Judgments

Decision Information

Decision Content

T-3890-77
Delivrance Immacula Laneau (Applicant)
v.
L. G. Rivard (Respondent)
and
Minister of Immigration (Mis -en-cause)
Trial Division, Decary J.—Montreal, November 14; Ottawa, December 21, 1977.
Prerogative writs — Immigration — Application for prohi bition to prevent Special Inquiry Officer from proceeding with inquiry re deportation — Application to Minister for permit in accordance with section 8 discretionary power before inquiry initiated — Whether Special Inquiry Officer has jurisdiction to proceed with inquiry — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 2, 28 — Immigration Act, R.S.C. 1970, c. I-2, ss. 8, 11, 18, 27.
Applicant, a non-immigrant liable for deportation, applies in prohibition to prevent the Special Inquiry Officer from pro ceeding with an inquiry on the ground that she had requested the Minister, before the inquiry was ever begun, to issue a permit in accordance with the discretion conferred on him under section 8 of the Immigration Act. The issue is whether to allow or dismiss this application.
Held, the application is allowed. The Minister's powers under section 8 have priority over those given the Special Inquiry Officer under sections 11 and 27, where both are responsible for decisions in the same case. The power of the Minister to issue or to refuse to issue a permit is within his exclusive jurisdiction. Legal theory and the maxim "delegatus non potest delegare", in the absence of statutory authorization, prohibit respondent from taking any action which could later prevent the Minister from rendering a decision favourable to the applicant under section 8. This would happen if the Special Inquiry Officer were to hold the inquiry and decide to issue a deportation order, for applicant would then come under a category of persons to whom the Minister may not issue a permit.
Attorney General of Canada v. Cylien [1973] F.C. 1166, applied. British Columbia Packers Limited v. Canada Labour Relations Board [1973] F.C. 1194, applied. Ramawad v. Minister of Manpower and Immigration [1978] 2 S.C.R. 375, applied.
APPLICATION for judicial review. COUNSEL:
Michel Coulanges for applicant.
Suzanne Marcoux-Paquette for respondent
and mis -en-cause.
SOLICITORS:
Michel Coulanges, Montreal, for applicant.
Deputy Attorney General of Canada for respondent and mis -en-cause.
The following is the English version of the reasons for order rendered by
DECARY J.: The issue is whether to allow or dismiss an application in prohibition to prevent the Special Immigration Inquiry Officer from pro ceeding with an inquiry, on the ground that appli cant had requested the Minister, before the inquiry was ever begun, to rule on her case in accordance with the discretion conferred on him under section 8 of the Act.
A fairly detailed explanation of the facts is called for. Applicant arrived in Canada on August 21, 1974 as a non-immigrant. She worked as a domestic, and met all the requirements of the Act until the day she quit work because of complica tions in her pregnancy. Her fiancé, Joseph Lucien Paul, a Canadian citizen by whom applicant was pregnant, took her to live with his parents. Know ing that she might be deported from the country since she had to give up her job, her fiancé then did not show up for their wedding. Applicant's child, Jean Jacky Laneau, was born in Montreal on April 30, 1976. Applicant filed a paternity suit against Joseph Lucien Paul, and since she feared that deportation would make it impossible for her to protect her son's rights to maintenance, she applied to the Minister of Immigration on April 14, 1977 for a permit to be issued in accordance with the discretion conferred on him by section 8 of the Immigration Act. It is important to note that this application was made before the immi gration authorities summoned or even com municated with applicant. The office of the Minis ter of Immigration acknowledged receipt of the said application in a letter dated April 28 and promised a reply within a few weeks. Before receiving an answer from the Minister, however, applicant was summoned to the. Canada Immigra tion Centre in Montreal for a special inquiry. As a preliminary exception at the very beginning of the inquiry, counsel for the applicant challenged the jurisdiction of the Special Inquiry Officer to hold an inquiry before applicant had received an answer from the Minister concerning her application for a
permit, arguing that no provision of the Immigra tion Act or Regulations gave him the power to hold an inquiry under the circumstances. Respond ent, the Special Inquiry Officer, refused to post pone the inquiry, arguing that it was within his jurisdiction to hold the inquiry and that he had the power to decide on his own jurisdiction, even when it was not expressly stated in the Act.
Applicant's application for a permit reads as follows (Exhibit R-2):
[TRANSLATION] c/o 4115 St Denis
Montreal, Quebec H2W 2M7
April 14, 1977
Mr. Bud Cullen
Minister of Immigration
Ottawa, Canada
Dear Sir:
I am writing to you today in a last desperate attempt to obtain authorization to remain in Canada long enough to see that my rights and those of my son, Jean Jacky Laneau, are not lost forever. I have had more than my fair share of hardships and humiliation during my stay here for me to have to give up at the last moment my chance of obtaining even the smallest amount of compensation for the damage which I have suffered and my son may suffer.
I arrived in Canada on August 21, 1974 with a valid permit to work as a domestic.
I met one Joseph Lucien Paul who persuaded me, after endless promises of happiness in staying in Canada and marry ing him, to enjoy with him that amorous relationship which all women are happy to know. To prove his good intentions, Joseph Lucien Paul took me to meet his family, and from that time my relations with him, which were already marked by mutual admiration and affection, increased rapidly.
I became pregnant by my fiancé and because of complica tions in my pregnancy, I was unable to continue to perform satisfactorily for my employers and had to give up my job. My fiancé took me to live with those who were to become my parents-in-law while awaiting preparations for our marriage. All was arranged, but on the day set for our wedding, my fiancé did not show up.
Under the circumstances, I was forced to make up my mind, and finally left my fiancé's parents' home.
On November 30, 1976 I gave birth to a child, whom I named Jean Jacky Laneau.
Because I believe, sir, that my son has a right to food and a reasonably decent education, I had to file a paternity suit in the courts of the province of Quebec to protect my son and ensure
that he would never become a burden to the Canadian govern ment, or to any government. The proceedings in this paternity suit have not yet been concluded and my counsel bas advised me that the rights of Jean Jacky could be seriously compro mised if I am not present to testify at the hearing of the case.
Sir, to prevent my deportation before the judgment in this case, which could facilitate the perpetration of an abominable injustice against Jean Jacky and myself, we would be forever grateful to you if you could allow us to remain in Canada until the judgment, and instruct the Canada Immigration Centre in Montreal to issue a one-year work permit, renewable until the end of the aforementioned proceedings.
Please find enclosed a copy of Jean Jacky's birth certificate as well as a letter from the Church proving this abominable deceit of which we were the victims.
In the hope, sir, that your answer will enable us to live with dignity, respect and independence, I thank you in advance.
Yours truly,
Delivrance Immacula Laneau
This letter clearly requests authorization to remain in Canada [TRANSLATION] "long enough to see that my rights and those of my son, Jean Jacky Laneau, are not lost forever", and that she be granted "a one-year work permit".
Two weeks later, applicant received the follow ing letter from the Department of Immigration:
[TRANSLATION] April 28, 1977
Mrs. Délivrance Immacula Laneau
c/o 4115 St Denis
Montreal, Quebec
H2W 2M7
Dear Madam:
The Minister's office has asked us to follow up on your
recent request for information concerning your situation.
Since we believe that the subject would be dealt with more effectively and quickly by our field officers, we have referred your request to our Montreal, Quebec office (Atwater).
You should receive an answer within the next few weeks.
Yours truly,
(sgd) G. Desormeaux for J. St-Onge
Acting Director General
Facilitation, Enforcement and Control
Even regarding this letter as no more than an acknowledgment of receipt, one can rightly wonder at the reference to applicant's letter as a request for information. This answer shows a lack of atten tion on the part of the Department.
On September 21, 1977 applicant was sum moned for a special inquiry, as indicated in the form letter below:
[TRANSLATION]
Our file
2496-1-710
September 21, 1977
Miss Immacula Délivrance LANEAU
6545 Boyer St.
Montreal, Quebec
Dear Madam:
Pursuant to subsection 18(1) of the Immigration Act, a report concerning you has been sent to the Director of Immi gration, who in accordance with section 25 of the said Act has issued an order of inquiry. Please find enclosed:
the order of inquiry, the report and the supporting documents.
Pursuant to this order, an immigration inquiry will be held. We therefore ask that you report to the Canada Immigration Centre, Alexis Nihon Plaza, 11th Floor, 1500 Atwater Ave, Montreal, Quebec at 8:30 a.m. on September 21, 1977.
The purpose of this inquiry is to determine whether you may remain in Canada. If it is determined that you do not meet the requirements of the Immigration Act and Regulations to remain in Canada, a deportation order will be issued against you.
Pursuant to subsection 26(2) of the Immigration Act, you have the right to be represented by counsel at this hearing, at your own expense. Enclosed is a notice to this effect.
Please bring this letter, the enclosed notice and your passport when you appear before the Special Inquiry Officer.
Yours truly, (sgd) G. Savard
Supervisor, Inquiries
Canada Immigration Centre
c.c. Mr. M. Coulanges, 4115 St. Denis St., Montreal, Quebec, Suite 6
With respect to the jurisdiction of the Special Inquiry Officer, it should be noted from the outset that he is a "person ... having, exercising or purporting to exercisejurisdiction or powers con ferred by or under an Act of the Parliament of Canada", and therefore comes under the "federal board, commission or other tribunal" category as defined in section 2 of the Federal Court Act.
The nature of the decision of the Special Inquiry Officer to refuse the request for postponement made at the beginning of the inquiry must be determined. This decision by the Special Inquiry Officer was not taken in the exercise of his deci- sion-making powers, since his powers regarding the conduct of an inquiry are defined in sections 11, 18 and 27 of the Immigration Act.
The powers of the Special Inquiry Officer are defined in section 11 of the Act:
11. (1) Immigration officers in charge are Special Inquiry Officers and the Minister may nominate such other immigra tion officers as he deems necessary to act as Special Inquiry Officers.
(2) A Special Inquiry Officer has authority to inquire into and determine whether any person shall be allowed to come into Canada or to remain in Canada or shall be deported.
(3) A Special Inquiry Officer has all the powers and au thority of a commissioner appointed under Part I of the In quiries Act and, without restricting the generality of the forego ing, may, for the purposes of an inquiry,
(a) issue a summons to any person requiring him to appear at the time and place mentioned therein, to testify to all matters within his knowledge relative to the subject-matter of the inquiry, and to bring with him and produce any document, book or paper that he has in his possession or under his control relative to the subject-matter of the inquiry;
(b) administer oaths and examine any person upon oath, affirmation or otherwise;
(c) issue commissions or requests to take evidence in Canada;
(d) engage the services of such counsel, technicians, clerks, stenographers or other persons as he may deem necessary for a full and proper inquiry; and
(e) do all other things necessary to provide a full and proper inquiry.
Section 18 of the Act deals with cases where, inter alia, the Special Inquiry Officer must hold an inquiry and make a report:
18. (1) Where he has knowledge thereof, the clerk or secre tary of a municipality in Canada in which a person hereinafter described resides or may be, an immigration officer or a constable or other peace officer shall send a written report to the Director, with full particulars, concerning
(a) any person, other than a Canadian citizen, who engages in, advocates or is a member of or associated with any organization, group or body of any kind that engages in or advocates subversion by force or other means of democratic government, institutions or processes, as they are understood in Canada;
(b) any person, other than a Canadian citizen, who, if in Canada, has, by a court of competent jurisdiction, been convicted of any offence involving disaffection or disloyalty to Her Majesty;
(c) any person, other than a Canadian citizen, who, if out side Canada, engages in espionage, sabotage or any activity detrimental to the security of Canada;
(d) any person, other than a Canadian citizen, who is con victed of an offence under section 3, 4, 5 or 6 of the Narcotic Control Act;
(e) any person, other than a Canadian citizen or a person with Canadian domicile, who
(i) practises, assists in the practice of or shares in the avails of prostitution or homosexualism,
(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,
(iv) was a member of a prohibited class at the time of his admission to Canada,
(v) has, since his admission to Canada, become a person who, if he were applying for admission to Canada, would be refused admission by reason of his being a member of a prohibited class other than the prohibited classes described in paragraphs 5(a),(b),(c) and (s),
(vi) entered Canada as a non-immigrant and remains therein after ceasing to be a non-immigrant or to be in the particular class in which he was admitted as a non-immigrant,
(vii) came into Canada at any place other than a port of entry or eluded examination or inquiry under this Act or escaped from lawful custody or detention under this Act,
(viii) came into Canada or remains therein with a false or improperly issued passport, visa, medical certificate or other document pertaining to his admission or by reason of any false or misleading information, force, stealth or other fraudulent or improper means, whether exercised or given by himself or by any other person,
(ix) returns to or remains in Canada contrary to this Act after a deportation order has been made against him or otherwise, or
(x) came into Canada as a member of a crew and, without the approval of an immigration officer or beyond the period approved by such officer, remains in Canada after the departure of the vehicle on which he came into Canada.
(2) Every person who is found upon an inquiry duly held by a Special Inquiry Officer to be a person described in subsection (1) is subject to deportation.
Subsection (2) of section 18 provides that every person who comes under one of these headings is subject to deportation. Applicant allegedly comes under 18(1)(e)(vi).
The choice and conditions of the Special Inquiry Officer's decision are provided for under section 27 of the Act:
27. (1) At the conclusion of the hearing of an inquiry, the Special Inquiry Officer shall render his decision as soon as possible and shall render it in the presence of the person concerned wherever practicable.
(2) Where the Special Inquiry Officer decides that the person concerned is a person who
(a) may come into or remain in Canada as of right;
(b) in the case of a person seeking admission to Canada, is not a member of a prohibited class; or
(c) in the case of a person who is in Canada, is not proved to be a person described in paragraph 18(1)(a),(b),(c),(d) or (e),
he shall, upon rendering his decision, admit or let such person come into Canada or remain therein, as the case may be.
(3) In the case of a person other than a person referred to in subsection (2), the Special Inquiry Officer shall, upon render ing his decision, make an order for the deportation of such person.
(4) No decision rendered under this section prevents the holding of a future inquiry if required by reason of a subse quent report under section 18 or pursuant to section 24.
The Special Inquiry Officer may render deci sions within the meaning of section 28(1) of the Federal Court Act within the framework of his powers under the above sections, but outside this framework as in the case at bar, his decisions are simple conclusions, as is borne out by a consistent line of authority.
Thus, in The Attorney General of Canada v. Cylien', the Chief Justice of the Court distin guished between the two main categories of deci sions which a board may render: decisions which it may render in the exercise of its jurisdiction or of its powers to decide, which have legal effect, and decisions which it makes as to the nature of the powers upon which it intends to act, which have no legal effect. Jackett C.J. stated, at pages 1175 and 1176, ibid.:
'[1973] F.C. 1166.
That being so, the question to be decided on this application, in my view, is whether such a refusal to perform a duty or such an assertion of jurisdiction can, in the circumstances of this case, be regarded as a "decision" within the meaning of that word in section 28.
In considering whether what has been put forward here as a decision is a "decision" within the meaning of that word in section 28(1), it is to be remembered that the Immigration Appeal Board is a federal board, commission or other tribunal because it is a body having, exercising or purporting to exercise "jurisdiction or powers" conferred by an Act of the Parliament of Canada (see section 2(g) of the Federal Court Act). A decision that may be set aside under section 28(1), must, therefore, be a decision made in the exercise or purported exercise of "jurisdiction or powers" conferred by an Act of Parliament. A decision of something that the statute expressly gives such a tribunal "jurisdiction or powers" to decide is clearly such a "decision". A decision in the purported exercise of the specific "jurisdiction or powers" conferred by the statute is equally clearly within the ambit of section 28(1). Such a decision has the legal effect of settling the matter or it purports to have such legal effect. Once the tribunal has exercised its "jurisdiction or powers" in a particular case by a "decision" the matter is decided even against the tribunal itself.
What we are concerned with here is something different. The Board has "jurisdiction or powers" under section 11(3) to decide at a preliminary stage whether the respondent's appeal is to be allowed to proceed or not. It has not, however, made that decision as yet. The problem that has arisen, and in respect of which the Board has taken a position, is whether section 11, properly interpreted, requires the Board to make its section 11(3) decision after considering the section 11(2) declaration, and nothing else, or whether the statute requires or permits the Board to consider other material before it makes that decision. This is a question of law that the Board has no "jurisdiction or powers" to decide. It must, of course, form an opinion on that question but that opinion has no statutory effect.
There is a clear difference between a "decision" by the Board of something that it has "jurisdiction or powers" to decide and a decision by it as to the view as to the nature of its own powers upon which it is going to act. Once the Board decides some thing that it has "jurisdiction or powers" to decide in a particular case, that decision has legal effect and the Board's powers with regard to that case are spent. When, however, the Board takes a position with regard to the nature of its powers upon which it intends to act, that "decision" has no legal effect. In such a case, nothing has been decided as a matter of law. The Board itself, whether differently constituted or not, in the very case in which the position was taken, can change its view before it deals with the case and, in fact, proceed on the basis of the changed view.
Thus respondent's decision, made before the Minister hearing the case had rendered his deci sion, was simply an assigning of jurisdiction, since he was in fact ruling on the nature of his own
powers. The Appeal Division of the Court was quite clear on this question in British Columbia Packers Limited v. Canada Labour Relations Board. 2 My brother Thurlow J., as he then was, speaking for himself and for Jackett C.J. and Sheppard D.J., clearly indicated at page 1196 that:
In our opinion the ruling made or position taken by the Board as to its jurisdiction is not a "decision" within the meaning of section 28 of the Federal Court Act and is not reviewable by this Court under that section. It is not within the competence of the Board to decide the limits of its own jurisdiction so as to bind anyone. What the Board can decide is whether or not to certify a union and when it does so its decision will be reviewable under section 28. There may of course be matters arising in the course of proceedings before it, which will be reviewable under section 28, such as, for example, orders to parties to do something which it is within the jurisdic tion of the Board to order them to do. But the ruling here in question is not of that nature and as we view it is of a kind which the Court in Attorney General of Canada v. Cylien held to be not subject to review under section 28.
The motion at bar is therefore well founded in law, as Jackett C.J. moreover implied in The Attorney General of Canada v. Cylien, when he stated with regard to jurisdiction at pages 1174 and 1175:
Assuming the correctness of the Minister's view as to the Board's duty under section 11(3), in my view what the Board did, by the reasons delivered on October 16, properly regarded, constituted either
(a) a refusal to perform its duty under section 11(3), which was to consider the respondent's "declaration" forthwith after its receipt and to make a decision, based only on that consideration, as to whether the appeal should be allowed to proceed or not, or
(b) an assertion of a jurisdiction, which it does not have, to take into account the evidence and representations heard by the Special Inquiry Officer and further evidence and representations that it will itself receive before performing its duty under section 11(3),
or it is both such a refusal to perform its duty and such a wrongful assertion of jurisdiction; and it is clearly a case where mandamus or prohibition or both would lie to determine the exact nature of the Board's duty in the circumstances unless such remedy is taken away by section 28(3).
2 [1973] F.C. 1194.
The discretionary power conferred on the Minis ter is that provided for in section 8 of the Act, which reads as follows:
8. (1) The Minister may issue a written permit authorizing any person to enter Canada or, being in Canada, to remair therein, other than
(a) a person under order of deportation who was not issued such a written permit before the 13th day of November 1967, or
(b) a person in respect of whom an appeal under section 17 of the Immigration Appeal Board Act has been taken that has not been successful.
(2) A permit shall be expressed to be in force for a specified period not exceeding twelve months.
(3) The Minister may at any time, in writing, extend or cancel a permit.
(4) The Minister may, upon the cancellation or expiration of a permit, make a deportation order respecting the person concerned.
(5) The Minister shall submit to Parliament within thirty days of the commencement of the first session of Parliament in each year a report showing all permits, with particulars thereof, issued during the preceding calendar year.
In my opinion, these powers have priority over those given the Special Inquiry Officer under sec tions 11 and 27 of the same Act, where both are responsible for decisions in the same case. The provisions of section 8(1) clearly state that the Minister may issue a written permit authorizing any person in Canada to remain therein, other than in two categories, and it is apparent that neither of them applies to applicant.
The powers of the Special Inquiry Officer are those described in section 11 of the Act (cited above), and his duties are outlined in section 27, under which he is required to render his decision on whether a person shall be allowed to come into Canada or remain in Canada, or whether a depor tation order should be issued.
Section 8 states the focus of the Minister's discretion as well as his right to exercise his discre tion with respect to issuing permits, extending or cancelling them, and issuing deportation orders. The Minister's only obligation when issuing a permit is that mentioned in section 8(5), that is that he must submit a report to Parliament show ing all permits issued during the preceding calen dar year, with particulars thereof.
The Minister and the Special Inquiry Officer can both be responsible for ruling on the same case, involving the same person and having the same purpose, that of remaining in Canada. This is in fact the situation in which applicant found herself, having applied to the Minister for a permit as she was entitled to do, and then having been summoned to a special inquiry to determine whether she could remain in Canada. It is impor tant to note that nowhere in the summons to the inquiry was any reference made to the application for a permit from the Minister.
The power of the Minister to issue or refuse to issue a permit is within his exclusive jurisdiction, and the powers which the Minister may delegate to his representatives are strictly-limited to those authorized by Parliament. No provision of the Act or Regulations authorizes the Minister either directly or indirectly to delegate his powers under section 8 to a Special Inquiry Officer. Because no such legislative authorization has been given, legal theory and the maxim "delegatus non potest dele- gare" prohibit respondent from taking any action which, for all practical purposes, could later pre vent the Minister from rendering a decision favourable to applicant concerning her application under section 8. This is precisely what would happen if the Special Inquiry Officer held the inquiry and decided to issue a deportation order against applicant, since in such a case applicant would come under the category of persons in sec tion 8(1)(b) to whom the Minister may not issue a permit. Applicant would in such a case suffer irreparable damage, since the Special Inquiry Officer would have, for all practical purposes, prevented the Minister from exercising his exclu sive jurisdiction provided for under section 8 of the Act.
A distinction should be made between the nature of the powers conferred on the Minister under section 8 and those delegated to the Special Inquiry Officer under sections 11 and 27. In the first case, it is a purely administrative function, whereas in the second, it is a quasi-judicial func tion, subject to the supervisory power and control of the courts.
The refusal of respondent to adjourn the inquiry may ruin applicant's chances of a favourable deci-
sion concerning her application under section 8, since the right or privilege of being able to make an application always implies that of receiving a decision on the application for a privilege. This interpretation is moreover borne out by the second last paragraph of the April 28, 1977 letter to applicant, where a reply is promised within the next few weeks.
It seems clear that by section 8 the legislator foresaw that, in certain cases, technicalities which were too inflexible might prevent the Act from attaining its objectives, and thus gave the Minister complete discretion to avoid unfair situations, a discretion existing in all but two cases: where a deportation order has been issued, and where an appeal has been dismissed by the Appeal Board. Such discretion is surely "unfettered"*, since it is almost without limit.
It is true that if the Special Inquiry Officer concluded that applicant could be admitted, the Minister would not have to exercise his discretion. In the case at bar, however, an application was made to the Minister under section 8, and the only answer received, other than a vague acknowledg ment of receipt implying that applicant's letter was a request for information, was a summons to appear before a Special Inquiry Officer; and now the Minister may not be able to exercise his discre tion. The Special Inquiry Officer certainly does not have the power to act in such a manner as to deprive the Minister of an exclusive right con ferred on him by the Act.
An analogy can easily be made between the case at bar and another very recent case in the Supreme Court, a unanimous decision dated November 23, 1977 and written by Pratte J.: Ramawad v. Minis ter of Manpower and Immigration [ 1978] 2 S.C.R. 375.
The question was whether the Special Inquiry Officer had the right to disregard the discretion conferred on the Minister under section 3G(d) of the Immigration Regulations to rule as to the "existence of special circumstances", and conse quently, whether the deportation order issued was
* In English in original—TR.
valid. It was unanimously held that the deporta tion order was invalid.
In Ramawad, a deportation order had been issued; in Laneau, a deportation order may be issued. In Ramawad, the discretion as to whether special circumstances existed was conferred by the Regulations; in Laneau, the discretion is the power conferred by section 8 of the Act. In Ramawad, the order prevented the Minister from exercising his discretion under section 8; in Laneau, the Special Inquiry Officer, in spite of the application for a permit pursuant to the Minister's discretion under section 8, could prevent the Minister from exercising this discretion by issuing a deportation order. In Ramawad, the deportation order was invalidated; in Laneau, the inquiry could be adjourned. These points will explain the long extracts from the judgment in Ramawad.
At page 377, the following remarks are made concerning the inquiry:
The Special Inquiry Officer held an inquiry under s. 23(2) of the Act. At the conclusion of the hearing on October 8, 1975, the Special Inquiry Officer determined that the appellant could not be allowed to stay in Canada; in the course of his decision, he stated that the appellant could not be issued an employment visa because he had violated within the previous two years one of the conditions of the visa issued to him on July 27, 1974, when he had changed employer without the authorization of an immigration officer.
I cite this extract to stress the fact that the case involved nothing more than an unauthorized change of employment.
With respect to the authority and discretion under the Immigration Act, Pratte J. states at pages 381 and 382:
In the Immigration Act, Parliament has recognized the existence of different levels of authority, namely, the Governor in Council, the Minister, the Director, the Immigration Officer in charge, the Special Inquiry Officer and the Immigration Officer. The authority granted by Parliament to each of such levels is clearly specified in the Act. In some cases, the Act allows for a sharing of authority as between some of these levels. For instance, under s. 12, a peace officer is obligated to carry out any warrant issued under the Act for the arrest, detention or deportation of any person if "so directed by the Minister, Director, Special Inquiry Officer or an Immigration Officer". Also, s. 36(2) authorizes "the Minister, Director, a Special Inquiry Officer or an Immigration Officer" to give certain instructions with respect to the deportation of a person against whom a deportation order has been made.
Similarly, the regulations issued under the Act make a clear distinction between the authority conferred on the Minister on the one hand and on his officials on the other hand.
Indeed, in the Act and in the Regulations, the most impor tant functions have been reserved for the Minister's discretion while authority in other areas have been delegated directly to specified officials.
The general framework of the Act and of the Regulations is clear evidence of the intent of Parliament and of the Governor in Council that the discretionary power entrusted to the Minis ter be exercised by him rather than by his officials acting under the authority of an implied delegation, subject of course to any statutory provision to the contrary. To put it differently, the legislation here in question, because of the way it is framed and also possibly because of its subject matter, makes it impossible to say, as was the situation in Harrison*, that the power of the Minister to delegate is implicit; quite the contrary.
I am reinforced in my opinion on this point by s. 67 of the Act which reads as follows:
"The Minister may authorize the Deputy Minister or the Director to perform and exercise any of the duties, powers and functions that may be or are required to be performed or exercised by the Minister under this Act or the regulations and any such duty, power or function performed or exercised by the Deputy Minister or the Director under the au thority of the Minister shall be deemed to have been per formed or exercised by the Minister."
The effect of this section is, by necessary implication, to deny the Minister the right to delegate powers vested in him to persons not mentioned therein.
I therefore come to the conclusion that the discretion en trusted to the Minister under para. 3G(d) of the Regulations must be exercised by him or, if properly authorized to do so under s. 67, by one of the persons therein mentioned which do not include the Special Inquiry Officer who issued the deporta tion order here in question.
It follows that the decision made by the Special Inquiry Officer in this case to the effect that "there are no special circumstances in existence at the present time in order to apply para. 3G(d) of the Immigration Regulations as requested by counsel" is not and cannot be considered as a decision of the Minister; it is therefore invalid.
In the case at bar no deportation order has been issued, but it may be, and this risk exists at a time when an application has been made to the Minister for a permit. An officer should not begin a special inquiry if there has been recourse to the Minister's discretion before the special inquiry was begun, because the results of this inquiry could nullify the exercise of the Minister's discretion.
* The Queen v. Harrison [1977] 1 S.C.R. 238.
With respect to the right to have recourse to the Minister, the following appears at pages 382 and 383:
But is the deportation order vitiated by the invalidity of the decision of the Special Inquiry Officer under para. 3G(d) of the Regulations? I think so.
Under para. 3G(d), the appellant was entitled to have the Minister rule as to the "existence 'of special circumstances"; this was a substantive right of the appellant which flowed to him directly from the Regulations and which the Special Inquiry Officer had no authority to abrogate whether directly or indirectly.
In purporting to exercise the Minister's authority under para. 3G(d) of the Regulations and in proceeding immediately there after to issue a deportation order against the appellant, the Special Inquiry Officer effectively denied the appellant his right to have the Minister decide whether the special circum stances envisaged in para. 3G(d) existed. Indeed, once a depor tation order had been issued, the Minister was by law precluded from exercising any discretion in the matter because of s. 8 of the Act which reads in part as follows:
"The Minister may issue a written permit authorizing any person to enter Canada or, being in Canada, to remain therein, other than
(a) a person under order of deportation who was not issued such a written permit before the 13th day of November 1967, ..."
In other words, when the deportation order had been issued, it was no longer possible for the Minister to prevent the appellant from being deported even if he felt that, "because of the existence of special circumstances", the application of para. 3D(2)(b) to the appellant should be waived; it must be noted that, had such a waiver been given prior to the deportation order being issued, the appellant would have qualified for an employment visa since the application of para. 3D(2)(b) was the only bar to the issue of such visa. This shows quite clearly that we are dealing here with matters of substance rather than of procedure.
In the case at bar, applicant has the right to the Minister's exercise of his discretion, as in Rama- wad. If the Special Inquiry Officer issues a depor tation order, as in Ramawad, applicant's right with respect to the Minister's exercise of his dis cretion will have been denied, and the order may be quashed.
With respect to the effect of the invalidity of the decision of the Special Inquiry Officer, the follow ing is stated at pages 383 and 384:
To hold that the invalidity of the decision of the Special Inquiry Officer as to the existence of special circumstances under para. 3G(d) has no effect on the validity of the deporta tion order would lead one to the untenable conclusion that a Special Inquiry Officer could, through an improper exercise of the Minister's authority under para. 3G(d), nullify the right of a non-immigrant under said paragraph by preventing the Min ister from exercising the discretion with which he was entrusted.
In my opinion, the following comments can also be applied to the case at bar, without any distinc tion being necessary (page 384):
In my view, the making of an application seeking the opinion of the Minister pursuant to para. 3G(d) has the effect of suspending the authority of the Special Inquiry Officer to issue a deportation order, and the only possible course of action for the Special Inquiry Officer under such circumstances is to adjourn making his decision until such time as the Minister has disposed of the application.
In the case at bar, an application for a permit was made, and although the Minister has not yet exercised his discretion under section 8 of the Act, a special inquiry was begun. If an application because of special circumstances filed pursuant to the Regulations can suspend the authority of the Special Inquiry Officer as long as the Minister's discretion has not been exercised, this should apply with even greater force in the case of an applica tion pursuant to the Act for a permit to be issued at the Minister's discretion.
In my opinion, the Act cannot be interpreted in the present circumstances other than as in Rama- wad. If different action is taken, the Special Inqui ry Officer could still prevent the Minister's discre tion from being exercised.
If discretion has been conferred on the Minister, it is so that he can exercise it, so that a non-immi grant may apply for a permit and the Minister may issue it in accordance with his discretion under section 8 of the Act. It would be exceptional for a Special Inquiry Officer to be able to deny this discretionary right to the Minister and to the non-immigrant.
Respondent is hereby prohibited from continu ing the inquiry regarding applicant until the Min ister has exercised his discretion, the whole with costs against respondent and the mis -en-cause.
ORDER
Respondent is prohibited from continuing the inquiry regarding applicant until the Minister has exercised his discretion, the whole with costs against respondent and the mis -en-cause.
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