A-272-74
Rajihdar K. Malhotra (Applicant)
v.
Minister of Manpower and Immigration
(Respondent)
Court of Appeal, Thurlow J., Mackay and Sweet
D.JJ.—Toronto, October 2 and 3, 1974.
Judicial review—Deportation order—Decision of Special
Inquiry Officer not supported by evidence—Referral back on
basis that applicant not a member of a prohibited class—
Refusal of adequate security for release because of proposed
application for review— Observation of Court—Immigration
Act, R.S.C. 1970, c. I-2, ss. 5(p), 17, 27(2)(b)— Federal
Court Act, s. 28.
APPLICATION.
COUNSEL:
Paul D. Copeland for applicant.
E. A. Bowie for respondent.
SOLICITORS :
Copeland, King, Toronto, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment of
the Court delivered orally in English by
THURLOW J.: In the opinion of the Court the
opinion of the Special Inquiry Officer that the
applicant was not a bona fide non-immigrant is
not supported by the reasons given by him. His
finding that the applicant was a member of the
prohibited class of persons described in para
graph 5(p) of the Immigration Act is therefore
based on an error of law as to the grounds upon
which such an opinion can be formed. The
deportation order will be set aside and the
matter will be referred back to a Special Inquiry
Officer to be dealt with under subsection
27(2)(b) of the Immigration Act on the basis
that the applicant is not a member of a prohib
ited class.
The Court further observes that to decline to
release a person in the position of the applicant
upon adequate security being offered, simply
because the person concerned proposes to bring
an application for review of the Special Inquiry
Officer's decision is an arbitrary exercise of the
authority to detain the person concerned and
represents an abuse of the power vested by law
in him.
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.