A-4-77
Sandra Alleyne (Applicant)
v.
Minister of Manpower and Immigration
(Respondent)
Court of Appeal, Urie and Le Dain JJ. and
MacKay D.J.—Toronto, April 12, 1977.
Judicial review — Immigration — Application to review
and set aside deportation order — Applicant admitted as
visitor — Applying for admission as non-immigrant and for
employment visa to be baby-sitter — Manpower official issu
ing "Confirmation of Offer of Employment" — Whether duty
to issue employment visa — Special Inquiry Officer finding
applicant not bona fide non-immigrant — Application dis
missed — Immigration Act, R.S.C. 1970, c. I-2 — Immigra
tion Regulations, s. 3D(2) — Federal Court Act, s. 28.
APPLICATION for judicial review.
COUNSEL:
D. M. Greenbaum, Q.C., for applicant.
K. Braid for respondent.
SOLICITORS:
Moses, Spring, Greenbaum & Weinberg,
Toronto, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment of
the Court delivered orally in English by
LE DAIN J.: This is an application under section
28 of the Federal Court Act to review and set
aside a deportation order made on the ground that
the applicant was not a bona fide non-immigrant.
The applicant was admitted as a visitor for a
period of twenty-one days. Upon the expiration of
this period she reported, in accordance with sec
tion 7(3) of the Immigration Act, and applied for
admission as a non-immigrant with the right to
engage in employment as a baby-sitter for a period
of six months. An official in the Manpower branch
of the Department of Manpower and Immigration
issued a "Confirmation of Offer of Employment",
which had the effect of certifying that the appli-
cant could be authorized to engage in the specified
employment since it was not employment for
which a Canadian citizen or permanent resident
was available. Notwithstanding such approval, an
immigration officer, after examination, refused to
admit the applicant and to issue an employment
visa to her on the ground that she was not a bona
fide non-immigrant.
The applicant was reported, pursuant to section
22 of the Act, to a Special Inquiry Officer, who
conducted an inquiry, formed the opinion that the
applicant was not a bona fide non-immigrant, and
ordered her to be deported. There is no basis, on
any of the grounds of review contemplated by
section 28 of the Federal Court Act, for interfering
with this conclusion, but it is desirable to refer
briefly to the applicant's ground of attack based on
the Immigration Regulations with respect to the
issue of employment visas, since it was apparently
because of this ground that another panel of the
Court directed that the parties should submit
memoranda.
The applicant argues that when the Manpower
branch of the Department approved the offer of
employment to her there was a duty under the
Immigration Regulations to issue an employment
visa to her. The applicant bases this argument on
the imperative terms of subsection 3D(2) of the
Regulations, which reads as follows:
3D..
(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.
We are all of the opinion that this contention is
without merit. The applicant was found to be
inadmissible on the ground that she fell within the
class of prohibited persons described in section
5(p) of the Act—"persons who are not, in the
opinion of a Special Inquiry Officer, bona fide
immigrants or non-immigrants"—and not on the
ground that she was not in possession of an
employment visa. Subsection 3D(2) of the Regula
tions must be read subject to the provisions of the
Act. It cannot be construed as conferring a right to
an employment visa on one who is not otherwise
admissible under the provisions of the Act.
For these reasons the section 28 application will
be dismissed.
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.