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T-4748-76
Michael Chi Ming Au (Applicant)
v.
Attorney General of Canada (Respondent)
Trial Division, Maguire D.J.—Calgary, December 6, 1976; Regina, February 2, 1977.
Immigration — Application for writ prohibiting continuance
of special inquiry Earlier deportation order set aside on grounds that s. 22 report did not confer jurisdiction on Special
Inquiry Officer Whether res judicata or double jeopardy — Whether matter merged by earlier judgment of Federal Court of Appeal — Proper person to be named respondent in prohi bition application — Immigration Act, R.S.C. 1970, c. I-2, s. 22.
McIntosh v. Parent [1924] 4 D.L.R. 420, applied. APPLICATION for writ of prohibition. COUNSEL:
Joseph C. DePaoli for applicant. Neil Dunne for respondent.
SOLICITORS:
Beaumont, Proctor, Calgary, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment rendered in English by
MAGUIRE D.J.: This application came before me at Calgary, Alberta, on December 5, 1976. Certain personal plans completed prior to the date of hearing have resulted in the delay in delivery of my judgment.
This application is for a writ of prohibition prohibiting W. L. Vanderguard, a Special Inquiry Officer under the provisions of the Immigration Act', from proceeding with an inquiry to deter mine the status of the applicant in Canada. This inquiry commenced at Calgary, Alberta, on the 22nd day of October 1976, and was adjourned to permit this application to be made.
R.S.C. 1970, c. I-2.
Pursuant to a report under section 22 of the Immigration Act, dated May 11, 1976, by W. F. O'Connor, an immigration officer under the provi sions of the Immigration Act, a special inquiry was held before W. M. Wilson, Special Inquiry Officer at Calgary, Alberta, completed on July 2, 1976. This Special Inquiry Officer found and held rela tive to the applicant:
(i) You are not a Canadian citizen.
(ii) You are not a person having Canadian domicile.
(iii) You are a member of a prohibited class of persons described in paragraph 5(d) of the Immigration Act, a person who has been con victed of any crime involving moral turpitude and whose admission to Canada has not been authorized by the Governor-in-Council.
The Special Inquiry Officer, by order dated July 2, 1976, ordered the applicant to be deported.
This deportation order was set aside by judg ment of the Court of Appeal, without written reasons, dated September 22, 1976.
The Court record, however, on this appeal, pre pared pursuant to Rule 200(7)(b) shows that the Chief Justice asked counsel for the respondent how the report referred to above could be a proper (section 22) report. Counsel for the respondent Minister concurred in the view and that the appeal should be allowed. It follows that the section 22 report was irregular and thus did not confer juris diction on the Special Inquiry Officer to hold the inquiry.
The grounds advanced by the applicant for the relief now sought are:
(a) That the matter is res judicata.
(b) That the matter is contrary to the rule of double jeopardy.
(c) That the matter was merged by the judg ment of the Federal Court of Appeal dated September 22, 1976.
Res judicata and merger only apply when the first tribunal was competent and had jurisdiction to hear and determine the matter brought before it. McIntosh v. Parent 55 O.L.R. 552; [1924] 4
D.L.R. 420, Halsbury's Laws of England, 3rd ed., vol. 1, p. 204. Here the first Special Inquiry Offi cer did not have jurisdiction by reason of the irregular report and it follows that these two grounds do not support the application.
For similar reasons double jeopardy has not occurred.
It is not necessary for me to consider the application of section 27(4) of the Immigration Act.
The foregoing reasons dispose of this application for prohibition, but I think I might well refer to another factor. The sole respondent on this application is the Attorney General of Canada. I am of the opinion that where prohibition is sought against a known and specified person, that that person is a required and necessary respondent. It may be, but I do not so decide, that naming the Minister of Manpower and Immigration, within whose department the Special Inquiry Officer is employed, would be adequate for the purposes of an application of this nature. The Attorney Gener al of Canada is not in that latter category.
The application is dismissed with costs.
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