T-893-77
Frank Woodbridge Sparrow (Applicant)
v.
Minister of Manpower and Immigration
(Respondent)
Trial Division, Mahoney J.—Toronto, March 21;
Ottawa, March 25, 1977.
Immigration — Application for writ of mandamus to
compel reopening of special inquiry — Applicant ordered
deported pursuant to s. 18 of Immigration Act — Whether
Special Inquiry Officer can consider claim of refugee status —
Immigration Act, R.S.C. 1970, c. I-2, ss. 18(1)(e), 28 —
Immigration Appeal Board Act, R.S.C. 1970, c. I-3, s.
15 ( 1 )(b)(î)
The applicant was ordered deported after a special inquiry
establishing that he had been convicted and imprisoned under
the Criminal Code. He seeks to have the inquiry reopened to
hear evidence that he is a deserter from the United States army
so that he may claim refugee status.
Held, the application is dismissed. Nothing in the Immigra
tion Act requires a Special Inquiry Officer to consider a claim
to refugee status or, if he does, permits him to act on it. Only
the Immigration Appeal Board may take such a claim into
account.
APPLICATION for writ of mandamus.
COUNSEL:
M. Green, Q.C., for applicant.
A. Pennington for respondent.
SOLICITORS:
Green & Spiegel, Toronto, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
MAHONEY J.: This is an application for a writ
of mandamus to compel a Special Inquiry Officer
to reopen an inquiry as contemplated by section 28
of the Immigration Act'. Following a hearing, at
which he was present and declined representation
by counsel, the applicant was determined by the
Special Inquiry Officer to be a person, not a
Canadian citizen and not having a Canadian dom
icile, who had been convicted of an offence under
the Criminal Code as described in subparagraph
18(1)(e)(ii) of the Act and one who had become
an inmate of a penitentiary as described in sub-
paragraph 18 (1) (e) (iii). He was ordered deported.
In asking the Special Inquiry Officer to reopen
the inquiry to hear and receive additional evidence,
the applicant deposed, inter alia, that he had
deserted from the American Army as a result of
his political objections to the Vietnam War and
went on:
5. I am advised and verily believe that I am a member of a
group of political dissenters who upon return to the United
States are being prosecuted by the United States Military
Authorities because of their political objections.
6. I never was asked nor did I know I could file such
evidence at my original Inquiry.
7. I am advised by counsel and verily believe that by reason
of my membership in this group of political dissenters I may
have a claim to refugee status as is defined by "the
Convention".
8. I desire an opportunity to re-open my Inquiry to present
this evidence and thereby will have an opportunity of filing a
declaration concerning my claim.
The Special Inquiry Officer declined to reopen the
inquiry on the ground that the matters raised "are
not relevant to the decision which I rendered".
The Immigration Appeal Board may take a
' R.S.C. 1970, c. I-2.
28. An inquiry may be reopened by a Special Inquiry
Officer for the hearing and receiving of any additional
evidence or testimony and a Special Inquiry Officer has
authority, after hearing such additional evidence or testimo
ny, to confirm, amend or reverse the decision previously
rendered.
claim of refugee status into account 2 . However,
nothing in the Immigration Act requires a Special
Inquiry Officer to consider such a claim nor, if he
were to consider it, permits him to act on it.
The Special Inquiry Officer was entitled to rely
on the application to reopen the inquiry and the
material supporting it for full disclosure of the
purpose of reopening it and the material facts
sought to be proved by the additional evidence. He
was under no obligation to reopen the inquiry to
hear argument or elaboration. He was entirely
correct in concluding from that disclosure that the
additional evidence was not relevant to issues
before him in the inquiry. It follows that the
Special Inquiry Officer was under no public duty,
in this instance, to reopen the inquiry and receive
the evidence and that mandamus does not lie in
respect of his refusal to do so.
In argument, counsel for the applicant alleged
that the Special Inquiry Officer had failed to
comply with the mandatory provisions of subsec
tion 12(b) of the Immigration Regulations. That
was not a ground disclosed in the originating
notice of motion herein. The evidence before me is
by no means conclusive of that allegation and, in
any case, the respondent had no fair opportunity to
meet it. I have declined to consider it as a basis for
granting the order sought.
This application and the complementary
application for a writ of prohibition against execu
tion of the deportation order will be dismissed, the
latter without costs.
2 The Immigration Appeal Board Act, R.S.C. 1970, c. I-3.
15. (1) Where the Board dismisses an appeal against an
order of deportation or makes an order of deportation pursu
ant to paragraph 14(c), it shall direct that the order be
executed as soon as practicable, except that the Board may,
(b) in the case of a person who was not a permanent
resident at the time of the making of the order of deporta
tion, having regard to
(i) the existence of reasonable grounds for believing
that if execution of the order is carried out the person
concerned will be punished for activities of a political
character or will suffer unusual hardship.....
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