T-6273-81
Ranjit Singh Pannu (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
Trial Division, Smith D.J.—Winnipeg, December
18 and 21, 1981; September 1, 1982.
Judicial review — Prerogative writs — Habeas corpus —
Immigration — Detention order — Availability of habeas
corpus in provincial superior courts — Trial Division of
Federal Court possessing neither statutory nor inherent power
to issue habeas corpus simpliciter — Contrary to logic that it
could issue habeas corpus with certiorari in aid — Federal
Court of Appeal having power under s. 28 to review decision
which had to be made on judicial or quasi-judicial basis —
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 18, 25,
28 — Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 27, 29,
30 — Canadian Bill of Rights, S.C. 1960, c. 44 (R.S.C. 1970,
Appendix III], s. 2(c)(iii) — Canadian Charter of Rights and
Freedoms, being Part 1 of the Constitution Act, 1982, Schedule
B, Canada Act 1982, 1982, c. 11 (U.K.), ss. 7, 9, 10(c).
The applicant had been detained pursuant to an order of
detention made by an Adjudicator under the Immigration Act,
1976. The application was for habeas corpus with certiorari in
aid. Although the applicant was free on bail when the applica
tion came on for hearing, counsel requested that the Court rule
on the question whether the Trial Division of the Federal Court
had jurisdiction to grant the relief sought.
Held, the application is dismissed. The Federal Court of
Canada has no inherent powers. Its jurisdiction is to be found
within the four corners of the Act. It was acknowledged that
the Trial Division lacked jurisdiction to issue a writ of habeas
corpus alone but applicant's counsel urged that it had jurisdic
tion to grant certiorari in aid of habeas corpus. An application
of logic would, however, suggest that a court could not have
power to issue a writ in aid of another which it is without power
to issue. The Canadian Bill of Rights and the Canadian
Charter of Rights and Freedoms preserved the right to have
the validity of one's detention tested by way of habeas corpus.
That relief was available in the provincial superior courts.
Although the Trial Division of the Federal Court could not
issue a writ of habeas corpus, it could issue the other preroga
tive writs and grant injunctions. The submission of applicant's
counsel, that the Federal Court of Appeal lacks jurisdiction to
deal with a case of this kind, could not be supported. Under
section 28, the Federal Court of Appeal has jurisdiction to
review and set aside decisions of federal boards except those of
an administrative nature not required to be made on a judicial
or quasi-judicial basis. The order in question resulted in the
deprivation of applicant's liberty, perhaps for a lengthy period,
and the Court of Appeal had jurisdiction to review the order.
The deprivation of the right to freedom is a serious matter and
the Adjudicator had to make his decision in a judicial or
quasi-judicial manner.
CASES JUDICIALLY CONSIDERED
CONSIDERED:
Cavanaugh v. Commissioner of Penitentiaries, [ 1974] 1
F.C. 515 (T.D.); Johns v. Commissioner of Penitentiar
ies, [1974] 1 F.C. 545 (T.D.); Sadique v. Minister of
Manpower and Immigration et al., [1974] 1 F.C. 719
(T.D.); Mitchell v. Her Majesty The Queen, [1976] 2
S.C.R. 570.
REFERRED TO:
National Indian Brotherhood et al. v. Juneau et al. (No.
2), [1971] F.C. 73 (C.A.); In re Peltier, [1977] 1 F.C.
118 (T.D.); Minister of National Revenue v. Coopers and
Lybrand, [1979] 1 S.C.R. 495; [1978] CTC 829.
APPLICATION.
COUNSEL:
K. Zaifman for applicant.
C. Henderson for respondent.
SOLICITORS:
Margoilis, Kaufman, Cassidy, Zaifman &
Swartz, Winnipeg, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for order ren
dered in English by
SMITH D.J.: This is an application filed on
December 17, 1981, for an order of habeas corpus
to hear a motion for the discharge of the applicant
from the Provincial Remand Centre and for an
order of certiorari in aid to quash the order of
detention of the applicant made by Kevin Flood,
an Adjudicator appointed pursuant to the Immi
gration Act, 1976, S.C. 1976-77, c. 52, on Decem-
ber 16, 1981.
The application came before me at the Law
Courts in Winnipeg on December 18, 1981. At the
outset counsel for the Crown raised an objection
that this Court has no jurisdiction to grant an
order of habeas corpus. After considerable argu
ment on this point by counsel for both parties
counsel for the applicant asked for an order for
subpoenas for certain witnesses, which was refused.
Both counsel stated they wished to get affidavits
on behalf of their clients. Counsel for the Crown
had been served with the notice of motion only on
December 17, 1981, and had not had an opportu
nity to consult with his client for instructions for
an affidavit. I adjourned the hearing to Monday,
December 21, 1981, for this purpose.
On Monday morning, both counsel came to my
chambers. The applicant by this time was out on
bail. The question of wrongful confinement was in
effect moot. At the request of both counsel I
ordered that the matter be adjourned sine die,
counsel to submit written argument on the ques
tion of jurisdiction of this Court. Both counsel
expressed a strong desire that the Court endeavour
to clear up this question of jurisdiction, which they
submitted was not clear.
Written argument on behalf of the respondent
was filed on January 26, 1982, but the applicant's
argument was not received till May 20, 1982.
The only issue that has been argued on this
application is that of the jurisdiction of the Trial
Division of the Federal Court to issue an order of
habeas corpus; or of habeas corpus with certiorari
in aid.
The Federal Court of Canada is purely a statu
tory court, created by the Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10. Unlike the English
Courts of Common Law and Equity, it has no
inherent jurisdictional powers. Unlike the Superior
Courts of the Provinces it has not inherited nor
been given all the powers of the English Courts.
Therefore we must seek its jurisdiction within the
four corners of the Act, which in turn is only valid
in so far as its provisions fall within the legislative
powers of Parliament under our federal Constitu
tion. No question of the validity of any provision of
the Federal Court Act arises in this case.
The only sections of the Federal Court Act
which have any bearing on the jurisdiction of the
Trial Division in this case are sections 18, 28(1)
and 25. These sections read:
18. The Trial Division has exclusive original jurisdiction
(a) to issue an injunction, writ of certiorari, writ of prohibi
tion, writ of mandamus or writ of quo warranto, or grant
declaratory relief, against any federal board, commission or
other tribunal; and
(b) to hear and determine any application or other proceed
ing for relief in the nature of relief contemplated by para
graph (a), including any proceeding brought against the
Attorney General of Canada, to obtain relief against a
federal board, commission or other tribunal.
28. (1) Notwithstanding section 18 or the provisions of any
other Act, the Court of Appeal has jurisdiction to hear and
determine an application to review and set aside a decision or
order, other than a decision or order of an administrative
nature not required by law to be made on a judicial or
quasi-judicial basis, made by or in the course of proceedings
before a federal board, commission or other tribunal, upon the
ground that the board, commission or tribunal
(a) failed to observe a principle of natural justice or other
wise acted beyond or refused to exercise its jurisdiction;
(b) erred in law in making its decision or order, whether or
not the error appears on the face of the record; or
(c) based its decision or order on an erroneous finding of fact
that it made in a perverse or capricious manner or without
regard for the material before it.
25. The Trial Division has original jurisdiction as well be
tween subject and subject as otherwise, in any case in which a
claim for relief is made or a remedy is sought under or by
virtue of the laws of Canada if no other court constituted,
established or continued under any of the British North Ameri-
ca Acts, 1867 to 1965 has jurisdiction in respect of such claim
or remedy.
The important thing about paragraph (a) of
section 18 is that there is no mention of habeas
corpus in the list of remedies contained in it, and
that paragraph (b) gives the Trial Division power
to hear and determine applications or other pro
ceedings for relief but that such relief is limited to
relief in the nature of relief contemplated by para
graph (a). There is thus nothing in the section to
support the view that the Trial Division has juris
diction to issue a writ of habeas corpus or give any
relief in the nature of habeas corpus.
Were my opinion based only on my understand
ing of the language of section 18 my conclusion
would be that the Trial Division is not vested with
jurisdiction to grant an application for habeas
corpus simpliciter, but it is not based on that
ground alone, for the limited jurisprudence that
has come to my attention is to the same effect.
Counsel for the respondent, in both his oral and
his written argument cited the case of Cavanaugh
v. Commissioner of Penitentiaries, [1974] 1 F.C.
515 (T.D.), in which an inmate was seeking a
declaration that he was unlawfully confined and
an order for his release. Cattanach J., after noting
that the case was one seeking declaratory relief
under paragraph 18(a) of the Federal Court Act,
and not an application for habeas corpus, said at
page 522:
In section 18 of the Federal Court Act the Trial Division has
not been given jurisdiction to issue a writ of habeas corpus.
That being so and bearing in mind that the declaratory relief
sought in the statement of claim is tantamount to an applica
tion for a writ of habeas corpus, I entertained doubt if I had
jurisdiction to hear this matter but in view of the conclusion I
have reached for the reasons expressed that the plaintiff is not
entitled to the relief sought in the statement of claim, it is not
necessary for me to decide that question nor do I purport to do
so.
This is not a clear expression of judicial opinion
on the point, but it does indicate a doubt whether
he would have had jurisdiction to hear the case if
it had been necessary for him to decide that
question.
In Johns v. Commissioner of Penitentiaries,
[1974] 1 F.C. 545 (T.D.), which was also a case in
which a declaration was sought that the plaintiff
was being unlawfully confined to a penitentiary,
the same learned Judge again stated that the
substance of the relief sought was identical to that
obtainable by way of a writ of habeas corpus and
proceeded to say [at page 550]:
Under section 18 the writ of habeas corpus is excluded from
the exclusive original jurisdiction of the Trial Division.
Elsewhere I have expressed doubt that I have jurisdiction to
determine a matter by way of declaratory relief which is also
the proper matter of an application for a writ of habeas corpus
which is within the inherent jurisdiction of the common law
courts. I still entertain that doubt but I do not purport to decide
that question.
Counsel also cited Sadique v. Minister of Man
power and Immigration et al., [1974] 1 F.C. 719
(T.D.). This was an application for, inter alia, a
writ of habeas corpus, writ of certiorari in aid and
writ of prohibition. Cowan D.J., quoted section 18
and then said [at page 724]:
It seems quite clear, first of all, that the Trial Division of the
Federal Court has no jurisdiction to issue a writ of habeas
corpus. There seems to be a good deal of doubt whether power
to issue a writ of habeas corpus has been conferred upon the
Federal Court at all. In any event, it is quite clear that there is
no power in the Trial Division of the Court to issue a writ of
habeas corpus.
Counsel for the applicant does not dispute the
view that the Trial Division of the Federal Court
has no jurisdiction to issue a writ or order of
habeas corpus alone. His contention is that habeas
corpus alone is not the issue in this case, and that
the real question is whether this Court has juris
diction to grant a writ of certiorari in aid of
habeas corpus. The argument of counsel for the
respondent does not touch on this question at all,
no doubt because he thought it unnecessary. In my
own opinion there is a problem in logic in the
argument for the applicant, namely: Can a Court
have power to issue a writ in aid of another writ
which it has no power to issue and which conse
quently has not come into existence? Is it possible
to issue a writ in aid of something that does not
exist? In such circumstances, where a writ of
habeas corpus does not exist, there is nothing of
which a writ of certiorari can be said to be in aid.
It may be that the foregoing paragraph is only
an attempt to apply logic too narrowly. The
Common Law has not been noted for rigid adher
ence to pure logic. English judges, who made most
of the Common Law, and Canadian judges, to
some extent following in their train, have often
taken a more pragmatic approach to a particular
legal problem. Instead of following without ques
tion what they considered to be the dictates of
strict logic, they have looked for and applied a
solution which in their view would produce the
best result for the particular case before them and
for similar cases in the future. To accomplish their
objective of a truly just solution, they have often
found a basis in the wording of a statute or in legal
principle for distinguishing the case before them
from cases in which strict logic has been applied.
Some further consideration of this problem is
necessary.
In the present case counsel for the applicant
places much reliance on sections 7, 9 and 10(c) of
the Canadian Charter of Rights and Freedoms,
being Part I of the Constitution Act, 1982,
Schedule B, Canada Act 1982, 1982, c. 11 (U.K.),
part of Canada's new Constitution. They read, in
part, as follows:
7. Everyone has the right to life, liberty and security of the
person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice.
9. Everyone has the right not to be arbitrarily detained or
imprisoned.
10. Everyone has the right on arrest or detention
(c) to have the validity of the detention determined by way of
habeas corpus and to be released if the detention is not
lawful.
Counsel referred to Mitchell v. Her Majesty
The Queen, [1976] 2 S.C.R. 570, in which case the
majority of the Supreme Court held that section
18 of the Federal Court Act denied the Court of
Queen's Bench of Manitoba jurisdiction to issue a
writ of certiorari in aid of habeas corpus where
the remedy was being sought against a federal
tribunal. This case and others following it have
established that in such cases section 18 of the
Federal Court Act has deprived the Provincial
High Courts of jurisdiction to issue such a writ.
In Mitchell v. Her Majesty The Queen, Laskin
C.J., dissenting, said, at page 578, after disagree
ing with the view that the appellant in that case
could not bring up the proceedings before the
Board to the Court by means of certiorari in aid:
What to me is more relevant as an affirmation of the right to
habeas corpus is s. 2(c)(iii) of the Canadian Bill of Rights,
and, if necessary, I would read it as embracing certiorari in aid
to make the remedy an effective one and not simply an exhibit
in a show-case.
Subparagraph 2(c)(iii) of the Canadian Bill of
Rights, S.C. 1960, c. 44 [R.S.C. 1970, Appendix
III], enacts:
2.... and in particular, no law of Canada shall be construed
or applied so as to
(c) deprive a person who has been arrested or detained
(iii) of the remedy by way of habeas corpus for the
determination of the validity of his detention and for his
release if the detention is not lawful;
Beginning at the bottom of page 577 Chief
Justice Laskin had said:
As to the availability of habeas corpus through a provincial
superior Court I have no doubt. Nothing but express federal
legislation directed to such an end would exclude a subject's
right to resort to habeas corpus. There is nothing of that sort in
the Federal Court Act. Section 17(5) thereof mentions habeas
corpus as an exclusive remedy in that Court in relation only to
members of the Canadian armed forces serving outside of
Canada; the Act is otherwise silent on habeas corpus, which is
not mentioned either in s. 18 or in s. 28, the two central
provisions on review jurisdiction in respect of federal agencies.
While the words just quoted appear in a dissent
ing judgment, the opinion expressed in them, con
cerning the jurisdiction of a provincial superior
Court to hear an application for habeas corpus, is
not disputed in any of the majority judgments in
the Mitchell case. However, the present applica
tion is not made to a provincial superior Court but
to the Trial Division of the Federal Court. To my
mind this distinction is important. Chief Justice
Laskin's view that a provincial superior Court has
jurisdiction in habeas corpus proceedings is in my
opinion, unassailable. Such Courts have always
had jurisdiction in such proceedings, and no legis
lation has taken that jurisdiction from them. But
the Federal Court, Trial Division, has not been
given that jurisdiction. When Chief Justice Laskin
went further, as quoted supra saying that, if neces
sary, he would read the right to habeas corpus as
embracing certiorari in aid, his words had refer
ence to a Court which had jurisdiction to issue a
writ of habeas corpus, in aid of which writ a writ
or order of certiorari is frequently given. I do not
see how his words can be applied to the Trial
Division of the Federal Court, which has no juris
diction to issue a writ or order of habeas corpus,
either simpliciter or as embracing certiorari in aid.
Even in respect of a provincial Court's jurisdiction,
the majority of the Supreme Court, six of nine
judges, held that a provincial superior Court had
no power to issue a writ of certiorari in aid of
habeas corpus where the claim is for relief against
a decision or order of a federal board, commission
or other tribunal. The majority decision was the
judgment of the Court. Therefore the reasoning of
Chief Justice Laskin, which but for this fact would
have been very persuasive to my mind, and which
was accepted by two judges of the Court, does not
state the prevailing view of the law, even in respect
of the jurisdiction of a provincial superior Court to
issue a writ or order of certiorari in aid of habeas
corpus in cases of this kind.
Neither subparagraph 2(c)(iii) of the Canadian
Bill of Rights nor paragraph 10(c) of the
Canadian Charter of Rights and Freedoms men
tions certiorari. They both preserve the existing
right of a detained person to have the validity of
his detention determined by way of habeas corpus,
but that is all. That right is available in provincial
superior Courts, without, however, under the
Supreme Court's judgment in the Mitchell case,
the assistance of certiorari in aid, in cases where
the decision in question is that of a federal board,
commission or other tribunal. There is nothing in
either Act to suggest an intention to extend the
jurisdiction of the statutory Federal Court, Trial
Division, to include the power to issue a writ of
habeas corpus, with or without certiorari in aid, a
jurisdiction which it has not hitherto possessed and
which it can only obtain by parliamentary
enactment.
Though the Trial Division of the Federal Court
has no power to issue a writ of habeas corpus, it is
not helpless. It has exclusive original jurisdiction
to issue an injunction and to issue the prerogative
writs of certiorari, prohibition, mandamus and
quo warranto. Injunctions, and also writs of cer-
tiorari, prohibition and mandamus, are frequently
applied for and, in appropriate cases, granted. In
many cases a writ of certiorari to quash has
provided an adequate remedy, without any need
for habeas corpus.
The applicant submits that the Federal Court of
Appeal has no jurisdiction to deal with a case of
this kind and therefore that section 25 of the
Federal Court Act comes into play, giving jurisdic
tion to the Trial Division because no other Court
has jurisdiction to grant habeas corpus with cer-
tiorari in aid. It is therefore necessary to consider
the jurisdiction of the Federal Court of Appeal.
As we have seen, section 28 of the Federal
Court Act (quoted supra) provides that notwith
standing section 18 or any other Act the Court of
Appeal has jurisdiction to hear and determine an
application to review and set aside a decision or
order, other than a decision or order of an
administrative nature not required by law to be
made on a judicial or quasi-judicial basis, made by
or in the course of proceedings before a federal
board, commission or other tribunal, upon the
grounds set out in paragraphs (a), (b) or (c) of the
section. The Court's jurisdiction is limited as set
out in the section and no further. Thus its jurisdic
tion is not excluded by the mere fact that the
decision or order in question is one of an adminis
trative nature. To exclude the Court's jurisdiction
it is necessary that the decision or order is not
required to be made on a judicial or quasi-judicial
basis.
Counsel for the applicant submits that the order
of detention in this case is not one of a kind
contemplated by section 28 of the Federal Court
Act, because it is not a final order that determines
the rights of the applicant that are before the
Adjudicator in the inquiry being conducted by
him. He further submits that the order is not one
required by law to be made on a judicial or
quasi-judicial basis. In support of the first of these
arguments he referred to two judicial opinions.
The first of these is the following statement of
Jackett C.J., in the Court of Appeal, in National
Indian Brotherhood et al. v. Juneau et al. (No. 2),
[1971] F.C. 73 (C.A.), at page 79 that eminent
judge said:
I do not pretend to have formulated any view as to what the
words "decision or order" mean in the context of s. 28(1), but it
does seem to me that what is meant is the ultimate decision or
order taken or made by the tribunal under its mandate and not
the myriad of incidental orders or decisions that must be made
in the process of getting to the ultimate disposition of a matter.
The second is the following statement by
Mahoney J., in the Trial Division in In re Peltier,
[1977] 1 F.C. 118 (T.D.), at pages 121-122:
The meaning of the word "decision" as used in section 28 is the
subject of a developing jurisprudence. Generally, the pattern
emerging in the Court of Appeal's own judgments seems to be
that it will review final orders or decisions only—final in the
sense that the decision or order in issue is the one that the
tribunal has been mandated to make—a decision from which
legal rights or obligations flow. It will not review the myriad of
decisions or orders that must usually be made along the way in
any proceeding toward that final decision.
It is clear from the opening words of the state
ment of Chief Justice Jackett that he had not
come to a final opinion on this matter and that
what followed should not be taken to be his final
view. Mahoney J.'s position was similar. He spoke
of the meaning of "decision" as being the subject
of a developing jurisprudence. In my opinion nei
ther of the quoted statements is intended to be a
final statement of opinion, to apply in all circum
stances. The words used in section 28, to my mind,
are capable of a narrower interpretation, at least
permitting the possibility of some exceptions. The
words used refer to a decision made "by or in the
course of proceedings before a federal board, com
mission or other tribunal". I emphasize the words
"in the course of proceedings". They do not obvi
ously restrict jurisdiction to decisions or orders
made at the end of proceedings when a final
decision on the matters at issue has been reached.
I fully agree that not every incidental order made
during the course of a proceeding is intended to be
or should be subject to review by the Court of
Appeal, but I think an order of detention in cir
cumstances such as we have in this case may be
intended to be subject to review. The order result
ed in the applicant being immediately deprived of
his liberty, possibly until final disposition of the
inquiry that had been commenced by the
Adjudicator. In view of the fact that the applicant
had applied for refugee status in Canada which
application could take a long time to deal with, the
applicant might be deprived of his liberty for a
lengthy period, possibly with no adequate relief
available, unless a review by the Court of Appeal
on application under section 28 is legally permis
sible. My conclusion is that in the circumstances of
this case the Court of Appeal would have jurisdic-
tion under section 28 to hear an application to
review the detention order.
In his submission that the order of detention in
this case is not one required by law to be made on
a judicial or quasi-judicial basis, counsel for the
applicant relies on the tests described by Dickson
J. in the Supreme Court of Canada in The Minis
ter of National Revenue v. Coopers and Lybrand,
[1979] 1 S.C.R. 495; [1978] CTC 829. He agrees
that the detention order accords with one of those
tests, namely, that it does affect the rights of the
applicant, but notes that this factor alone does not
necessarily carry with it the obligation to act
judicially.
The word "necessarily" in the referred to test
indicates that the fact that a decision affects the
rights of a person does not of itself mean, in all
cases, that the decision must be made in a judicial
or quasi-judicial manner. On the other hand it
clearly does not mean that such a fact never, by
itself, has this result. Whether, in such a case, the
decision must be made in a judicial or quasi-judi
cial manner will depend on the circumstances of
the case. What rights of the person will be affected
by the decision, also in what manner and to what
extent they will be affected, have a bearing on this
matter. If the right affected is of minor importance
and if the effect is slight and of brief duration,
something more will be required in an administra
tive decision in order to place the official making it
under an obligation to act in a judicial or quasi-
judicial manner. But if the right affected is one of
serious importance and if the decision will take
away that right altogether, even for a relatively
short period of time, these circumstances may very
well require that the decision be made in a judicial
or quasi-judicial manner.
In the present case the detention order deprived
the applicant of his personal freedom for the
period during which the inquiry was adjourned—
December 16 to December 30, 1981. Personal
freedom is one of the most important rights of an
individual under the law, and deprivation of it for
two weeks is a serious matter. In my view the
Adjudicator was therefore required to make his
decision in a judicial or quasi-judicial manner.
There are further grounds on which my conclu
sion is based. The inquiry by the Adjudicator in
this case was being made pursuant to a report and
direction given under the authority of the Deputy
Minister under subsection 27(3) of the Immigra
tion Act, 1976. The report had been made under
paragraph 27(2)(e), and stated that the applicant
had entered Canada as a visitor on July 31, 1981,
that he was authorized to visit in Canada until
October 13, 1981, that he remained in Canada
beyond that date without authorization and that
he had thus ceased to be a visitor.
Subsection 27(4) requires the inquiry to be held
as soon as reasonably practicable, concerning the
person with respect to whom the report is made.
The inquiry is for the purpose of determining if
that person has in fact, in the words of paragraph
27(2)(e) "entered Canada as a visitor and
remain[ed] therein after he has ceased to be a
visitor."
By subsection 29(1) the inquiry is to be held in
the presence of the person affected, wherever prac
ticable. By subsection 30(1) the person affected
must be informed that he has the right to obtain
the services of a barrister or solicitor or other
counsel and to be represented by such counsel at
the inquiry. By subsection 30(2) the adjudicator
may receive and base his decision upon evidence
adduced at the inquiry and considered credible or
trustworthy by him in the circumstances of each
case.
Nowhere in the Act is the inquiry described as a
hearing, but it seems obvious that it has the same
purpose as a hearing. The requirement that the
person in respect of whom the inquiry is being held
be present, and his right to be represented by
counsel surely mean that he can question the
evidence presented against him and adduce evi
dence for the purpose of refuting it. To my mind
he may also make representations against being
detained in custody.
The adjudicator is clearly expected to base his
decision on the evidence available to him, which
may be only the evidence adduced at the hearing.
He must weigh the evidence. In so doing he must
act in a judicial or quasi-judicial manner.
In the result, I hold that under the terms of
section 28 of the Federal Court Act, the Federal
Court of Appeal has jurisdiction to hear and deter
mine an application to review and set aside a
decision or order such as the detention order made
by the Adjudicator, in the circumstances of this
case.
In view of my decision concerning the jurisdic
tion of the Federal Court of Appeal, there is no
need to consider the argument of the applicant's
counsel concerning the effect of section 25 of the
Federal Court Act, which, if my decision is right,
has no application in this case.
The application before me is dismissed on the
ground that the Trial Division has no jurisdiction
to deal with it.
The respondent is entitled to 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.