A-600-80
Veronica Satchwell (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
Court of Appeal, Heald and Urie JJ. and MacKay
D.J.—Toronto, October 28, 1980.
Judicial review — Immigration — Application to review
and set aside Adjudicator's dismissal of application pursuant
to s. 35 of Immigration Act, 1976 — Whether Adjudicator
erred in refusing to reopen the inquiry on the sole basis that
applicant had returned to Jamaica and was, therefore, no
longer a person seeking admission to Canada — Appeal
allowed — Immigration Act, 1976, S.C. 1976-77, c. 52, ss.
32(5), 35(1), 57(2) — Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, s. 28.
APPLICATION for judicial review.
COUNSEL:
M. J. Clarke for applicant.
Tom James for respondent.
SOLICITORS:
M. J. Clarke, Toronto, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment of
the Court delivered orally in English by
HEALD J.: We are all of the view that the
Adjudicator was in error in refusing to reopen the
inquiry on the sole basis that the applicant had
returned to Jamaica and was, therefore, no longer
a person seeking admission to Canada. Subsection
35(1) of the Immigration Act, 1976, S.C. 1976-77,
c. 52, empowered this Adjudicator, after the issu
ance of the exclusion order, to reopen the inquiry
for the hearing and receiving of additional evi
dence and testimony. The exclusion order in ques
tion was made under the authority of subsection
32(5) of the Act. That subsection empowers an
Adjudicator to make an exclusion order in the
circumstances of this case in respect of a person
"who, at the time of his examination, was seeking
admission ...." This applicant was, at the time of
her examination in the inquiry, clearly a person
seeking admission. In our view, she continues to be
a person so qualified for the purposes of reopening
under subsection 35(1). Accordingly, it is our
opinion that the Adjudicator erred in law in decid
ing that the applicant was no longer qualified to
apply for a reopening if that was the substance of
his reason for refusing to reopen. If, on the other
hand, the Adjudicator accepted the applicant's
status to reopen, he then erred in stating that "no
useful purpose could be served" by reopening. At
the present time the applicant has a removal order
extant against her. Pursuant to subsection 57(2)
she cannot return to Canada without the Minis
ter's consent for a 12-month period immediately
following the day on which she left Canada. If a
reopening of the inquiry were allowed and the
proposed new evidence admitted, and in the fur
ther event that the Adjudicator were to admit her
to Canada following that reopened inquiry, she
would, of course, no longer be subject to the
strictures of subsection 57(2).
For these reasons, the section 28 application is
allowed. The Adjudicator's refusal to reopen dated
August 21, 1980 is set aside and the matter is
referred back to an Adjudicator for decision on the
basis that the circumstance that the applicant has
returned to Jamaica is not one of the proper
circumstances to be considered when making the
decision whether or not to reopen under subsection
35(1).
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.