A-182-73
Babatunde Agiri (Applicant)
v.
Minister of Manpower and Immigration
(Respondent)
Court of Appeal, Jackett C.J., Thurlow and
Pratte JJ.—Toronto, January 30, March 11 and
12, 1974.
Judicial review—Immigration—Application to set aside
deportation—Failure to answer truthfully questions by immi
gration officer—Report by immigration officer to Special
Inquiry Officer—Deportation order by Special Inquiry Offic-
er—No error in law—Federal Court Act, s. 28 Immigration
Act, R.S.C. 1970, c. I-2, ss. 19(2), 22.
The deportation of the applicant was ordered by a Special
Inquiry Officer on the ground that the applicant had not
answered truthfully questions put to him by an immigration
officer. The applicant contended that a report to the Secial
Inquiry Officer should have been made by the immigr tion
officer under section 19(2) of the Immigration Act and that
the order was based on an error in law as to the eff ct of
that subsection.
Held, a report under section 19(2) was unnecessary as a
report was made under section 22 of the Act. In considering
the report, the Special Inquiry Officer was not askéd to
exercise his option not to make the deportation order; he
said nothing to indicate that he was ignorant of such an
option; and the untruthful answers were obviously designed
to mislead the immigration officer as to the applicant's real
object in his visit to Canada. There was no error in law in
the order and the application was dismissed.
APPLICATION.
COUNSEL:
Paul D. Copeland for applicant.
E. A. Bowie and L. S. Holland for
respondent.
SOLICITORS:
Copeland & King, Toronto, for applicant.
Deputy Attorney General of Canada for
respondent.
JACKETT C.J. (orally)—This section 28
application to set aside a deportation order
made against a person who is not a Canadian
citizen or a person with Canadian domicile was
originally based on grounds that were rejected
from the bench when the matter first came on
for hearing but, further possible grounds having
presented themselves at that time, the matter
was adjourned until yesterday so that the par
ties might prepare themselves to argue the ques
tions so raised.
The deportation order was based on a finding
of fact that the applicant failed to answer truth
fully all questions put to him by an immigration
officer at an examination as required by section
19(2) of the Immigration Act, which reads as
follows:
(2) Every person shall answer truthfully all questions put
to him by an immigration officer at an examination and his
failure to do so shall be reported by the immigration officer
to a Special Inquiry Officer and shall, in itself, be sufficient
ground for deportation where so ordered by the Special
Inquiry Officer.
In effect, the further grounds that were
argued yesterday arise from the fact that the
matter had been dealt with by the Special Inqui
ry Officer without specially referring to that
part of section 19(2) that comes after the words:
(2) Every person shall answer truthfully all questions put
to him by an immigration officer at an examination ... .
In the first place, counsel for the applicant
put forward a contention that the latter part of
section 19(2) required a special report from the
immigration officer, apart from the report that
was in fact made under section 22 of the Immi
gration Act, and that, no such separate report
having been made, a deportation order based on
a failure to comply with section 19(2) cannot be
sustained. I am of the view that that contention
should be rejected. In my opinion, the report
contemplated by section 19(2) can properly be
included in the section 22 report. I express no
opinion as to whether it can legally be made
otherwise.
The alternative view is that the deportation
order was based on an error of law as to the
effect of section 19(2).
It is common ground that there is a discretion
in a Special Inquiry Officer under section 19(2)
in the sense that he has an option to make or not
make a deportation order based on a breach of
section 19(2).
In my opinion, therefore, if a Special Inquiry
Officer
(a) refused to consider a request that he not
make a deportation order on the ground that
he had no such option under section 19(2), or
(b) indicated that he would have considered
not making a deportation order if, in his view,
he was legally entitled to decide not to make
it,
it would be clear that the deportation order was
based on an error of law and should be set
aside. I go further and say that, if the untruthful
reply was made with reference to such a trivial
or irrelevant matter that a Special Inquiry Offi
cer might have been expected to exercise his
option not to make a deportation order if he had
known that he had such an option, it should be
assumed that he made the deportation order
based on an error in law as to his powers.
In this case, the Special Inquiry Officer was
not asked to exercise his option not to make the
deportation order, he said nothing to indicate
that he did not know that he had such an option
and the untruthful answers were obviously
designed to mislead the immigration officer as
to the real object of the applicant's proposed
visit to Canada. Indeed, I find no basis for
holding that the deportation order was based on
an error of law.
I am of opinion that the section 28 application
should be dismissed.
* * *
THURLOW and PRATTE JJ. concurred.
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.