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.
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.