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T-1385-76
In re Supinder Singh Manhas and in re Immigra tion Act
Trial Division, Smith D.J.—Edmonton, May 19 and July 9, 1976.
Immigration—Prohibition and certiorari—Petitioner enter ing as non-immigrant and marrying citizen—Granted Minis terial Permit pending wife's attaining age of 18, when she could sponsor him—Wife applying to sponsor him, then obtaining divorce, and withdrawing sponsorship—Petitioner consulting immigration officer—Officer making section 22 report without advising petitioner of results of investigation— Petitioner directed to report for hearing—Objecting that Spe cial Inquiry Officer lacked jurisdiction to hold it—Immigra- tion Act, R.S.C. 1970, c. I-2, ss. 7(3), 8(9), 22, 23, and Regulations, s. 31(1)(a).
Petitioner, who entered Canada as a non-immigrant, married a 17 year old Canadian, and was granted a Ministerial Permit permitting him to remain in Canada pending his wife's attain ing the age of 18, at which time she could sponsor him for admission. The wife applied to sponsor petitioner but subse quently obtained a divorce and then withdrew the application. His permit expiring, petitioner consulted an immigration officer who made a section 22 report, although the results of his investigation were not made known to petitioner. Petitioner was then directed to report for a hearing; he did so, but objected that the Special Inquiry Officer lacked jurisdiction. He then applied for prohibition against further proceeding with the hearing, and certiorari to quash the report.
Held, the application is dismissed. When a Ministerial Permit has expired, the holder ceases to have any legal right to remain in Canada. He ceases to be a non-immigrant or to be in the particular class in which he was admitted as a non-immi grant, and thus comes within the provisions of section 7(3) of the Act, requiring him, if he remains in Canada, to report to the nearest immigration officer for examination forthwith, and deeming him to be a person seeking admission. While the officer may be subject to criticism, if, as alleged, he made a section 22 report without advising petitioner of the results of his investigation, such failure does not deprive him of jurisdiction to make the report. Nor was the order to report for a hearing outside the jurisdiction of the officer concerned. Section 23(2) provides that where a Special Inquiry Officer receives a section 22 report concerning a person (with certain exceptions) he shall admit him, or let him come into Canada, or cause him to be detained for an immediate inquiry. The Special Inquiry Officer thus is statutorily empowered to order an inquiry, and section 23(2) applies to petitioner (who came from India). This is not a proper case for prohibition or certiorari, and petitioner will not be prejudiced if the hearing proceeds.
APPLICATION.
COUNSEL:
J. A. Sutherland for petitioner. R. N. Dunne for respondents.
SOLICITORS:
J. A. Sutherland, Calgary, for petitioner. Deputy Attorney General of Canada for respondents.
The following are the reasons for judgment rendered in English by
SMITH D.J.: This is an Application on behalf of the petitioner for a writ of prohibition directed to C. J. Williams, Special Inquiry Officer, of the Canada Immigration Centre, of the City of Cal- gary, in the Province of Alberta, prohibiting the said C. J. Williams, Special Inquiry Officer, from proceeding further with an immigration inquiry before the said C. J. Williams sitting at the Canada Immigration Centre, Calgary, Alberta, and for a further order of this Honourable Court, directed to the said C. J. Williams, Special Inquiry Officer, of the Canada Immigration Centre, Cal- gary, Alberta to show cause why a writ of certio- rari should not issue to remove into this Honour able Court, and to quash a report made under section 22 of the Immigration Act, R.S.C. 1970, c. I-2 and amendments thereto made by D. R. Schow, an Immigration Officer of the Canada Immigration Centre, Calgary, Alberta, dated March 26th, 1976, directed to the said C. J. Williams, Special Inquiry Officer, and for a fur ther writ of certiorari to quash the said report under section 22 of the Immigration Act as herein- before described made by the said Immigration Officer, D. R. Schow, of the Canada Immigration Centre, Calgary, Alberta on March 26th, 1976.
The notice of motion sets out thirteen specific grounds for the application of which the following summary contains those that appear to be the most important.
The petitioner is a sponsored dependant within the meaning of the Immigration Regulations, being sponsored by his wife, Jasveer Kaur Victoria Manhas (Parhar) a resident Canadian citizen, for admission to Canada for permanent residence.
As such he is exempt from the provisions of section 28(1) and (2) of the Regulations.
The petitioner is the holder of an expired Minis terial Permit and therefore, pursuant to section 8(4) of the Immigration Act, neither the Immigra tion Officer (Schow) nor the Special Inquiry Offi cer (Williams) has jurisdiction to rule on the question whether the petitioner has the right or is entitled to remain in Canada. Under said section 8(4) only the Minister of Manpower and Immigra tion, or if authorized by the Minister, the Deputy Minister or the Director of the Immigration Branch of the Department, has jurisdiction to make a deportation order respecting a person whose permit has been cancelled or has expired.
The petitioner is a person entitled to admission to Canada. He is not a person subject to be reported under section 22 of the Immigration Act and the Immigration Officer had no legal jurisdic tion to make the report which he made under that section on March 26th, 1976.
The Special Inquiry Officer lacked any legal or any jurisdiction to convene or hold a special immi gration inquiry under the Immigration Act, respecting the petitioner.
The facts, as contained in the petitioner's affida vit and not denied by the respondents, may be stated as follows:
The petitioner entered Canada on a valid non- immigrant visa on August 12th, 1974. On Decem- ber 8th, 1974, at Nanaimo in British Columbia, he married Jasveer Kaur Victoria Parhar, who was born at Duncan in British Columbia and at the date of the marriage was seventeen years old.
Pending his wife attaining the age of eighteen years, at which age she would be eligible to spon sor him for admission to Canada for permanent residence, the petitioner was granted a Ministerial Permit to remain in Canada, under section 8 of the Immigration Act, on December 24th, 1974, which permit was extended on July 25th, 1975. This permit had expired (paragraph D of the petition er's affidavit). The date of expiry was not stated to the Court, but was probably prior to February 3rd, 1976.
After attaining the age of eighteen years, the petitioner's wife applied, pursuant to section
31(1)(a) of the Immigration Regulations to spon sor him as a sponsored dependant for landed immi grant status. There is no evidence before the Court of any final disposition of her application.
The petitioner's affidavit, dated April 9th, 1976, stated that his wife was expecting a child that month.
Unhappy differences having arisen between the petitioner and his wife, she had taken divorce proceedings against him. Prior to the date of the affidavit she had obtained a Decree Nisi of divorce, but the petitioner had retained a solicitor in Vancouver to appeal the Decree Nisi, as he was seeking reconciliation with his wife.
On February 3rd, 1976, the petitioner, in the presence of his solicitor, John A. Sutherland, con sulted an Immigration Officer, D. R. Schow, at the City of Calgary, in Alberta, and was advised by him that he would seek further information from Ottawa on the petitioner's status and would advise prior to any action being taken.
On March 29th, 1976, the said D. R. Schow made a report under section 22 of the Immigration Act and Regulations, respecting the petitioner, without advising the petitioner or his solicitor of the results of his investigation.
By letter bearing the same date, March 29th, 1976, but not received until April 7th, 1976, C. J. Williams, a Special Inquiry Officer at the Canada Immigration Centre in Calgary, directed the peti tioner to report for an immigration hearing at the said Immigration Centre on April 8th, 1976. The petitioner attended as directed and objected to the hearing on the ground that the Special Inquiry Officer had no jurisdiction to hold the inquiry. This application was launched the next day.
One further fact needs to be stated. At a date prior to these proceedings, the petitioner's wife wrote to the Department of Manpower and Immi gration withdrawing her sponsorship of the peti tioner for admission to Canada.
The first question to be considered is whether the petitioner is a sponsored dependant for admis-
sion to Canada for permanent residence. The evi dence before the Court indicates only that the petitioner's wife applied to sponsor him. No dispo sition of her application is disclosed. If it had been dealt with favourably it is most unlikely that Mr. Schow, after stating on February 3rd, 1976, that he would seek further information from Ottawa on the petitioner's status, would, on March 29th, 1976, make a report concerning him pursuant to section 22 of the Immigration Act and Regula tions. My opinion that no favourable decision was ever made concerning sponsorship by the petition er's wife is strengthened by the evidence about divorce proceedings. Counsel for the petitioner submitted, without advancing reasons for his opin ion, that the petitioner's wife could not withdraw her sponsorship. It is not necessary to examine the validity of this submission, since in any event the facts that she had begun divorce proceedings against the petitioner and had obtained a Decree Nisi in those proceedings would bear heavily against a favourable decision. The true situation cannot be ascertained with certainty on the evi dence tendered on this motion, but would be ascer tainable at an inquiry before a Special Inquiry Officer.
I am unable to agree with counsel's submission that as the petitioner is the holder of an expired Ministerial Permit to be in Canada only the Minis ter (or the Deputy Minister or Director if author ized by the Minister) has the power to make a deportation order against him. Section 8 of the Immigration Act sets out the powers of the Minis ter to issue a permit (for a specified period not exceeding twelve months) to extend or cancel it, and on its cancellation to make a deportation order respecting the person concerned. Each of these powers may be exercised by the Minister without invoking formal procedures by way of a report by an immigration officer and an inquiry by a Special Inquiry Officer. On the other hand these powers given to the Minister do not preclude such formal procedures where the circumstances warrant them. Counsel for the Crown stated that in practice these formal procedures are always followed, because their rules provide assurance that the case for the person desiring to enter or remain in Canada will be fairly and fully presented.
When a Ministerial Permit to be in Canada has expired the holder ceases to have any legal right to remain in Canada. He ceases to be a non-immi grant or to be in the particular class in which he was admitted as a non-immigrant. He thus comes within the provisions of section 7(3) of the Immi gration Act, which require him, if he remains in Canada to, "forthwith report such facts to the nearest immigration officer and present himself for examination at such place and time as he may be directed", and which provide further that he shall, for the purposes of the examination and all other purposes under the Act, be deemed to be a person seeking admission to Canada.
On February 3rd, 1976, after his Ministerial Permit had expired, the petitioner's affidavit dis closes that he went to see D. R. Schow, an Immi gration Officer, in Calgary. He obviously was concerned about his status in Canada, because his affidavit states that Mr. Schow advised him that he would seek further information on his status from Ottawa, and advise prior to any action being taken.
If the petitioner's affidavit is correct in stating that Mr. Schow made a report under section 22, concerning the petitioner, without having advised the petitioner or his solicitor of the result of his investigation, he may be subject to criticism on that score, but such failure to advise does not mean that he was deprived of jurisdiction to report under section 22.
After considering the facts, in so far as they have been disclosed on this motion, and reviewing the relevant provisions of the Immigration Act and considering a number of cases cited to me by both counsel, I find no reason for holding that the Immigration Officer, D. R. Schow acted outside the scope of his jurisdiction.
With respect to the action of the Special Inquiry Officer, C. J. Williams, in ordering the petitioner to report for an immigration hearing in Calgary, I find that he also was acting within the scope of his jurisdiction. Section 23(2) of the Immigration Act provides that where a Special Inquiry Officer receives a report under section 22 concerning a person (other than one who seeks to come to Canada from the United States or St. Pierre and
Miquelon) he shall admit him or let him come into Canada or may cause such person to be detained for an immediate inquiry under the Act. The Special Inquiry Officer thus has statutory author ity to order an inquiry. Subsection (2) of section 23 applies to the petitioner, who came to Canada from India.
This is not a proper case for an order of prohibi tion and certiorari. In my view the inquiry before a Special Inquiry Officer should proceed. The peti tioner will not be prejudiced, as all the facts relevant to his desire to be admitted to Canada for permanent residence will be before the Special Inquiry Officer.
The application is dismissed.
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