T-5145-82
Zwi Awraham Brenner (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
Trial Division, Mahoney J.—Toronto, July 14;
Ottawa, July 15, 1982.
Judicial review — Prerogative writs — Mandamus —
Immigration — Application for writ of mandamus requiring
Adjudicator to consider application for grant of entry under s.
19(3) of the Act which provides Adjudicator with discretionary
power to grant entry to person who is member of inadmissible
class under s. 19(2) — Inquiry held as result of report filed in
respect of applicant under s. 27(2)(a) and (g) — At inquiry
Adjudicator found applicant came within terms of s. 27(2)(a);
a person who would not be granted entry to Canada by reason
of being member of inadmissible class under s. 19(2)(a)(ii) —
Adjudicator refusing to consider application for want of juris
diction — Application dismissed — Immigration Act, 1976,
S.C. 1976-77, c. 52, ss. 2(1), 19(2),(3), 27(2), 32(4),(6).
APPLICATION.
COUNSEL:
M. Pacheco for applicant.
R. Levine 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.: In the course of an inquiry direct
ed under section 27 of the Immigration Act, 1976,
S.C. 1976-77, c. 52 the Adjudicator determined
that the applicant was a person described in para
graphs 27(2)(a) and (g). The finding that he was a
person described in paragraph 27(2)(a) included a
finding that he would, if applying for admission to
Canada, be inadmissible as a member of the class
described in subparagraph 19(2)(a)(ii). The appli
cant then applied to the Adjudicator for a grant of
entry under subsection 19(3). The Adjudicator
decided that she had no jurisdiction to entertain
that application. The applicant now seeks a writ of
mandamus requiring the Adjudicator to consider
the application under subsection 19(3).
The discretion under subsection 19(3) is to
permit a person who could not be admitted or
landed as an immigrant to be admitted or enter
Canada as a visitor.
2. (1) In this Act,
"admission" means entry or landing;
"entry" means lawful permission to come into Canada as a
visitor;
19....
(3) A senior immigration officer or an adjudicator, as the
case may be, may grant entry to any person who is a member of
an inadmissible class described in subsection (2) subject to such
terms and conditions as he deems appropriate and for a period
not exceeding thirty days, where, in his opinion, the purpose for
which entry is sought justifies admission.
An adjudicator may have occasion, in the case
of a person found to fall within the terms of
subsection 32(4), to grant that person entry under
subsection 19(3). However, where, as here, the
adjudicator's decision brings the person within
subsection 32(6), the adjudicator's discretion does
not include the option to grant that person entry
under subsection 19(3).
32....
(4) Where an adjudicator decides that a person who is the
subject of an inquiry is a person who, at the time of his
examination, was seeking entry and that it would not be
contrary to any provision of this Act or the regulations to grant
entry to that person, he may grant entry to that person and,
except in the case of a person who may be granted entry
pursuant to subsection 19(3), impose terms and conditions of a
prescribed nature.
(6) Where an adjudicator decides that a person who is the
subject of an inquiry is a person described in subsection 27(2),
he shall, subject to subsections 45(1) and 47(3), make a
deportation order against the person unless, in the case of a
person other than a person described in paragraph 19(1)(c),
(d), (e), (f) or (g) or 27(2)(c), (h) or (i), he is satisfied that
(a) having regard to all the circumstances of the case, a
deportation order ought not to be made against the person,
and
(b) the person will leave Canada on or before a date specified
by the adjudicator,
in which case he shall issue a departure notice to the person
specifying therein the date on or before which the person is
required to leave Canada.
In the particular circumstances, the refugee status
contemplated by subsections 45(1) and 47(3) not
being in issue, the Adjudicator's discretion lay only
between making a deportation order or issuing a
departure notice. She was correct in her determi
nation that she had no jurisdiction to entertain an
application for entry under subsection 19(3).
The application was dismissed with costs from
the bench. Brief written reasons were promised.
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.