A-242-81
J. M. O'Grady (Appellant) (Respondent)
v.
Byron George Whyte (Respondent) (Appellant)
Court of Appeal, Heald, Urie JJ. and Kelly D.J.—
Toronto, May 20; Ottawa, June 1, 1982.
Judicial review — Prerogative writs — Mandamus —
Immigration — Appeal from order of mandamus issued by
Trial Division compelling Immigration Centre Manager to
consider and render formal decision on respondent's applica
tion to sponsor daughter as permanent resident — Respondent
submitting application to sponsor daughter to Canada Immi
gration Centre — Application for landing not submitted —
Appellant refusing to consider respondent's application —
Appeal allowed on ground that, in absence of application for
landing appellant under no duty to make decision on respond
ent's application — Immigration Act, R.S.C. 1952, c. 325
Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 9(1), 79(1) —
Immigration Regulations, 1978, SOR/78-172, ss. 2(1), 41(1).
The respondent is a naturalized citizen of Canada. His
daughter, born of a common law union in which the respondent
was involved in Jamaica, entered Canada as a visitor. On the
expiry of the second extension of the daughter's visitor status,
the respondent submitted an application to sponsor her admis
sion as a landed immigrant to a local Canada Immigration
Centre. At no time did either the daughter or anyone acting on
her behalf submit an application for landing. The appellant,
Manager of the Centre, refused to consider the sponsorship
application on the ground that, because the daughter was born
of a common law union, she did not come within the definition
of a "family class" member in the Immigration Act, 1976. The
respondent was also advised by the appellant that he had no
right to an appeal of the decision as only sponsors of persons
within the "family class" have that right. The respondent
brought a motion before the Trial Division and was granted an
order of mandamus requiring that the appellant consider his
sponsorship application. The appellant appealed the order on
the ground that, in the absence of a corresponding application
for landing, he was under no duty to make a decision on the
respondent's application to sponsor. He further contended that
in that mandamus only issues to compel a public authority to
perform duties when the applicant establishes both that a duty
is owed to him and that, at the time the relief is sought, the
public authority had a present duty to perform that obligation,
it should not lie in this case.
Held, the appeal is allowed. Subsection 79(1) of the Immi
gration Act, 1976, provides for the sponsorship of an applica
tion for landing rather than the sponsorship of an individual as
did the Immigration Act of 1952. Based on this, an application
to sponsor is not valid until it is substantiated by the submission
of an application for landing. In the absence of an application
for landing an immigration official cannot make a decision on a
sponsorship application and is therefore under no duty to make
such a decision. An order of mandamus will not lie to compel
an official to perform an act which he is not yet under an
obligation to do.
CASES JUDICIALLY CONSIDERED
APPLIED:
Karavos v. The City of Toronto et al., [1948] O.W.N. 17
(C.A.).
DISTINGUISHED:
Lawrence et al. v. Minister of Employment and Immi
gration et al., [1980] 1 F.C. 779 (T.D.); Minister of
Manpower and Immigration v. Tsiafakis, [1977] 2 F.C.
216; 73 D.L.R. (3d) 139 (F.C.A.); Jiminez-Perez v.
Minister of Employment and Immigration, Federal
Court, T-3232-80, judgment dated July 9, 1980; [1983] 1
F.C. 163 (C.A.).
REFERRED TO:
Re Regina and Jones (Nos. I and 2) et al. (1974), 2 O.R.
(2d) 741 (Ont. C.A.); Jakobs and Filimowski v. City of
Winnipeg, [1974] 2 W.W.R. 577 (Man. C.A.).
COUNSEL:
B. R. Evernden for appellant (respondent).
B. T. Pennell for respondent (appellant).
SOLICITORS:
Deputy Attorney General of Canada for
appellant (respondent).
Pennell, Underwood & Ion, Brantford, for
respondent (appellant).
The following are the reasons for judgment
rendered in English by
URIE J.: This is an appeal from an order of
mandamus issued by the Trial Division [[1982] 1
F.C. 103] directed to the appellant compelling him
or any duly designated immigration officer to con
sider and render a formal decision on the respond
ent's application to sponsor his putative daughter,
Joan Elene Whyte, for admission to Canada as a
permanent resident.
The relevant facts, none of which are in dispute,
follow. The appellant was, at all material times,
employed as a Manager of the Canadian Immigra
tion Centre at Hamilton, Ontario. The respondent,
a native of Jamaica, is now a naturalized Canadi-
an citizen who resides with his wife and an adopt
ed daughter, Sharon, at Brantford, Ontario. Joan
Elene Whyte is the daughter of the respondent and
was born of a common law union in Jamaica. She
was admitted to Canada as a visitor on August 15,
1980. After two extensions, her visitor's status
expired on November 10, 1980. On October 10,
1980 the respondent submitted a completed
"Sponsorship of Application by a Member of
Family Class" form for Joan Elene Whyte to the
immigration officials in Hamilton.
The appellant, on October 16, 1980, advised the
respondent by letter that the sponsorship applica
tion could not be considered because Joan Elene
Whyte did not fall within the definition of a family
class member in the Immigration Act, 1976, S.C.
1976-77, c. 52. By that, presumably, it was meant
that she did not fall within the definition of
"daughter" as set out in subsection 2(1) of the
Immigration Regulations, 1978, SOR/78-172, the
relevant portion of which reads as follows:
2. (1) ...
"daughter", with respect to any person, means a female who is
(a) the issue of a marriage of that person and who would
possess the status of legitimacy if her father had been
' domiciled in a province of Canada at the time of her birth,
By letter dated October 20, 1980, counsel for
the respondent, replying to the October 16 letter,
stated that his client did not agree that Joan Elene
Whyte was not a member of the family class and
asked that his letter be treated as a notice of
appeal. The appellant responded to this letter by
referring to the definition of "daughter" supra,
and pointed out that the respondent had not been
married to Joan Whyte's mother so that a family
class relationship did not exist. Since section 79 of
the Act permits appeals from the refusal of spon
sorship applications only by persons who have
sponsored members of a family class, Mr. Whyte
had no right of appeal.
The respondent then filed an originating notice
seeking an order in the nature of mandamus which
resulted in the order which is the subject of this
appeal.
It should be noted, before proceeding further,
that at no time has an application for permanent
residence ever been made by or on behalf of Joan
Elene Whyte in Jamaica, in Canada, or in any
other country. Neither has an Order in Council
issued pursuant to subsection 115(2) of the Act,
exempting her from the requirement of subsection
9(1) of obtaining a visa before appearing at a port
of entry because her admission should be facilitat
ed or for compassionate or humanitarian consider
ations.
Counsel for the appellant's first attack on the
impugned order was that mandamus may issue
only to compel public authorities to perform their
duties when, inter alia, the applicant for such an
order establishes that a duty is owed to him, and
establishes that, at the time the relief is sought, the
public authorities had a present obligation to per
form that duty. In support of this attack, counsel
relied on the decision of the Ontario Court of
Appeal in Karavos v. The City of Toronto et al.'
where, at page 18, Laidlaw J.A. had this to say:
It is well to refer at the outset to certain fundamental and
well-understood rules and principles relating to the remedy by
mandamus. It is properly called and recognized as an extraor
dinary one, and it is not granted by the Court if an applicant
for it has any other adequate remedy. The object and purpose
of it is to supply the want of other legal remedies. It is
appropriate to overcome the inaction or misconduct of persons
charged with the performance of duties of a public nature. The
complaining party must, however, clearly establish the right
which it is sought to protect, and an order is never granted in
doubtful cases: High's Extraordinary Legal Remedies, 3rd ed.
1896, p. 12, art. 9. I do not attempt an exhaustive summary of
the principles upon which the Court proceeds on an application
for mandamus, but I shall briefly state certain of them bearing
particularly on the case presently under consideration. Before
the remedy can be given, the applicant for it must show: (1) "a
clear, legal right to have the thing sought by it done, and done
in the manner and by the person sought to be coerced": High,
op. cit., p. 13, art. 9; cf. p. 15, art. 10. (2) "The duty whose
performance it is sought to coerce by mandamus must be
actually due and incumbent upon the officer at the time of
seeking the relief, and the writ will not lie to compel the doing
of an act which he is not yet under obligation to perform":
ibid., p. 44, art. 36. (3) That duty must be purely ministerial in
nature, "plainly incumbent upon an officer by operation of law
or by virtue of his office, and concerning which he possesses no
discretionary powers": ibid., p. 92, art. 80. (4) There must be a
demand and refusal to perform the act which it is sought to
coerce by legal remedy: ibid., p. 18, art. 13.
' [1948] O.W.N. 17 (C.A.).
This passage was referred to with approval in Re
Regina and Jones (Nos. 1 and 2) et al.' and by the
Manitoba Court of Appeal in Jakobs and Fili-
mowski v. City of Winnipeg 3 and can fairly be said
to set forth the principles to be applied when an
order in the nature of mandamus is sought. Based
on these principles it was the appellant's conten
tion that until an application for landing is made
there is no obligation on any immigration officer
to render a decision on an application to sponsor a
member of a family class. Counsel relied on sub
sections 9(1) and 79(1) of the Act and subsection
41(1) of the Regulations to provide the foundation
for this contention. They read as follows:
9. (1) Except in such cases as are prescribed, every immi
grant and visitor shall make an application for and obtain a visa
before he appears at a port of entry.
79. (1) Where a person has sponsored an application for
landing made by a member of the family class, an immigration
officer or visa officer, as the case may be, may refuse to
approve the application on the grounds that
(a) the person who sponsored the application does not meet
the requirements of the regulations respecting persons who
sponsor applications for landing, or
(b) the member of the family class does not meet the
requirements of this Act or the regulations,
and the person who sponsored the application shall be informed
of the reasons for the refusal.
41. (1) Where an immigration officer refuses to approve an
application for landing that has been made by a member of the
family class and has been sponsored, the immigration officer
shall,
(a) where the refusal to approve the application is made on
the grounds referred to in paragraph 79(1)(a) of the Act,
provide to the sponsor, or
(b) where the refusal to approve the application is made on
the grounds referred to in paragraph 79(1)(b) of the Act,
provide to the member of the family class
a summary of the information on which his reason for refusal is
based.
Clearly an applicant for landing must obtain a
visa before presenting himself for landing at a port
of entry unless he is exempted therefrom, a condi
tion which does not apply to Joan Elene Whyte.
Equally clearly subsection 79(1) of the Act, unlike
the Immigration Act, R.S.C. 1952, c. 325, where a
2 (1974), 2 O.R. (2d) 741 (Ont. C.A.).
3 [1974] 2 W.W.R. 577 at p. 585.
person might sponsor an individual, requires the
sponsorship to be of "an application for landing".
Subsection 41(1) of the Regulations supports this
interpretation. In other words, until an application
for landing has been made, there cannot be a
sponsorship application. Therefore, where there
has been no application for landing, immigration
officials cannot be called upon to make a decision
on a sponsorship application because the underly
ing requirement of a landing application is not
extant. Thus, no duty lies upon an immigration
official to make a decision and an order in the
nature of mandamus "will not lie to compel the
doing of an act which he is not yet under obliga
tion to perform". 4
During the course of argument counsel for the
respondent relied on the decision in the Trial
Division of this Court in Lawrence et al. v. Minis
ter of Employment and Immigration et al. 5 In
that case Lawrence, a citizen of the United States
who had escaped lawful custody in that country,
was convicted of committing four criminal
offences in Canada, following which he married a
Canadian citizen. While Lawrence was serving his
sentence an inquiry was convened as a result of
which a departure notice was issued which
required him to leave Canada by a given date.
Prior to that date he applied in Canada to be
granted landing and Mrs. Lawrence applied to
sponsor her husband's application. The Minister,
or his officials, took the position that neither
application could be considered until Mr. Law-
rence made his application for landing at a visa
office abroad. Lawrence then applied, inter alia,
for a writ of mandamus directing the Minister to
accept and consider the application for landing, to
notify Lawrence whether the application was
accepted or rejected and to notify Mrs. Lawrence
whether her sponsorship application was accepted
or rejected. The learned Trial Judge made the
following findings [at page 788]:
4 Karavos v. The City of Toronto et al. (supra), p. 18.
5 [1980] 1 F.C. 779 (T.D.).
From this letter and affidavit it is clear that the Department
has in its possession an application by Mr. Lawrence for
permanent residence in Canada, which it refuses to process
until he applies for a visa at a visa office abroad. In my view it
is proper procedure for the Department to take this stand
initially, but it cannot properly decline indefinitely to take any
action in respect of the application. If the Department learns
definitely that the applicant does not intend to go to a visa
office abroad or if a reasonable time has elapsed without the
applicant's having advised the Department to which visa office
he wishes his application to be sent, the proper course is for the
Department to refuse the application on the ground that the
applicant has not a visa as required by section 9(1) of the
Immigration Act, 1976. There are other grounds in the evi
dence taken before the Adjudicator on which, if the Depart
ment so wishes, it could refuse the application. In this case I
think it is clear that Mr. Lawrence has no intention of going to
the United States to apply at a Canadian visa office for a visa.
In my opinion Mrs. Lawrence is entitled to have her applica
tion to sponsor her husband's application dealt with. Once the
application of Mr. Lawrence is refused, which on the law would
be the likely decision, her sponsoring application may be
refused, on the ground that, under section 79(1)(b) he does not
meet the requirements of the Act or the Regulations. One of
the requirements of the Act is the condition that he must apply
for and obtain a visa at a visa office outside Canada.
While I have considerable doubt that everything
which was said in the above passage can be sup
ported in law, it is unnecessary, on the facts of this
case, to rule that the Lawrence case was incorrect
ly decided. The essential difference between the
two cases is, of course, that Joan Elene Whyte has
at no time applied for landing either from within
or from outside of Canada. The immigration offi
cials have not, therefore, been called upon to make
a decision on that application. There is, thus, no
foundation for the respondent's application for
sponsorship and neither the appellant nor any
other departmental officials owed a duty to the
respondent to render a decision on the sponsorship
application. In other words, neither the appellant
nor any other immigration officer was required to
render a decision in respect of the respondent's
undertaking to sponsor the application of Joan
Elene Whyte.
Reference was also made during the course of
argument to the decision of this Court in Minister
of Manpower and Immigration v. Tsiafakis 6 and
of the Trial Division in Jiminez-Perez v. Minister
of Employment and Immigration' which was
recently affirmed subject to a variation of the
order by this Court. 8 Neither decision is, in my
view, helpful in this case since they are readily
distinguishable on their facts. In the Tsiafakis
case, which was decided under the old Immigra
tion Act, the immigration officials had refused to
provide the proposed sponsor with a form of
application for sponsorship. The Court directed
that she was entitled to be provided with the form.
Here, of course, the sponsor has not been faced
with such a refusal. The sponsorship application
simply could not be dealt with because the applica
tion for landing which it purported to sponsor did
not exist. The reason given for refusing to deal
with it, in such circumstances, is immaterial
because, regardless of the reason given, no duty to
deal with it could arise until the landing applica
tion had been made.
In the Jiminez-Perez case the issue was whether
the immigration officials have a duty to permit an
application for landing from within Canada when
the applicant requests that he be exempted from
the requirement that application be made from
outside Canada, on humanitarian or compassion
ate grounds. The issue, it can be seen, is quite
different than that in this case being one resolved
on the same reasoning as that followed in the
Tsiafakis case.
Accordingly, for all of the above reasons, I
would allow the appeal, set aside the judgment of
the Trial Division and dismiss the respondent's
application for an order in the nature of man-
damus. There should be no costs either in this
Court or below.
HEALD J.: I agree.
KELLY D.J.: I agree.
6 [1977] 2 F.C. 216; 73 D.L.R. (3d) 139 (F.C.A.).
' T-3232-80 (unreported judgment dated July 9, 1980).
8 [1983] 1 F.C. 163 (C.A.).
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.