T-6007-81
Sukhmander Singh (Applicant)
v.
Minister of Employment and Immigration and
Paul Tétreault in his capacity as Adjudicator
under the Immigration Act, 1976 and Attorney
General of Canada (Respondents)
Trial Division, Nitikman D.J.—Winnipeg, Janu-
ary 13 and February 5, 1982.
Judicial review — Prerogative writs — Mandamus —
Immigration — Inquiry initiated following report made under
s. 27(2) of Act — Upon Adjudicator's finding that applicant's
visiting status had expired, applicant claimed refugee status
— Adjudicator proposed to continue hearing to determine
whether, but for applicant's claim for refugee status, removal
order or departure notice would be made — Applicant object
ed but Adjudicator refused to adjourn — Applicant seeks
adjournment of inquiry and determination of claim for refugee
status — Whether Adjudicator erred in refusing to adjourn
inquiry — Whether removal order or departure notice should
be made only after determination that applicant not Conven
tion refugee — Immigration Act, 1976, S.C. 1976-77, c. 52, ss.
2, 27(2), 45(1), 46(1),(2), 115(1)(q) — Immigration Regula
tions, 1978, SOR/78-172, s. 35(3).
The applicant entered Canada as a visitor. A few months
after the expiration of his, visiting status, an immigration
inquiry was initiated by way of a report made pursuant to
subsection 27(2) of the Immigration Act, 1976. Upon the
Adjudicator's finding that the applicant's visiting status had
expired, the applicant claimed refugee status. The Adjudicator
proposed to continue the hearing in order to determine, but for
the applicant's claim for refugee status, whether, in the circum
stances, a removal order or a departure notice would be made,
and then to adjourn the inquiry, pursuant to subsection 45(1) of
the Act. The applicant objected to this method of proceeding
but the Adjudicator refused to adjourn the inquiry. The appli
cant now seeks, by order of prohibition and writ of mandamus,
the adjournment of the inquiry and the determination of his
claim for refugee status. The issues are whether the Adjudica
tor erred in not adjourning the hearing as soon as he found that
the applicant's visiting status had expired and whether a remov
al order or a departure notice should be made only after it has
been determined that the applicant was not a Convention
refugee.
Held, the motions for a writ of mandamus and for an order
of prohibition fail, and the matter is referred back to the
Adjudicator to continue the inquiry pursuant to subsection
45(1) of the Act. The applicant confuses the term "would be
made" in subsection 45(1) of the Act (used in relation to a
removal order or a departure notice) with the term "shall
make" in subsection 46(2). No removal order or departure
notice is made or issued before adjournment. The Adjudicator
was required to continue the inquiry to determine, but for the
applicant's claim that he is a Convention refugee, whether a
removal order would be made or a departure notice would
issue; and having made that determination, adjourn the inquiry
so that the applicant's claim to refugee status could be dealt
with in the manner set out in the Act.
Ergul v. Minister of Employment and Immigration [ 1982]
2 F.C. 98, applied.
MOTIONS.
COUNSEL:
Kenneth Zaifman for applicant.
Brian Hay for respondents.
SOLICITORS:
Margolis Kaufman Cassidy Zaifman Swartz,
Winnipeg, for applicant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for judgment
rendered in English by
NITIKMAN D.J.: In his notice of motion, the
applicant applies inter alla:
(a) For an Order enjoining and prohibiting PAUL TE-
TREAULT, an Adjudicator, from proceeding further with the
conduct of an Immigration Inquiry initiated against the
Applicant by way of a Section 27(2) report under the said
Immigration Act and commenced on the 21st day of Novem-
ber, A.D. 1981.
(b) For a Writ of Mandamus compelling PAUL TETREAULT
to adjourn the Immigration Inquiry commenced on the 21st
day of November, A.D. 1981.
(c) For a Writ of Mandamus compelling PAUL TETREAULT
to direct that the Applicant be examined under oath by a
Senior Immigration Officer respecting the claim of the
Applicant to be a Convention refugee pursuant to the Immi
gration Act (1976) and the Immigration Act Regulations
(1978).
(d) For a Writ of Mandamus compelling the Minister of
Employment and Immigration to determine the claim of the
Applicant to be a Convention refugee in accordance with the
provisionof the Immigration Act (1976) and the Immigra
tion Act Regulations (1978).
The facts on which there is no dispute are set
out in paragraphs 1 to 6 of the applicant's affidavit
in support of his motion and are as follows:
1. THAT I am the Applicant herein and as such have true
knowledge of the facts hereinafter deposed to by me except
where same are stated to be based on information and belief.
2. THAT I am a citizen of India and my date of birth is
December 10, 1955.
3. THAT I arrived at Mirabel, Quebec on May 19, 1981 as a
visitor with status until June 20, 1981.
4. THAT on or about June 20, 1981 I attended at the Canada
Immigration Centre, Third Floor, 175 Carlton Street, Win-
nipeg, Manitoba to make a claim for refugee status pursuant
to the Immigration Act 1976 and amendments thereto. I was
advised by an Immigration Officer at that office that I could
make a claim for refugee status at an Immigration Inquiry
after my visitor's status had expired.
5. THAT an Immigration Inquiry was commenced on Novem-
ber 21, 1981 before Adjudicator, Paul Tetreault.
6. THAT Adjudicator Paul Tetreault found that my visitor's
status had expired and was thereby found described pursuant
to Section 27(2)(e) of the Immigration Act 1976.
Subsequent to the Adjudicator making a finding
that the applicant's visiting status had expired, the
applicant, through his counsel, advanced a claim
to refugee status.
Under the Immigration Act, 1976, S.C. 1976-
77, c. 52, (the Act), "Convention refugee" means:
2....
... any person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, mem
bership in a particular social group or political opinion,
(a) is outside the country of his nationality and is unable or,
by reason of such fear, is unwilling to avail himself of the
protection of that country, or
(b) not having a country of nationality, is outside the country
of his former habitual residence and is unable or, by reason
of such fear, is unwilling to return to that country;
Subsection 45(1) and section 46 of the Act are
as follows:
45. (1) Where, at any time during an inquiry, the person who
is the subject of the inquiry claims that he is a Convention
refugee, the inquiry shall be continued and, if it is determined
that, but for the person's claim that he is a Convention refugee,
a removal order or a departure notice would be made or issued
with respect to that person, the inquiry shall be adjourned and
that person shall be examined under oath by a senior immigra
tion officer respecting his claim.
46. (1) Where a senior immigration officer is informed
pursuant to subsection 45(5) that a person is not a Convention
refugee, he shall, as soon as reasonably practicable, cause the
inquiry concerning that person to be resumed by the adjudica
tor who was presiding at the inquiry or by any other adjudica
tor, but no inquiry shall be resumed in any case where the
person makes an application to the Board pursuant to subsec
tion 70(1) for a redetermination of his claim that he is a
Convention refugee until such time as the Board informs the
Minister of its decision with respect thereto.
(2) Where a person
(a) has been determined by the Minister not to be a Conven
tion refugee and the time has expired within which an
application for a redetermination under subsection 70(1)
may be made, or
(b) has been determined by the Board not to be a Convention
refugee,
the adjudicator who presides at " the inquiry caused to be
resumed pursuant to subsection (1) shall make the removal
order or issue the departure notice that would have been made
or issued but for that person's claim that he was a Convention
refugee.
Having made his finding that the applicant's
visiting status had expired, the Adjudicator pro
posed to continue the inquiry in order to deter
mine, but for the applicant's claim that he is a
Convention refugee, whether in the circumstances
which the continued inquiry would disclose a re
moval order or a departure notice would be made
or issued against the applicant, and then to
adjourn the inquiry, following which the applicant
"shall be examined under oath by a senior immi
gration officer respecting his claim" (subsection
45(1)).
The applicant objected to the Adjudicator con
tinuing the hearing after he made his finding that
the applicant's visiting status had expired, taking
the position that the inquiry should then be
adjourned and the question of the Convention
refugee claim be dealt with. The Adjudicator
refused an adjournment and the applicant then
stated he desired to test the validity of the
Adjudicator's ruling, and it was for that purpose
that the hearing was held in abeyance, but not
adjourned.
The applicant's contention is that the Adjudica
tor erred in not adjourning the hearing as soon as
he found that the applicant's visiting status had
expired and that only after it has been determined
that the applicant was not a Convention refugee
that a removal order or a departure notice should
be made or issued against the applicant.
I do not agree with the applicant's contention.
The applicant confuses the term "would be made"
in subsection 45(1) with "shall make" in subsec
tion 46(2).
To assure against misunderstanding, I empha
size that what the Adjudicator proposed to do, and
indeed what he was required to do pursuant to
subsection 45 (1) of the Act was to continue the
inquiry to determine, but for the applicant's claim
that he is a Convention refugee, whether a removal
order would be made or a departure notice would
issue; and having made that determination, to
adjourn the inquiry so that the applicant's claim
that he is a Convention refugee could be dealt with
in the manner set out in the Act.
No removal order or departure notice is made or
issued before adjournment. It is simply a determi
nation by the adjudicator that, but for the appli
cant's claim that he is a Convention refugee, the
removal order or departure notice would be made
or issued with respect to the applicant.
After finding that the applicant's visiting status
had expired, evidence at the continued inquiry
covering, for example, the financial position of the
applicant, whether he was willing and able, or not,
to defray the expense entailed in his departure
from Canada to the country he emigrated from, as
well as other pertinent information, would prob
ably form a basis on which the Adjudicator would
determine whether a removal order would be
made, or a departure notice would issue.
If the applicant's claim that he is a Convention
refugee is eventually determined in his favour, the
inquiry shall be caused to be resumed by the
Adjudicator who presided at the inquiry up to
adjournment, or by another adjudicator, who shall
allow the applicant to remain in Canada.
But if the applicant's claim that he is a Conven
tion refugee is eventually rejected, the inquiry
shall be caused to be resumed by the Adjudicator
who presided at the inquiry before adjournment, or
by another Adjudicator, and the Adjudicator who
presides at the resumed inquiry shall make the
removal order or issue the departure notice that
would have been made or issued but for the appli
cant's claim that he was a Convention refugee.
In the result, the applicant's motion for a writ of
mandamus compelling the Adjudicator to adjourn
the immigration inquiry commenced the 21st day
of November, A.D. 1981 is refused. Having
refused the motion for mandamus, it follows the
other motions for writs of mandamus and the
motion for a writ of certiorari fail as well.
The matter is referred back to the Adjudicator,
Paul Tétreault, to resume and continue the inquiry
until such time as he determines that, but for the
applicant's claim that he is a Convention refugee,
a removal order or departure notice would be
made or issued in respect of the claimant. Upon
making the determination, the Adjudicator shall
adjourn the inquiry and the applicant's claim that
he is a Convention refugee will then be determined
in accordance with the provisions of the Act, as
already set out.
I have studied and found most helpful the rea
sons for judgment delivered orally on October 9,
1981 by the Honourable Mr. Justice Louis Pratte
of the Federal Court of Appeal and concurred in
by the other members of the Court in the case of
Ergul v. Minister of Employment and Immigra
tion [[1982] 2 F.C. 98]. It has greatly simplified
arriving at my decision herein.
Subsection 35(3) of the Immigration Regula
tions, 1978, SOR/78-172, made pursuant to para
graph 115(1)(q) of the Act and reading as follows:
35....
(3) Where an inquiry has been adjourned pursuant to the
Act or these Regulations, it may be resumed by an adjudicator
other than the adjudicator who presided at the adjourned
inquiry with the consent of the person concerned or where no
substantive evidence has been adduced.
does not apply in the within case as the Adjudica
tor, as already pointed out, refused to adjourn the
inquiry and will now continue the inquiry as ear
lier set out.
It is only if the Adjudicator, for some
unforeseen reason, were to become unable to
resume the inquiry, then because he has not yet
made his determination as earlier set out, it could
be resumed by another adjudicator only with the
consent of the applicant. Failing such consent
being forthcoming, the matter would have to be
referred back to the appropriate senior immigra
tion officer to cause a new inquiry to be held.
This is in keeping with the decision in Ergul,
supra, which sets out clearly and concisely the
circumstances under which subsection 35(3) of the
Regulations becomes operative, and why it
becomes inoperative after an inquiry has been
correctly adjourned by the adjudicator who corn-
menced said inquiry.
There will be no costs.
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.