T-5076-78
Brij S. Pratap (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
Trial Division, Smith D.J.—Winnipeg, November
9, 1978.
Prerogative writs — Prohibition — Immigration — Depor
tation — Deportation Order made by Special Inquiry Officer
under Immigration Act, R.S.C. 1970, c. 1-2 — Application to
reopen inquiry made after Immigration Act, 1976, S.C. 1976-
77, c. 52, enacted, and refused by Adjudicator for want of
jurisdiction to reopen — Application for mandamus made, but
motion not yet returnable — Current motion to prohibit
deportation until motion for mandamus disposed of —
Whether or not order of prohibition should be granted —
Immigration Act, 1976, S.C. 1976-77, c. 52, s. 35(1).
APPLICATION.
COUNSEL:
R. G. Carbert for applicant.
B. Meronek for respondent.
SOLICITORS:
Carbert & Company, Winnipeg, for appli
cant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
SMITH D.J.: This is a motion for an interim
order restraining and prohibiting the deportation
of the applicant pursuant to section 5 of the Immi
gration Act, R.S.C. 1970, c. I-2, until further
order of this Court.
It appears that an order of deportation was
made against the applicant on March 30, 1978, by
a Special Inquiry Officer, under the Immigration
Act in existence prior to April 10, 1978. On that
date the Immigration Act, 1976, S.C. 1976-77, c.
52, was proclaimed in force. By this Act the
special inquiry function provided for by the former
Act was replaced by an adjudication system, with
officials called Adjudicators.
On September 10, 1978, the applicant's solicitor
wrote the Department of Immigration, indicating
that his client wished to apply for the reopening of
the inquiry by a Special Inquiry Officer for the
hearing and receiving of additional evidence and
testimony.
By letter dated October 5, 1978, from Adjudica
tor, K. Flood, the solicitor was advised of above
mentioned change in the statute. He was also
advised that the Adjudicator's power to reopen
inquiries was only as provided by section 35 of the
new Act and section 39 of the Immigration Regu
lations, 1978, SOR/78-172. Mr. Flood's letter
stated that since the applicant had been dealt with
under the former Act he did not believe he had
jurisdiction to reopen it, being a matter dealt with
by a Special Inquiry Officer under that Act. Fur
ther correspondence ensued.
On November 8, 1978, the applicant filed an
originating notice of motion for an order of man-
damus requiring the Adjudicator to reopen the
applicant's inquiry. This motion is returnable
Tuesday, December 5, 1978. On the same day he
also filed notice of this motion, returnable today.
The purpose of this motion is to prohibit the
deportation of the applicant until the motion for
an order of mandamus has been disposed of.
At the opening of the hearing counsel for the
respondent stated that he was not objecting to
proceeding with the application on the ground of
shortness of notice.
On the present motion my function is simply to
determine whether the order of restraint and
prohibition should be granted to the applicant. I
am not concerned here to decide whether the
Adjudicator has jurisdiction to reopen the inquiry
which resulted in the order of deportation. This
matter would be for decision at the hearing on the
motion for mandamus. Nor am I concerned with
the likelihood or otherwise of the inquiry being
reopened or with the result of the reopening if that
occurs.
I am concerned with the fact that, if the
Adjudicator has jurisdiction to reopen the inquiry
he has not exercised it. Section 35 of the new Act
states that:
35. (1) ... an inquiry by an adjudicator may be reopened at
any time by that adjudicator or by any other adjudicator for
the hearing and receiving of any additional evidence or testimo
ny....
This is precisely what the applicant is seeking by
his motion for an order of mandamus, having been
unable to persuade the Adjudicator to do anything
in the matter. The wording of the section is per
missive, giving the Adjudicator discretionary
power to reopen inquiries. The section further
provides that the Adjudicator who hears and
receives such evidence or testimony (on a reopen
ing) may confirm, amend or reverse any decision
previously given by an Adjudicator.
The discretion given by the section is, in my
opinion, not arbitrary, but quasi-judicial, to be
exercised after consideration of the facts and the
applicable law. The applicant has a right to know
whether the jurisdiction to reopen which could be
exercised under the former Act by a Special Inqui
ry Officer, is now possessed by an Adjudicator,
even where the deportation order was made by a
Special Inquiry Officer under the former Act, now
repealed, and if the power is possessed by an
Adjudicator, he has a right to have his application
to reopen considered.
Counsel for the respondent argued forcefully
that granting the relief asked for on this motion
could not help the applicant except to delay his
deportation by a few weeks. He submitted that the
basis for the order of deportation is that the appli
cant has no immigrant visa permitting him to
remain in Canada, and that this lack could not be
cured by any humanitarian evidence. In his view
deportation is inevitable. Counsel for the applicant
did not agree, submitting that there were steps
open to his client which might succeed in securing
for him permanent residence in Canada. Be that as
it may, as may be inferred from what I said earlier
in these reasons, it is not my duty to make a
decision on the merits of the applicant's case
against deportation.
I have considered the cases cited by counsel,
particularly one cited by counsel for the applicant,
viz: In re Immigration Act and in re McDonald
[1977] 1 F.C. 704. In my view none of these cases
is decisive for this case.
In my view the application should be granted
and an order will be made to this effect.
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.