T-3848-80
Zaiboon Nesha (Applicant)
v.
Minister of Employment and Immigration and
Paul Tetreault, in his capacity as Adjudicator
under the Immigration Act, 1976 (Respondents)
Trial Division, Smith D.J.—Winnipeg, August 18,
1980 and February 7, 1981.
Prerogative writs — Prohibition — Applicant seeks a writ of
prohibition to stop a special inquiry initiated by way of a s.
27(2) report under the Immigration Act, 1976 pending Minis
ter's decision in respect of her request for a Ministerial permit
to remain in Canada — Request for adjournment of inquiry
was made prior to introduction of any evidence — Whether a
writ of prohibition should be granted — No writ of prohibition
is ordered, but no deportation order is to be issued pending
Minister's decision — Immigration Act, 1976, S.C. 1976-77, c.
52, ss. 27(2), 37(2), 123.
The applicant seeks a writ of prohibition to prevent the
continuation of a special inquiry initiated against her by way of
a section 27(2) report under the Immigration Act, 1976. After
her arrest, the applicant wrote to the Minister of Employment
and Immigration asking for a Ministerial permit to remain in
Canada. The next day a special inquiry was commenced. The
applicant sought to have it adjourned before any evidence was
taken, until the relief sought from the Minister could be
determined. The request for adjournment was refused. Section
37(2) provides that a Ministerial permit may not be issued to a
person against whom a removal order has been made or to
whom a departure notice has been issued. The question is
whether the Court should grant a writ of prohibition pending
the Minister's decision in respect of her request for a Ministeri
al permit.
Held, an order of deportation should not be issued pending
the result of the application to the Minister. The application to
the Minister was made timely. The fact that the power to grant
permits, in special cases, to remain in Canada exists by statute
means that it is expected to be used in cases in which the
Minister, or a person to whom he has validly delegated the
power, thinks it proper to do so. In order to decide whether or
not an application for leave to remain in Canada should be
granted, the Minister, or his delegate, must have knowledge of
the application and the evidence to support or refute it. It is
reasonable to infer that the power of the Minister should not be
destroyed by an adjudicator issuing a deportation order while
an application for special relief is pending.
Ramawad v. The Minister of Manpower and Immigration
[1978] 2 S.C.R. 375, applied. Laneau v. Rivard [1978] 2
F.C. 319, applied. Louhisdon v. Employment and Immi
gration Canada [1978] 2 F.C. 589, considered. Oloko v.
Canada Employment and Immigration [1978] 2 F.C. 593,
considered. Murray v. Minister of Employment and
Immigration [1979] 1 F.C. 518, considered. Nelson v.
Ormston (not reported, T-4924-78), considered.
APPLICATION for writ of prohibition.
COUNSEL:
Ken Zaifman for applicant.
Brian Hay for respondents.
SOLICITORS:
Kopstein & Company, Winnipeg, for appli
cant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for order ren
dered in English by
SMITH D.J.: In this application the applicant is
asking for a writ of prohibition enjoining Paul
Tetreault an Adjudicator from proceeding further
with the conduct of a special inquiry initiated
against the applicant by way of a subsection 27(2)
report under the Immigration Act, 1976, S.C.
1976-77, c. 52, and commenced on the 31st day of
July, 1980.
According to her affidavit and a letter, dated
July 29, 1980, from her to the Minister of Employ
ment and Immigration, the applicant was born in
Georgetown, Guyana on March 9, 1941 and is a
citizen of Guyana. She came to Canada in Novem-
ber, 1975 and has been in Canada ever since. She
seems to have had steady employment during all
the time down to July 25, 1980, first in Toronto as
housekeeper and babysitter till August 1976 and
since then in Winnipeg as housekeeper. There is
nothing on the file to indicate, how, or in what
capacity she was admitted to Canada, but her
letter to the Minister indicates that she is "an
illegal person" in Canada.
On July 25, 1980 she was arrested under the
Immigration Act, 1976. On July 28, 1980 she was
released on posting a cash bond of $750. The next
day she wrote the letter to the Minister, which was
forwarded to the Minister on July 30, 1980.
On July 31, 1980, a special inquiry by Mr.
Tetreault was commenced under subsection 27(2)
of the Immigration Act, 1976. At the outset she
submitted to Mr. Tetreault a copy of the letter to
the Minister and her counsel requested that the
special inquiry be adjourned before any evidence
was taken, until the relief sought from the Minis
ter could be determined. The request for an
adjournment was refused.
One additional circumstance is noted. The appli
cant's letter to the Minister does not specifically
ask for a Ministerial permit to remain in Canada.
It does, however, indicate that if she is sent back to
Guyana she will be facing death at the hands of
her former common law husband, who, she states,
has threatened to kill her. She pleads with the
Minister to save her life by helping her to remain
in Canada, stating that he is the only one who can
help her. The obvious and I think the only way in
which the Minister can assist her to remain in
Canada is to exercise his discretion under subsec
tion 37(1) of the Immigration Act, 1976 in her
favour, by issuing her a written permit to remain.
In my view her letter clearly means that she is
asking for a Ministerial permit to remain in
Canada.
Subsection 37(2) has significance in an applica
tion for a writ of prohibition in the circumstances
of this case. The relevant portion of it reads:
37....
(2) Notwithstanding subsection (1), a permit may not be
issued to
(a) a person against whom a removal order has been made
who has not been removed from Canada pursuant to such an
order or has not otherwise left Canada, unless an appeal
from that order has been allowed;
(b) a person to whom a departure notice has been issued who
has not left Canada; or
What the applicant fears is that, if the inquiry
which has been started by the Adjudicator is con
tinued and results in a removal or deportation
order being made against her or a departure notice
being given to her, the Minister's power to give her
a permit to remain in Canada will no longer exist,
and the humanitarian and compassionate grounds
which she is advancing to the Minister for issuing
it will never be considered. The legal question
before me is whether in these circumstances the
Court should grant her request for a temporary
writ of prohibition, pending the Minister's decision
in respect of her request for a Ministerial permit to
remain in Canada.
The present application was heard by me on
August 18, 1980, judgment being reserved for the
purpose of reviewing the jurisprudence. Two or
three days later, counsel for the applicant advised
me verbally that there was no longer any rush for
an early decision as certain other steps were being
taken. As, at that time, there were many other
matters awaiting my decision, I put this matter
aside, anticipating that I would hear further from
one or other or both counsel before very long. Not
having heard from counsel and having been
advised by an official of the Winnipeg office of the
Federal Court that nothing has been filed by either
party since the date of the hearing, I deem it
necessary now to reach a decision on this
application.
I should mention here that a new Immigration
Act was passed by Parliament, which came into
force on April 10, 1978. While many of the provi
sions of the former Act are similar to those in the
new Act, there are many changes in the new Act
and the section numbers are completely changed.
Several cases cited to me by counsel require
consideration. The first of these is Ramawad v.
The Minister of Manpower and Immigration, a
decision of the Supreme Court of Canada made on
November 23, 1977, and reported in [1978] 2
S.C.R. 375. In that case the appellant entered
Canada as a non-immigrant and was granted an
employment visa. Having been advised that he had
to leave the country because his visa had ceased to
be valid when he breached one of its conditions,
appellant applied for a new employment visa and
was considered to be seeking entry into Canada
under then subsection 7(3) of the Act. Appellant
was examined under then section 22 and reported
to a Special Inquiry Officer who held an inquiry
under then subsection 23(2). The Special Inquiry
Officer determined that appellant could not be
issued an employment visa because of paragraph
3D(2)(b) of the Regulations which prohibits the
issue of a visa to an applicant who "has violated
the conditions of any employment visa issued to
him within the preceding two years." Appellant
invoked paragraph 3G(d) of the Regulations
which permits the Minister to waive this prohibi
tion "because of the existence of special circum
stances." The Special Inquiry Officer ruled that no
special circumstances existed that could justify a
waiver of the prohibition and reached the decision
that the appellant could not be allowed to stay in
Canada. A deportation order was immediately
issued. The appellant applied under section 28 of
the Federal Court Act, R.S.C. 1970 (2nd Supp.),
c. 10, to have that order reviewed by the Federal
Court of Appeal and set aside. That application
was dismissed without reasons.
The Supreme Court unanimously allowed the
appeal from that decision of the Federal Court of
Appeal. The headnote gives the reason for allow
ing the appeal as follows:
The authority of the Minister under para. 3G(d) of the
Regulations to rule as to the existence of special circumstances
that would justify waiving the prohibition contained in para.
3D(2)(b) could not be exercised by the Special Inquiry Officer
pursuant to an implied delegation of authority from the Minis
ter. The decision of the Special Inquiry Officer that no such
special circumstances existed was therefore invalid. The inva
lidity of that decision vitiated the deportation order.
The deportation order was set aside.
The function of a Special Inquiry Officer to
conduct an inquiry like that in the Ramawad case
is now discharged by an official called an
Adjudicator.
The second case is Laneau v. Rivard, a decision
of Decary J. in the Trial Division of the Federal
Court, made on December 21, 1977 and reported
in [1978] 2 F.C. 319. In that case the appellant
applied to the Minister of Immigration for a
permit to be issued, allowing her to remain in
Canada, pursuant to the discretion conferred on
him by section 8 of the Immigration Act. (The
present section giving such discretion to the Minis
ter is section 37.) Decary J. stated, at page 320:
"It is important to note that this application was
made before the immigration authorities sum
moned or even communicated with applicant." In
the Ramawad case the application was made at
the close of the special inquiry, but before the
Special Inquiry Officer proceeded to deliver the
operative part of his decision and before the appel
lant was ordered to be detained and deported. The
Supreme Court held that the application was made
at an appropriate time. In our case the application
by letter was posted the day before the inquiry was
to begin, and the next day, prior to any evidence
being given, appellant's counsel requested an
adjournment of the inquiry pending the Minister's
decision. I conclude that the application to the
Minister in our case was made timely.
In the Laneau case the applicant was summoned
to a special inquiry before any answer to her
request to the Minister had been received. At the
very beginning of the inquiry the applicant's coun
sel challenged the jurisdiction of the Special Inqui
ry Officer (as was done in the present case) to hold
an inquiry before applicant had received an answer
from the Minister. The Special Inquiry Officer
(like the Adjudicator in our case) refused to post
pone the inquiry. The applicant then applied for a
writ of prohibition to prevent him from proceeding
with the inquiry.
Decary J. examined the powers of a Special
Inquiry Officer under the sections then in force,
viz.: sections 11 and 27, and also the power of the
Minister under section 8 (now 37) of the Immi
gration Act. He then said, at page 329, referring to
the Minister's powers:
In my opinion, these powers have priority over those given
the Special Inquiry Officer under sections 11 and 27 of the
same Act, where both are responsible for decisions in the same
case. The provisions of section 8(1) clearly state that the
Minister may issue a written permit authorizing any person in
Canada to remain therein, other than in two categories, and it
is apparent that neither of them applies to applicant.
(Neither of those categories applies to the
present applicant.)
And, at page 330 he said:
The power of the Minister to issue or refuse to issue a permit
is within his exclusive jurisdiction, and the powers which the
Minister may delegate to his representatives are strictly limited
to those authorized by Parliament. No provision of the Act or
Regulations authorizes the Minister either directly or indirectly
to delegate his powers under section 8 to a Special Inquiry
Officer.
Based on what I have just quoted, the learned
Judge went on to say:
Because no such legislative authorization has been given, legal
theory and the maxim "delegates non potest delegare" prohibit
respondent from taking any action which, for all practical
purposes, could later prevent the Minister from rendering a
decision favourable to applicant concerning her application
under section 8.
The reference to section 8 is to paragraph
(1) (b), which is to the same effect as paragraph
37(2)(b) of the new Act (quoted earlier in these
reasons).
Without differing with the view expressed by
Decary J. of the power of the Minister under the
former Act to delegate powers to a Special Inquiry
Officer, the position under the new Act is quite
different. Section 123 of the new Act provides:
123. The Minister or the Deputy Minister, as the case may
be, may authorize such persons employed in the public service
of Canada as he deems proper to exercise and perform any of
the powers, duties and functions that may or are required to be
exercised or performed by him under this Act or the regula
tions, other than the powers, duties and functions referred to in
paragraphs 19(1)(e) and 19(2)(a), subsections 39(1) and
40(1), paragraph 42(b) and subsection 83(1), and any such
duty, power or function performed or exercised by any person
so authorized shall be deemed to have been performed or
exercised by the Minister or Deputy Minister, as the case may
be.
This section gives the Minister a very wide
power of delegation: Section 37 is not among those
to which the prohibition on delegation applies.
Consequently there is nothing to prevent the Min
ister delegating to an Adjudicator his discretionary
power under section 37 to issue a written permit
authorizing any person to remain in Canada if that
person is one with respect to whom a report has
been or may be made under subsection 27(2). The
only question is: has the Minister made such a
delegation? I have seen no evidence of it. In the
absence of proof that he has done so should it be
inferred that he has? Bearing in mind the state
ment frequently made that the favourable exercise
of the Minister's power in this matter is intended
to be used only in exceptional cases, and that the
Minister has been given this power for the obvious
purpose of providing an escape from the applica
tion of a rigid legislative rule in cases where its
application would be totally unfair and would be
unreasonable in the particular circumstances, I
very much doubt that such an inference should be
made.
Decary J. allowed the application in the Laneau
case, making an order prohibiting the respondent
Special Inquiry Officer from continuing the inqui
ry regarding the applicant until the Minister had
exercised his discretion.
The next two cases were both decided on the
same day, March 13, 1978 and by the Federal
Court of Appeal, composed of the same judges.
The cases are Louhisdon v. Employment and
Immigration Canada [1978] 2 F.C. 589 and
Oloko v. Canada Employment and Immigration
[1978] 2 F.C. 593. In both cases requests were
made for adjournment of inquiries by Special
Inquiry Officers pending applications for Minis
terial permits. In both cases the requests were
refused and deportation orders were issued against
the applicants. The applicants applied to the Fed
eral Court of Appeal seeking cancellation of the
deportation orders. The Court dismissed the
appeals by the majority decisions of Pratte and
Ryan JJ., with Le Dain J. dissenting in both cases.
The reasons of the majority were the same in
both cases, as were those of the minority. The
reasons of Pratte J., for the majority, are stated in
the Louhisdon report. The only argument of the
applicant was that the Special Inquiry Officer had
made an error that caused him to lose jurisdiction
when he refused to grant the applicant's request
not to make a deportation order and refer the
matter to the Minister, for a decision as to whether
he would issue a permit authorizing applicant to
remain in Canada. In the opinion of counsel for
the applicant, the Special Inquiry Officer acted
illegally in making the deportation order, because
by so doing he deprived the applicant of the option
of obtaining a permit issued by the Minister.
Counsel relied on the decision of the Supreme
Court in the Ramawad case.
Pratte J. said at page 591:
In my view this argument is without merit. Section 8 of the
Immigration Act simply gives the Minister the power to grant a
permit; it does not create any right in favour of those who
might benefit from the exercise of this power. It is true that
making the deportation order had the effect of depriving appli
cant of the option of obtaining a permit from the Minister. This
does not, however, give applicant grounds for complaint. The
deportation order has this effect under the Act regardless of
when it is made. In my view, the decision of the Supreme Court
in Ramawad cannot help applicant. All that was decided in
that case, in my opinion, is that a person who is seeking an
employment visa under sections 3B et seq of the Immigration
Regulations, Part I, and who requests that his case be submit
ted to the Minister so that the latter may exercise the power
conferred on him by section 3G(d) of the Regulations, may not
be deported on the ground that he has no employment visa until
the matter has been put before the Minister.
I agree that what was actually decided in the
Ramawad case is as stated by Pratte J., but in my
view, by analogy, the reasoning in that case could
be applied to the facts of the Louhisdon case and
also to the case before me. A person whose legal
right to be in Canada depends on the possession of
a valid work permit, and that permit expires with
out being renewed, or is taken from him or
becomes invalid because of a breach of its condi
tions, has no longer a legal right to be in Canada,
and can be deported. The same is true of a person
who comes to Canada on a visitor's permit and
overstays the time for which it was given to him.
The same is true of a person who came into
Canada illegally. I have difficulty in seeing why, in
the first kind of case, an inquiry which may result
in an order of deportation may be stopped by the
Court, or if a deportation order has been made the
Court may cancel it, in both cases to await the
result of an application to the Minister for a
permit to remain in the country, but that in the
other kinds of cases, particularly the last of those
mentioned, the Court may not make similar
orders.
It is my opinion that the fact that the power to
grant permits, in special cases, to remain in
Canada exists by statute means that it is expected
to be used in cases in which the Minister, or a
person to whom he has validly delegated the
power, thinks it proper to do so. In order to decide
whether or not an application for leave to remain
in Canada should be granted, the Minister, or his
delegate, must have knowledge of the application
and the evidence to support or refute it. From
these facts it is, to my mind, reasonable to infer
that the power of the Minister should not be
destroyed by an adjudicator issuing a deportation
order while an application for special relief is
pending. Section 37 of the Act does not create any
right on the applicant to a permit to remain in
Canada, but surely it does mean that a person in
our applicant's position has a right to apply for
such a permit and to have it considered. How else
can the Minister's discretionary power be sought
and his consideration of the case come into play?
I understand the Department is concerned that
if this view is sustained, there may be a flood of
such applications, most of them frivolous or made
with no real hope of success and merely to gain
delay. From my experience during the last two or
three years I would say such concern is not without
foundation. This is a possibility which cannot be
ignored, but, assuming that it would occur, it
seems to me that proper administration would
result in frivolous or otherwise hopeless cases being
speedily disposed of, and, as the negative results in
such cases became known, their numbers would be
greatly reduced. It does not seem just, in any
event, that genuine cases, in which the known facts
indicate there is sufficient merit to warrant a
reasonable hope of success, should be frustrated in
advance by the issuing of a deportation order. It is
difficult for me to think that Parliament intended
such an outcome.
It is not my function to pass an opinion on the
present applicant's case. I will only say that if the
allegations in her letter to the Minister of July 29,
1980, should be shown to be correct, it is not
impossible to think her application might succeed.
Since the Louhisdon and Oloko cases the deci
sions of the courts have not been entirely uniform.
In Murray v. Minister of Employment and Immi
gration [1979] 1 F.C. 518 (decided on September
15, 1978), the Federal Court of Appeal followed
the Louhisdon reasoning and distinguished the
case before it from the Ramawad case.
In Nelson v. Ormston, heard on November 6,
1978 (Court No. T-4924-78) Walsh J. relied on
Louhisdon and Oloko and decided that there was
no justification for stopping the continuation of the
inquiry by writ of prohibition merely because an
application for a permit to remain in Canada had
been made to the Minister. On the facts of the
case he also stated that "it must appear evident
that this application for a section 37 permit has
little chance of succeeding and could quite proper
ly be categorized as frivolous and made to obtain
delay."
Following the hearing in the present case I was
advised by counsel for the respondents of a deci
sion which does not appear to have been reported
as yet. The office of the Department of Justice in
Ottawa had advised him that the office had no
Federal Court, Trial Division, file number for the
case, which was that of a Mrs. Sidhu. It was heard
by Collier J. in the Trial Division of the Federal
Court. The facts and decision, as related to counsel
were as follows:
Mrs. Sidhu was arrested without warrant and, semble, made
the subject of a section 27 Immigration Act, 1976 report and
direction. Her lawyer then applied to the Minister of Employ
ment and Immigration for a ministerial permit (section 37 of
the Act). He also applied for a writ of prohibition to prevent
the holding of the inquiry, which Collier, J. granted pending
decision on the application for a permit.
As indicated earlier in these reasons I have not
been advised of any developments in the present
case since the date of the hearing. Based on the
position as it was at the date of the hearing I have
come to the conclusion, for the reasons indicated
supra herein that an order of deportation should
not be issued against the applicant, pending the
result of her application to the Minister under
section 37 of the Immigration Act, 1976. If such
an order has been issued and no decision has yet
been received from the Minister, the order should
be cancelled. I am not ordering that the inquiry be
stopped pending the Minister's decision, but only
that no deportation order be issued pending such
decision.
The applicant is entitled to her costs of this
application.
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.