Gabriel Edwardo Vargas-Cataldo (Appellant)
v.
Minister of Manpower and Immigration
(Respondent)
Court of Appeal, Jackett C.J., Pratte J. and
Bastin D.J.—Ottawa, March 26, 1973.
Immigration—Deportation order against tourist—Second
deportation order made on tourist's return to Canada—First
order not reviewable on second hearing—Immigration
Appeal Board Act, R.S.C. 1970; c. I-3, s. 22.
A deportation order was made by a Special Inquiry Offi
cer against a tourist in Canada on August 30, 1972, and he
was deported to St. Pierre and Miquelon. Two or three days
later he returned to Canada, and on September 27th a
second deportation order was made against him by another
Special Inquiry Officer on the ground of the earlier deporta
tion order. An appeal was dismissed by the Immigration
Appeal Board.
Held, in view of the provisions of section 22 of the
Immigration Appeal Board Act, a Special Inquiry Officer
has no jurisdiction to hear and determine any question of
fact or law that may arise in relation to the making of a
deportation order by another Special Inquiry Officer, and
hence the Immigration Appeal Board has no power to deal
with any such question on an appeal from the second
deportation order.
Pringle v. Fraser [1972] S.C.R. 821, applied.
APPEAL from Immigration Appeal Board.
COUNSEL:
J. Giffin for appellant.
Paul Betournay and John E. Smith for
respondent.
SOLICITORS:
J. Giffin, Halifax, for appellant.
Deputy Attorney General of Canada for
respondent.
The judgment of the Court was delivered by
JACKETT C.J. (orally)—This is an appeal
under section 23 of the Immigration Appeal
Board Act from a decision of the Immigration
Appeal Board dismissing an appeal from a
deportation order made against the appellant by
a Special Inquiry Officer on September 27,
1972, and a section 28 application for an order
setting aside the same decision of the Immigra
tion Appeal Board.
The appellant, who comes from Chili, was
admitted to Canada as a tourist on October 29,
1970, and he stayed in Canada for almost two
years, during which time he lived in Montreal.
On June 8, 1972, he went on a trip during the
course of which he visited the French posses
sion of St. Pierre et Miquelon, where he got into
trouble that resulted in his not returning to
Canada for almost three months.
On the appellant's returning to Canada by a
ship, which arrived at Sydney, Nova Scotia, on
August 30, 1972, a deportation order was made
against him on the ground that he possessed
neither a valid passport nor an immigrant visa as
required by the Regulations and, in other
respects, did not comply with those Regulations.
He was thereupon returned to St. Pierre et
Miquelon on the same ship.
Two or three days after being returned to St.
Pierre et Miquelon, the appellant went by ferry
to Fortune in Newfoundland where there was
"no interrogation of any kind". He was, how
ever, arrested at Grand Bank by, or at the
request of, Immigration Officers and, in due
course, after an "inquiry" by a Special Inquiry
Officer, the deportation order now in question
was made against him on September 27, 1972,
on the ground that, as a deportation order had
previously been made against him, he could not
be allowed to remain in Canada without the
consent of the respondent, having regard to
section 35 of the Immigration Act, R.S. 1970, c.
I-2, which reads as follows:
35. Unless an appeal against such order is allowed, a
person against whom a deportation order has been made and
who is deported or leaves Canada shall not thereafter be
admitted to Canada or allowed to remain in Canada without
the consent of the Minister.
The major attack on the deportation order of
September 27, 1972, the only one under attack
in these proceedings, is that the Special Inquiry
Officer refused to consider attacks made by the
appellant on the deportation order of August 30,
1972, on the basis of which he should have
found that the first deportation order was a
nullity and that there was, therefore, no basis
for the second deportation order.'
There was before the Special Inquiry Officer
who made the deportation order of September
27, 1972, a document that purported to be a
deportation order "over the name in writing" of
a Special Inquiry Officer and that document
was therefore "evidence" of what was con
tained therein, by virtue of section 60(1) of the
Immigration Act, 2 "without proof of the signa
ture or official character of the person appear
ing to have signed the same". Indeed, it has not
been questioned that a person who was a Spe
cial Inquiry Officer performed the act of issuing
a deportation order against the appellant on
August 30, 1972. Once it is established that a
Special Inquiry Officer did, in fact, make such
an order, in our view, the only way in which its
validity may be attacked is by an appeal to the
Immigration Appeal Board. It has been estab
lished that the statutory provisions that provide
for such an appeal had the effect of abolishing
the remedy of certiorari which would, other
wise, be available. See Pringle et al. v. Fraser
[1972] S.C.R. 821. If the effect of the statutory
provisions providing for an appeal from a
deportation order to the Immigration Appeal
Board is to prevent the validity of a deportation
order being determined on an application for a
Writ of Certiorari, the traditional remedy, we
should have thought that it follows that the
validity of a deportation order that has been
made by one Special Inquiry Officer cannot be
determined by another Special Inquiry Officer.
In particular, it would seem that the words of
section 22 of the Immigration Appeal Board
Act, R.S. 1970, c. I-3 which provide that
... the Board has sole and exclusive jurisdiction to hear and
determine all questions of fact or law, including questions of
jurisdiction, that may arise in relation to the making of an
order of deportation .. .
have the effect of excluding any exercise of
jurisdiction by a Special Inquiry Officer to hear
or determine any question of fact or law that
may arise in relation to the making of an order
of deportation by some other Special Inquiry
Officer.
If the second Special Inquiry Officer had no
power to determine any such question in rela-
tion to the making of the first deportation order,
it follows that the Immigration Appeal Board
has no power to deal with any such question on
an appeal from the second deportation order.
Having said that, it is not necessary to say
anything more concerning the attacks made on
the deportation order of August 30, 1972. We
think it expedient, however, to suggest, without
expressing any concluded opinion, that all those
attacks have been based on the assumption that
a deportation order made under section 23(1) of
the Immigration Act is made after an inquiry to
which the Inquiry Regulations, and other rules
applicable to judicial or quasi-judicial hearings,
would apply. Instead of that being the case, as it
would seem to us, it may well be that all that
section 23(1), which applies only to persons
seeking to come into Canada from the United
States or St. Pierre et Miquelon, requires of a
Special Inquiry Officer, as a condition prece
dent to making a deportation order, is "such
further examination as he may deem neces
sary", which requirement is to be contrasted
with the requirement of an "inquiry" such as is
required, as a condition precedent to a deporta
tion order, where people seek to come into
Canada from other parts of the world (section
23(2)) or where people are arrested under the
Immigration Act in Canada (section 24). One
obvious explanation of this difference may be
the fact that a person may be returned to the
United States or St. Pierre et Miquelon with less
difficulty or possibility of hardship than a
person may be returned to other parts of the
world.
The only other attack made by the appellant
on the second deportation order is that con
tained in paragraph 4 on page 5 of his memoran
dum, which reads as follows:
4. The Board erred in law in failing to find that, where a
Special Inquiry Officer proceeds under section 24 of the
Immigration Act and commences - a Special Inquiry, he
cannot subsequently proceed under Section 25 of the Immi
gration Act;
We see no incompatibility between a direction
under section 24 by a Special Inquiry Officer to
cause an inquiry to be held concerning a person
arrested under the Act on suspicion of being in
Canada contrary to the Act and a direction by
the Minister or Director, upon receiving a report
under section 18 of the same suspicion, to cause
an inquiry to be held, providing the details of
the two directions are not inconsistent. There is
no suggestion here of any such inconsistency
and we therefore reject this attack on the validi
ty of the second deportation order.
On the argument of this matter, attention was
focussed on the impossibility, as a practical
matter, of any appeal being instituted by the
appellant from the first deportation order to the
Immigration Appeal Board, having regard to
section 4(2) of the Immigration Appeal Board
Regulations, which require that such an appeal
be brought within 24 hours or such longer
period not exceeding five days as the Chairman
of the Board may allow. In this connection, it is
to be noted that, in Pringle v. Fraser, (supra),
Laskin J., giving the judgment of the Supreme
Court of Canada, said at page 828:
Nor is it any answer to the force of s. 22 and its associated
provisions that under the Regulations promulgated by the
Board the right of appeal given by the Act must be exercised
by service of a prescribed notice within twenty-four hours
after service of the deportation order or within a longer
period, not exceeding five days, that the Board Chairman
may allow: see s. 4(1) and (2) of the Regulations.
As far as this case is concerned, the Court heard
argument on the various grounds for attacking
the first deportation order and came to the
conclusion that there was no basis for them.
There could, however, be cases in which a five-
day maximum period for appeal might give rise
to grave injustice, not only for persons who are
not Canadians but also for Canadians and it is
suggested that consideration might be given to
introducing more flexibility into the law.
We have concluded that the appeal, and the
section 28 application, should be dismissed.
"" This attack was put in two different ways during argu
ment but we have not been able to recognize more than one
point.
2 ' 60. (1) Every document purporting to be a deportation
order, rejection order, warrant, order, summons, direction,
notice or other document over the name in writing of the
Minister, Director, Special Inquiry Officer, immigration offi
cer or other person authorized under this Act to make such
document is, in any prosecution or other proceeding under
or arising out of this Act or the Immigration Appeal Board
Act, evidence of the facts contained therein, without proof
of the signature or the official character of the person
appearing to have signed the same, unless called in question
by the Minister or some other person acting for him or Her
Majesty.
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.