T-1777-77
Jag Dish Bhadauria (Plaintiff)
v.
Minister of Manpower and Immigration (Defend-
ant)
Trial Division, Walsh J. Toronto, June 13;
Ottawa, June 17, 1977.
Immigration Application by plaintiff for declaration of
nominee's compliance with immigration standards — Defend
ant moves to strike pleadings — No reasonable cause of action
Nominee not granted interview by immigration officer —
Insufficient "units" assessed for occupational demand —
Interview only for personal assessment, and hence of no effect
— Administrative decision not reviewable Immigration
Regulations, SOR/62-36, s. 33(2),(3).
Plaintiff seeks a declaration that his brother, nominated by
him for admission to Canada as an immigrant, complies with
the law in force at the time of his nomination, and that the
defendant issue an entry visa. His contention is that no inter
view had been granted the nominee by an immigration officer,
contrary to the audi alteram partem rule, and that the defend
ant wilfully refused his nominee suitable assessment units for
his occupation. The defendant moves to strike the statement of
claim for disclosing no reasonable cause of action. It is argued
that the audi alteram partem rule does not apply because the
decision was purely administrative. Furthermore, an inter-
view—which is only used for personal assessment would be of
no avail because the nominee had scored no assessment units
for occupational demand and therefore was ineligible for
admission.
Held, the action is dismissed. The proceedings do not disclose
a reasonable cause of action. The Court has no jurisdiction to
grant the relief sought, for it would require the Court to
substitute itself for the immigration or visa officer and make a
determination on a matter within his administrative discretion,
and to issue an order to the Minister with respect to an
administrative order. The decision to grant or refuse admission
to Canada as a permanent resident is an administrative deci
sion, and if refused is not subject to judicial review or review by
anyone other than the Minister.
ACTION.
COUNSEL:
Jag Dish Bhadauria appearing on his own
behalf.
K. F. Braid for defendant.
SOLICITORS:
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
WALSH J.: Plaintiff's statement of claim seeks a
declaration that his brother Kedar Singh whom he
has nominated for admission to Canada pursuant
to section 33 of the Immigration Regulations'
complies with the requirements of the Act and
Regulations in force at the time of the nomination,
and a direction that defendant issue an entry visa
to him.
Defendant moves to strike the statement of
claim as disclosing no reasonable cause of action.
Plaintiff contends that his brother was not called
for an interview with an immigration officer in
New Delhi with respect to his application for
permanent residence completed on September 26,
1974, but, as requested, gave written information
as to his occupation and the work he intended to
do in Canada as an engineering technician. He
contends that the failure to interview him is con
trary to the audi alteram partem rule and that
defendant wilfully refused to award him suitable
units of assessment for an engineering technician.
Counsel for defendant contends that the audi
alteram partem rule does not apply as the decision
is purely administrative and that to require an
applicant to attend for an interview when he would
not be admissible even if he received the maximum
units for personal assessment, because his applica
tion showed that he would receive no units for
occupational demand or arranged employment,
and therefore would not be admissible, would
impose an unnecessary hardship on him. Unlike
the recent unreported judgment in T-1779-77,
McDoom v. M.M. & I., dated June 10th, 1977, the
amendment of February 22nd, 1974, (SOR/74-
113) incorporating section 33(2)(c) in the Regula
tions clearly applies to the assessment required to
be made in the present case. That subsection reads
as follows:
' SOR/62-36 as amended.
33....
(2) A nominated relative and his immediate family may be
granted admission to Canada for permanent residence if
(c) he achieves at least one unit of assessment for occupa
tional demand or has arranged employment or a designated
occupation for which he would have achieved 10 units of
assessment if he had been examined as an independent
applicant.
Subsection (3) of section 33 requires an assess
ment in accordance with Schedule B and an
examination of Schedule B shows that whereas,
with respect to subsection 1(b) a "Personal"
assessment is to be made "during an interview
with the applicant by an immigration or visa offi
cer", the assessment for "Occupational demand"
required by subsection 1(c) is to be made "On the
basis of information gathered by the Department
on employment opportunities in Canada...." A
further examination of Schedule B indicates that
the assessments to be made under subsection 1(a)
for "Education and training" and subsection 1(e)
for "Age" would not require a personal interview
and the same probably applies to subsection 1(d)
for "Occupational skill", all of which information
can be elicited by a questionnaire or from docu
mentation submitted. It is only when the number
of units to be awarded for "Personal assessment"
require to be evaluated that an interview is neces
sary, so the fact that plaintiff's brother was not
interviewed does not constitute a deprival of his
rights.
In any event the Court has no jurisdiction to
grant the relief sought, which would require the
Court to substitute itself for the immigration or
visa officer and make a determination on a matter
within his administrative discretion, and to issue
an order to the Minister with respect to an
administrative matter. The decision to grant or
refuse admission to Canada as a permanent resi
dent in accordance with the Immigration Act and
Immigration Regulations is an administrative
decision and if refused is not subject to judicial
review or review by anyone other than the Minis
ter. See Koula Gana v. M.M. & 1. 2 in which
Abbott J. said at page 712:
The decision, to grant or refuse such status in accordance
with the Act and the regulations, is made in the discretion of
the immigration officer at the port of entry, and is an adminis
trative decision. It is not subject to review judicial or otherwise
by anyone other than the Minister. In many cases, would-be
immigrants are examined abroad as to their suitability and, if
found to be acceptable, are granted a visa authorizing them to
enter Canada as landed immigrants. If permission is refused
that is the end of the matter.
See also Addy J. in "B" v. The Commission of
Inquiry pertaining to the Department of Manpow
er and Immigration' at pages 620-21 where he
said:
I feel that declaratory relief described in section 18(a) of the
Federal Court Act must be taken to mean declaratory relief
where bodies are not exercising judicial or quasi-judicial func
tions but are merely persons or bodies exercising powers of a
non-judicial character.
The present proceedings therefore do not dis
close a reasonable cause of action so that defend
ant's motion seeking to strike them out is well
founded.
ORDER
Plaintiff's proceedings are struck out with costs.
2 [1970] S.C.R. 699.
3 [1975] F.C. 602.
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.