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A-642-77
Genette Laurent (Applicant)
v.
G. Perron and Minister of Canada Employment and Immigration (Respondents)
and
Deputy Attorney General of Canada (Mis -en- cause)
Court of Appeal, Ryan and Le Dain JJ. and Hyde
D.J.—Montreal, October 31; Ottawa, November 7, 1977.
Judicial review — Immigration — Minister's certificate cancelled on withdrawal of husband's application for appli cant's admission — Personal application made for permanent residence — Inquiry found inadmissible — No valid subsisting immigrant visa — Validity of Minister's cancellation attacked, and consequently jurisdiction of Special Inquiry Officer — Special Inquiry Officer without jurisdiction to inquire into cancellation of ministerial permit — Ministerial permit is only an administrative decision and hence not reviewable — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28 — Immigra tion Act, R.S.C. 1970, c. I-2, s. 5(t) — Immigration Regula tions, Part I, SOR/62-36 as amended by SOR/72-443.
Minister of Manpower and Immigration v. Hardayal
[1978] 1 S.C.R. 470, followed.
APPLICATION for judicial review. COUNSEL:
•
A. H. J. Zaitlin, Q.C., for applicant.
Claude Joyal for respondents and mis -en-
cause.
SOLICITORS:
A. H. J. Zaitlan, Q.C., Montreal, for applicant.
Deputy Attorney General of Canada for respondents and mis -en-cause.
The following are the reasons for judgment of the Court rendered in English by
LE DAIN J.: This is a section 28 application to set aside a deportation order. Judgment was deliv ered from the bench dismissing the application with the indication that written reasons would 12e delivered later. These are the reasons for judgment.
On September 19, 1973 the applicant was admitted to Canada as a tourist until October 10, 1973. She remained in the country without any apparent extension of her legal status until Octo- ber 1976. On October 10, 1976 she married one Émile Laurent, a landed immigrant, at Montreal. Laurent made an application for her admission to Canada as a sponsored dependent, and on October 14, 1976 she was granted a Minister's permit, pursuant to section 8 of the Immigration Act, R.S.C. 1970, c. I-2, permitting her to remain in the country until October 13, 1977, while her husband's application for her admission was being processed. On May 5, 1977, Laurent filed a statu tory declaration with the immigration authorities in which he, in effect, withdrew his application for the admission of the applicant as a sponsored dependent. On May 24, 1977 the Minister's permit was cancelled effective June 7, 1977. The appli cant reported to the immigration authorities on June 8, 1977, pursuant to section 7(3) of the Immigration Act, and applied to be admitted to Canada as a permanent resident. The immigration officer who examined her made a report pursuant to section 22 of the Act in which he expressed the opinion that the admission of the applicant was prohibited under section 5(t) of the Act in that she was not in possession of a valid and subsisting immigrant visa as required by section 28 of the Immigration Regulations, Part I, SOR/62-36 as amended by SOR/72-443. An inquiry was held, the applicant was found to be inadmissible on this ground, and on September 15, 1977 she was ordered to be deported.
The applicant attacks the deportation order on the ground that the cancellation of the Minister's permit pursuant to section 8(3) of the Act was invalid, and that for this reason the Special Inqui ry Officer exceeded his jurisdiction or otherwise erred in law in ordering her deportation. The applicant argues, on grounds of public policy, that the Immigration Regulations should be so con strued as to preclude the withdrawal by a husband of an application for the admission of his wife as a sponsored dependent, once it has been made, and that in any event such a withdrawal should not be a valid ground for the cancellation of a Minister's
permit which has been granted pending the dispo• sition of such an application. We strongly doubt the merits of this contention, despite the very rea hardship that such withdrawal may cause, but it any event we are all of the opinion that such z ground for attacking the validity of the cancella tion of a Minister's permit cannot be a ground foi attacking the validity of the deportation order. A Special Inquiry Officer does not have jurisdiction to inquire into the question whether a Minister'; permit has been cancelled for a valid reason. He does not have power to review the Minister's exer cise of discretion. A valid exercise of such discre tion is in no sense a condition precedent to his owr jurisdiction. Nor does he err in law in assuming the validity of the cancellation of a Minister'; permit that is valid on its face and concluding that the applicant is without legal status in the country The Supreme Court of Canada has held that the cancellation of a Minister's permit pursuant tc section 8(3) of the Act is an administrative deci sion that is not required to be made on a judicial or quasi-judicial basis'. That is further reason wh) it should not be subject to collateral attack in z section 28 application directed at a deportation order. Such an exercise of discretion must be attacked directly by other recourse if it is to be attacked at all.
The Minister of Manpower and Immigration v. Hardaya [1978] 1 S.C.R. 470.
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