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T-1035-77
Leslie Anthony Pierre and Amy Amelia Pierre (Applicants)
v.
Minister of Manpower and Immigration and J. R. Pickwell (Respondents)
Trial Division, Mahoney J.—Vancouver, May 9; Ottawa, May 11, 1977.
Citizenship and immigration — Application for mandamus and prohibition — Mandamus to require Minister to dispose of landed immigrant application and prohibition to prohibit special inquiry pursuant to s. 25 of Immigration Act, R.S.C. 1970, c. I-2.
The applicant seeks a writ of mandamus requiring the Minister to dispose of his application to be a landed immigrant, and a writ of prohibition prohibiting an immigration officer from proceeding with a special inquiry. The applicant was refused permission to become a landed immigrant by the Minister in 1971 and was so informed in a "check-out" letter. After a special inquiry, as a result of the Minister's decision, the applicant was ordered deported in March 1974; this order was quashed by the Immigration Appeal Board in July 1974 on technical and procedural grounds. The applicant subsequently was convicted of a criminal offence. This conviction triggered the proceedings leading to the special inquiry that the applicant seeks to prohibit. The disposition of the application to be a landed immigrant is a condition precedent to the inquiry for which prohibition is sought.
Held, the application is dismissed. The application for man- damus would appear to have been disposed of in 1971, when the applicant was notified of the Minister's decision to refuse him landed immigrant status. Leiba v. M.M. & I. is not authority for the proposition that a decision communicated by a check-out letter has not been made or communicated; rather it is authority for the proposition that a person acting on the check-out letter does not waive his right to appeal that decision. The other reason that the application to be landed is said not to be disposed of stems from the fact that the deportation order was quashed "purely on procedural and technical grounds". The Minister's conduct of the case gave the applicant the grounds, albeit technical, for a successful appeal. The applicant argues that, in doing so, the Minister had denied him natural justice for the Minister closed an avenue of appeal that would have been available had the applicant failed in his appeal to the Board. This argument fails.
Leiba v. M.M. & I. [1972] S.C.R. 660, discussed. APPLICATION.
COUNSEL:
D. J. Rosenbloom for applicants. A. D. Louie for respondents.
SOLICITORS:
Rosenbloom, Germaine & Jackson, Vancou- ver, for applicants.
Deputy Attorney General of Canada for respondents.
The following are the- reasons for judgment rendered in English by
MAHONEY J.: The style of cause herein will be ordered amended to that set out above. The first paragraph previously read:
IN THE MATTER OF THE IMMIGRATION ACT, R.S.C. CHAPTER 325 AND AMENDMENTS THERETO
While it does not say so, the Revised Statutes of Canada of which chapter 325 was the Immigra tion Act were those of 1952. That Act was repealed and replaced by R.S.C. 1970, c. I-2 effec tive July 15, 1971 1 . While the 1952 Act was in effect during a portion of the time material hereto, its relevant provisions and those of the present Act appear identical. All references herein are to the present Act.
Since it appeared necessary to correct the style of cause anyway, I have added the names of the applicants and respondents. Where proceedings commenced by originating notice of motion are adversary proceedings, as these plainly are, it is desirable that the style of cause name the party or parties seeking judgment and those sought to be bound by it in the same way as if it were an action commenced by statement of claim.
As a result of the consent of the respondent Minister, a writ of mandamus will issue requiring that the Minister deal with and dispose of the application of Amy Amelia Pierre to be landed as an immigrant in Canada, said application having been made November 26, 1971. That is the entire relief sought by Amy Amelia Pierre and, accord ingly, references to the applicant hereafter, unless expressly to her, are to Leslie Anthony Pierre. He seeks (1) a writ of mandamus requiring the respondent Minister to deal with and dispose of his application to be landed as an immigrant in Canada and (2) a writ of prohibition (or injunction
1 SOR/71-309; S.C. 1964-65, c. 48, s. 6.
or restraining order) directed to the respondent Pickwell prohibiting him from proceeding further with the special inquiry concerning the applicant that was initiated January 21, 1976.
The applicant entered Canada from Grenada as a non-immigrant September 16, 1970. He applied to be landed as an immigrant October 5, 1970. His application was refused and he was so advised by a "check-out" letter requesting him to leave Canada by May 21, 1971, failing which he was ordered to report to an immigration officer to arrange an examination under section 22 of the Act 2 . He retained an immigration consultant. The examina tion was held and a report made to a Special Inquiry Officer.
Before the date for the special inquiry under subsection 23(2) was set, a general review was begun of all rejected applications for landing by persons known still to be in Canada'. The appli cant was invited to have his application reviewed. Appointments were fixed and letters written to him. He did not appear. His counsel says he was "incommunicado". In fact, he had moved from Toronto to Vancouver, in June 1972, and had not advised either the consultant or immigration authorities of his whereabouts. On October 25, 1973, accompanied by the consultant, he presented himself to an immigration officer in Toronto. The special inquiry, based on the section 22 report of August 26, 1971 was held and, in the result, on March 11, 1974 the applicant was ordered deport ed. An appeal was taken to the Immigration
2 22. Where an immigration officer, after examination of a person seeking to come into Canada, is of opinion that it would or may be contrary to a provision of this Act or the regulations to grant admission to or otherwise let such person come into Canada, he may cause such person to be detained and shall report him to a Special Inquiry Officer.
23. (2) Where the Special Inquiry Officer receives a report under section 22 concerning a person, other than a person referred to in subsection (1), he shall admit him or let him come into Canada or may cause such person to be detained for an immediate inquiry under this Act.
This appears to have been complementary to the so-called "amnesty" offered at about the same time to persons illegally in Canada. An Act to amend the Immigration Appeal Board Act, S.C. 1973-74, c. 27, s. 8.
Appeal Board and "purely on procedural and tech nical grounds" the deportation order was quashed July 11, 1974.
On October 23, 1974, an immigration officer reported that the applicant was a person falling within the terms of subparagraph 18(1)(e)(ii) of the Act and an inquiry by a Special Inquiry Offi cer was initiated pursuant to section 25 4 . The inquiry was convened in Vancouver, December 3, 1974. The applicant appeared and, at his request, the inquiry was adjourned to March 13, 1975 because the applicant's Toronto consultant was not available. On March 13, it was again adjourned for the same reason to April 3, 1975. On April 3, it was adjourned to October 15, 1975 pending the outcome of the applicant's trial on criminal charges and, thereafter, for the same reason, the inquiry was successively adjourned until, on or about December 22, 1975, immigration authorities were advised that the applicant had pleaded guilty and been sentenced to six months imprisonment commencing December 29. A new section 18 report was directed by the immigration officer to the Director reporting the most recent conviction and sentence, as well as the earlier convictions upon which the October 23, 1974 report had been based, and also, as a result of the sentence, bring ing subparagraph 18(1)(e)(iii) into play. The sec tion 25 inquiry now sought to be prohibited was directed January 21 and commenced March 24, 1976 and was adjourned several times to permit these proceedings to be brought.
18. (1) Where he has knowledge thereof, ... an immigra tion officer ... shall send a written report to the Director, with full particulars, concerning
(e) any person, other than a Canadian citizen or a person with Canadian domicile, who
(ii) has been convicted of an offence under the Criminal Code,
(iii) has become an inmate of a penitentiary, gaol, refor matory or prison or of an asylum or hospital for mental diseases,
25. Subject to any order or direction by the Minister, the Director shall, upon receiving a written report under section 18 and where he considers that an inquiry is warranted, cause an inquiry to be held concerning the person respecting whom the report was made.
The application for prohibition must succeed or fail with the application for mandamus. No defects in the present section 25 proceedings, per se, are disclosed. The applicant asserts that dispo sition of his application to be landed as an immi grant is a condition precedent to the section 25 inquiry. I accept that.
That application would, however, appear to have been disposed of and the applicant notified by the "check-out" letter of May 7, 1971. The applicant relies on Leiba v. M.M. & 1. 5 as authority for the contrary proposition.
In that case, a non-immigrant acted upon the "check-out" letter and left Canada without a sec tion 22 report and a section 23 inquiry. Later he returned and, after the expiration of his second visitor's visa again applied to be landed. The second application was rejected because of that time element; a section 22 report was made, a section 23 inquiry held and a deportation order issued. It was held that the "check-out" letter was an administrative practice and "in effect a depor tation order, made without authority" and that, in the circumstances, the person acting upon it had been wrongly deprived of his right to appeal the rejection of his first application to be landed.
Here, the applicant did not act to his detriment on the "check-out" letter. The Leiba decision is not authority for the proposition that a decision communicated by a "check-out" letter had not been made or communicated. Rather it is author ity for the proposition that an applicant who acts upon it by leaving Canada does not thereby, per se, waive his right to a section 22 report and a section 23 inquiry, in other words, his right to appeal that decision. This applicant has had the Minister's decision and, in the result, successfully appealed it.
The other reason that the application to be landed is said not to have been disposed of stems from the fact that the deportation order was
5 [1972] S.C.R. 660.
quashed "purely on procedural and technical grounds" 6 . Because the Minister so handled the matter that that resulted, the applicant was "deprived of his appellate rights of having the Immigration Appeal Board consider his case not only according to questions of law but on the issue of whether their discretionary power" under sub section 15(1) of the Immigration Appeal Board Act' should be invoked. In other words, by giving him grounds for a successful appeal against the deportation order, the Minister had denied him natural justice by denying him a right that could only have accrued had his appeal failed. That is utter nonsense. It does not lie in the applicant's mouth to complain that, because he succeeded in an appeal he elected to take, he lost a right contingent upon his failure.
The application of Leslie Anthony Pierre will be dismissed. It is by no means clear to me that the Minister would have dealt properly with the application of Amy Amelia Pierre in the absence of this application. This appears to be a proper case for the parties to bear their own costs.
JUDGMENT
1. On consent, the application of Amy Amelia Pierre is granted without costs.
2. The application of Leslie Anthony Pierre is dismissed without costs.
3. The style of cause is amended to accord with that set forth above.
6 File No. 74-7001, reasons of the Immigration Appeal Board dated July 30, 1974, p. 5.
R.S.C. 1970, c. I-3.
15. (1) Where the Board dismisses an appeal against an order of deportation ... the Board may, ... [in certain specified cases] direct that the execution of the order ... be stayed, or quash the order or quash the order and direct the grant or entry or landing to the person against whom the order was made.
The emphasis is mine. I have not set out the specified cases since there is no evidence before me as to which might be pertinent.
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