same way as if it were an action
commenced by statement of claim.
As a result of the consent of the respondent
Minister, a writ of mandamus will issue requiring
that the Minister deal with and dispose of the
application of Amy Amelia Pierre to be landed as
an immigrant in Canada, said application having
been made November 26, 1971. That is the entire
relief sought by Amy Amelia Pierre and, accord
ingly, references to the applicant hereafter, unless
expressly to her, are to Leslie Anthony Pierre. He
seeks (1) a writ of mandamus requiring the
respondent Minister to deal with and dispose of his
application to be landed as an immigrant in
Canada and (2) a writ of prohibition (or injunction
1 SOR/71-309; S.C. 1964-65, c. 48, s. 6.
or restraining order) directed to the respondent
Pickwell prohibiting him from proceeding further
with the special inquiry concerning the applicant
that was initiated January 21, 1976.
The applicant entered Canada from Grenada as
a non-immigrant September 16, 1970. He applied
to be landed as an immigrant October 5, 1970. His
application was refused and he was so advised by a
"check-out" letter requesting him to leave Canada
by May 21, 1971, failing which he was ordered to
report to an immigration officer to arrange an
examination under section 22 of the Act 2 . He
retained an immigration consultant. The examina
tion was held and a report made to a Special
Inquiry Officer.
Before the date for the special inquiry under
subsection 23(2) was set, a general review was
begun of all rejected applications for landing by
persons known still to be in Canada'. The appli
cant was invited to have his application reviewed.
Appointments were fixed and letters written to
him. He did not appear. His counsel says he was
"incommunicado". In fact, he had moved from
Toronto to Vancouver, in June 1972, and had not
advised either the consultant or immigration
authorities of his whereabouts. On October 25,
1973, accompanied by the consultant, he presented
himself to an immigration officer in Toronto. The
special inquiry, based on the section 22 report of
August 26, 1971 was held and, in the result, on
March 11, 1974 the applicant was ordered deport
ed. An appeal was taken to the Immigration
2 22. Where an immigration officer, after examination of a
person seeking to come into Canada, is of opinion that it would
or may be contrary to a provision of this Act or the regulations
to grant admission to or otherwise let such person come into
Canada, he may cause such person to be detained and shall
report him to a Special Inquiry Officer.
23. (2) Where the Special Inquiry Officer receives a report
under section 22 concerning a person, other than a person
referred to in subsection (1), he shall admit him or let him
come into Canada or may cause such person to be detained for
an immediate inquiry under this Act.
This appears to have been complementary to the so-called
"amnesty" offered at about the same time to persons illegally
in Canada. An Act to amend the Immigration Appeal Board
Act, S.C. 1973-74, c. 27, s. 8.
Appeal Board and "purely on procedural and tech
nical grounds" the deportation order was quashed
July 11, 1974.
On October 23, 1974, an immigration officer
reported that the applicant was a person falling
within the terms of subparagraph 18(1)(e)(ii) of
the Act and an inquiry by a Special Inquiry Offi
cer was initiated pursuant to section 25 4 . The
inquiry was convened in Vancouver, December 3,
1974. The applicant appeared and, at his request,
the inquiry was adjourned to March 13, 1975
because the applicant's Toronto consultant was not
available. On March 13, it was again adjourned
for the same reason to April 3, 1975. On April 3, it
was adjourned to October 15, 1975 pending the
outcome of the applicant's trial on criminal
charges and, thereafter, for the same reason, the
inquiry was successively adjourned until, on or
about December 22, 1975, immigration authorities
were advised that the applicant had pleaded guilty
and been sentenced to six months imprisonment
commencing December 29. A new section 18
report was directed by the immigration officer to
the Director reporting the most recent conviction
and sentence, as well as the earlier convictions
upon which the October 23, 1974 report had been
based, and also, as a result of the sentence, bring
ing subparagraph 18(1)(e)(iii) into play. The sec
tion 25 inquiry now sought to be prohibited was
directed January 21 and commenced March 24,
1976 and was adjourned several times to permit
these proceedings to be brought.
18. (1) Where he has knowledge thereof, ... an immigra
tion officer ... shall send a written report to the Director, with
full particulars, concerning
(e) any person, other than a Canadian citizen or a person
with Canadian domicile, who
(ii) has been convicted of an offence under the Criminal
Code,
(iii) has become an inmate of a penitentiary, gaol, refor
matory or prison or of an asylum or hospital for mental
diseases,
25. Subject to any order or direction by the Minister, the
Director shall, upon receiving a written report under section 18
and where he considers that an inquiry is warranted, cause an
inquiry to be held concerning the person respecting whom the
report was made.
The application for prohibition must succeed or
fail with the application for mandamus. No
defects in the present section 25 proceedings, per
se, are disclosed. The applicant asserts that dispo
sition of his application to be landed as an immi
grant is a condition precedent to the section 25
inquiry. I accept that.
That application would, however, appear to have
been disposed of and the applicant notified by the
"check-out" letter of May 7, 1971. The applicant
relies on Leiba v. M.M. & 1. 5 as authority for the
contrary proposition.
In that case, a non-immigrant acted upon the
"check-out" letter and left Canada without a sec
tion 22 report and a section 23 inquiry. Later he
returned and, after the expiration of his second
visitor's visa again applied to be landed. The
second application was rejected because of that
time element; a section 22 report was made, a
section 23 inquiry held and a deportation order
issued. It was held that the "check-out" letter was
an administrative practice and "in effect a depor
tation order, made without authority" and that, in
the circumstances, the person acting upon it had
been wrongly deprived of his right to appeal the
rejection of his first application to be landed.
Here, the applicant did not act to his detriment
on the "check-out" letter. The Leiba decision is
not authority for the proposition that a decision
communicated by a "check-out" letter had not
been made or communicated. Rather it is author
ity for the proposition that an applicant who acts
upon it by leaving Canada does not thereby, per
se, waive his right to a section 22 report and a
section 23 inquiry, in other words, his right to
appeal that decision. This applicant has had the
Minister's decision and, in the result, successfully
appealed it.
The other reason that the application to be
landed is said not to have been disposed of stems
from the fact that the deportation order was
5 [1972] S.C.R. 660.
quashed "purely on procedural and technical
grounds" 6 . Because the Minister so handled the
matter that that resulted, the applicant was
"deprived of his appellate rights of having the
Immigration Appeal Board consider his case not
only according to questions of law but on the issue
of whether their discretionary power" under sub
section 15(1) of the Immigration Appeal Board
Act' should be invoked. In other words, by giving
him grounds for a successful appeal against the
deportation order, the Minister had denied him
natural justice by denying him a right that could
only have accrued had his appeal failed. That is
utter nonsense. It does not lie in the applicant's
mouth to complain that, because he succeeded in
an appeal he elected to take, he lost a right
contingent upon his failure.
The application of Leslie Anthony Pierre will be
dismissed. It is by no means clear to me that the
Minister would have dealt properly with the
application of Amy Amelia Pierre in the absence
of this application. This appears to be a proper
case for the parties to bear their own costs.
JUDGMENT
1. On consent, the application of Amy Amelia
Pierre is granted without costs.
2. The application of Leslie Anthony Pierre is
dismissed without costs.
3. The style of cause is amended to accord with
that set forth above.
6 File No. 74-7001, reasons of the Immigration Appeal Board
dated July 30, 1974, p. 5.
R.S.C. 1970, c. I-3.
15. (1) Where the Board dismisses an appeal against an
order of deportation ... the Board may, ... [in certain
specified cases] direct that the execution of the order ... be
stayed, or quash the order or quash the order and direct the
grant or entry or landing to the person against whom the
order was made.
The emphasis is mine. I have not set out the specified cases
since there is no evidence before me as to which might be
pertinent.
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.