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A-724-85
Minister of Employment and Immigration (Appellant) (Respondent)
v.
Baldev S. Kahlon (Respondent) (Applicant)
INDEXED AS: KAIILON V. CANADA (MINISTER OF EMPLOY MENT AND IMMIGRATION) (F. C.A.)
Court of Appeal, Heald, Mahoney and Stone JJ.—Vancouver, May 30, 1986.
Judicial review — Prerogative writs — Mandamus — Appeal from Trial Judge's order of mandamus, requiring Minister to grant visitors' visas to respondent's relatives to permit them to testify before Immigration Appeal Board — Appeal allowed — Mandamus requiring performance of duty, not dictating result — By refusing visitors' visas visa officer disposing of application — No duty remaining to be enforced — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 18.
COUNSEL:
Mitchell Taylor for appellant (respondent). Guy B. Riecken for respondent (applicant).
SOLICITORS:
Deputy Attorney General of Canada for appellant (respondent).
John Taylor & Associates, Vancouver, for respondent (applicant).
The following are the reasons for judgment of the Court delivered orally in English by
MAHONEY J.: The respondent has sponsored the admission of his father, mother and sister as immi grants to Canada. A visa officer in India has determined that their application for admission to Canada must be refused. The respondent has appealed to the Immigration Appeal Board and has sought visitors' visas for his father, mother and sister to permit them to testify before the Board. A visa officer refused these visitors' visas on the ground that they were "not deemed to be bona fide visitors to Canada."
If the respondent had sought and obtained cer- tiorari quashing the refusal of visitors' visas and referring the matter back for reconsideration, on the basis that the fact that they wanted to come to Canada to testify before the Board was not a basis upon which the visa officer could lawfully con clude that they were not bona fide visitors, the outcome of this appeal might well be very different.
However, the respondent sought only man- damus [[1985] 2 F.C. 124 (T.D.)] and, in our respectful opinion, the learned Trial Judge erred in ordering the Minister to cause visitors' visas to be issued. The visa officer had disposed of the application for the visas and there remained no duty to be performed enforceable by mandamus. Mandamus will issue to require performance of duty; it cannot, however, dictate the result to be reached.
The appeal will be allowed with costs if request ed both here and in the Trial Division. The order of the Trial Division dated August 29, 1985, will be set aside.
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