T-856-74
Mohammed Sadique (Applicant)
v.
Minister of Manpower and Immigration and N.
C. Beaton (Respondents)
Trial Division, Cowan D.J.—Halifax, February
26, 1974.
Immigration—Deportation order—Application to Trial
Division for habeas corpus, certiorari and prohibition—
Order of Special Inquiry Officer made within jurisdiction and
not subject to certiorari and prohibition—Trial Division has
no jurisdiction re habeas corpus Application for judicial
review proper proceeding—Jurisdiction vested in Court of
Appeal—Immigration Act, R.S.C. 1970, c. I-2, ss. 7, 22-24,
26, 27—Federal Court Act, ss. 18, 28—Immigration Appeal
Board Act, R.S.C. 1970, c. 1-3, s. 11, amended S.C. 1973-
74, c. 27, s. 5.
APPLICATION.
COUNSEL:
Whiholele Mundebah for applicant.
J. M. Bentley and D. Richard for
respondents.
SOLICITORS:
Kelsie and Mundebah, Halifax, for
applicant.
Attorney General of Canada for respond
ents.
The following are the reasons for judgment
delivered in English by
COWAN DJ.: This is an application on behalf
of Mohammed Sadique, a person detained in the
Halifax Correctional Centre in the County of
Halifax, Nova Scotia, for various forms of
relief, including issue of a writ of habeas corpus
and a writ of certiorari in aid and a writ of
prohibition. The notice of application is dated
February 25, 1974, and there is also an applica
tion to abridge the time for setting down, the
notice of motion with respect to this being dated
February 26, 1974.
The notice of the application for the relief
requested was served on February 25, 1974.
Rule 321 of the General Rules and Orders of
the Federal Court of Canada provides, by sub
section (2) as follows:
Rule 321. (2) Unless the Court gives special leave to the
contrary, there must be at least 2 clear days between the
service of a notice of motion and the day named in the
notice for hearing the motion.
Counsel for the respondents appeared and
objected to the granting of the application to
abridge the time required and to the giving of
special leave to the contrary. I reserved decision
on this point and permitted counsel for the
applicant to present his case, on the understand
ing that if counsel for the respondents required
further time for answering the case for the
applicant, such request would be granted.
There was filed on behalf of the applicant, his
own affidavit to the effect that he is a citizen of
the Republic of Pakistan; that on or about Feb-
ruary 15, 1974, he applied to enter Canada
under section 7(c) of the Immigration Act,
R.S.C. 1970, c. I-2; that he is presently being
held in the custody of Keith Hall, the superin
tendent of the Halifax Correctional Centre,
Halifax County, Nova Scotia; that, at all ma
terial times, he has been seeking permission to
enter Canada for a period of at least three
weeks, after which he would depart and return
to his homeland; that on or about February 21,
1974, he was adjudged to be detained and thus
deported; that he is a bona fide visitor and has
sufficient means and funds to support himself
for the period of three weeks referred to above,
and that, produced as an exhibit to his affidavit,
is a true copy of an order made by N. C.
Beaton, a Special Inquiry Officer, dated Febru-
ary 22, 1974, ordering that the applicant be
detained forthwith for deportation under the
provisions of the Immigration Act.
It was established that the applicant arrived at
Halifax International Airport by air on February
15, 1974, and an Immigration officer at the
Airport, acting under section 22 of the Immigra
tion Act, caused the applicant to be detained
and reported him to a Special Inquiry Officer,
N. C. Beaton, who then conducted an inquiry,
as authorized by section 23(2) of the Act. Sec
tion 26(2) of the Act provides that:
26. (2) The person concerned, if he so desires and at his
own expense, has the right to obtain and be represented by
counsel at his hearing.
The applicant sought And retained counsel on
February 21, 1974, and speaks only Urdu. An
interpreter was made available to him and was
present on February 21, 1974. A hearing was
held on that day and. the Special Inquiry Officer
reserved decision and delivered his decision on
February 22, 1974.
Section 27 of the Act provides as follows:
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(1Xa),(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
rendering 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
subsequent report under section 18 or pursuant to
section 24.
In my opinion, it is quite clear that the rele
vant question in this case is as to whether or not
the applicant, being a person seeking admission
to Canada, is or is not a member of a prohibited
class. Section 5 of the Act provides that:
5. No person, other than a person referred to in subsec
tion 7(2) shall be admitted to Canada if he is a member of
any of the following classes of persons:
One of the classes of persons referred to in
the section is as follows:
(p) persons who are not, in the opinion of a Special
Inquiry Officer, bona fide immigrants or non-immigrants;
Section 7 of the Act provides that certain
persons may be allowed to enter and remain in
Canada as non-immigrants, including "tourists
or visitors" and section 7(2) provides that cer
tain persons may be allowed to enter and remain
in Canada as non-immigrants, including "hold-
ers of a permit".
It has been established to my satisfaction that
the applicant is not the holder of a permit to
enter and remain in Canada as a non-immigrant,
and the question which the Special Inquiry Offi
cer had to determine, therefore, was whether or
not the applicant was a tourist or visitor and,
therefore, a bona fide non-immigrant.
As indicated above, the Special Inquiry Offi
cer is authorized, by section 26(3) of the Act to
receive and base his decision upon evidence
considered credible or trustworthy by him, in
the circumstances of each case and, since the
inquiry relates to a person seeking to come into
Canada, the burden of proving that he is not
prohibited from coming into Canada rests upon
the applicant, pursuant to the provisions of sec
tion 26(4). N. C. Beaton, the Special Inquiry
Officer, made an order dated February 22,
1974, pursuant to the provisions of section
27(3) of the Act, stating that:
On the basis of the evidence adduced at the enquiry held
at the Canada Immigration Centre, 5221 Harvey Street,
Halifax, Nova Scotia, February 20, 21 & 22, 1974, I have
reached the decision that you may not come into or remain
in Canada as of right, in that
(i) you are not a Canadian citizen;
(ii) you are not a person having Canadian domicile;
(iii) you are a member of the prohibited class of persons
as described in paragraph 5(p) of the Immigration Act, in
that, in my opinion, you are not a bona fide,
non-immigrant.
The order then stated:
I hereby order you to be detained and to be deported.
It therefore appears, on the face of the depor
tation order, that the Special Inquiry Officer
had decided that the applicant was a person who
was a member of a prohibited class, i.e. that he
was not a bona fide, non-immigrant. The Special
Inquiry Officer had the right and duty to make
this decision and, in reaching this decision, he
was discharging the duties placed upon him
under the Immigration Act and was, therefore,
in my opinion, acting within his jurisdiction.
Even if the Special Inquiry Officer was still
conducting the hearing under section 24 of the
Immigration Act, which is not the case, the
issue of a writ of prohibition would not be the
proper remedy since such a writ is only issued
to restrain an official, such as the Special Inqui
ry Officer, from acting in excess of his jurisdic
tion. Since the inquiry has been concluded, a
writ of prohibition is not appropriate, in any
event.
Similarly, no writ of certiorari should issue in
the present case. Such a writ should only be
issued if the deportation order was made with
out jurisdiction, i.e. if the Act did not give the
Special Inquiry Officer jurisdiction to do what
he did, or if he exceeded his jurisdiction in some
way. There is nothing on the record to show any
excess of jurisdiction.
It was submitted on behalf of the applicant
that the Special Inquiry Officer should have
accepted the evidence of the applicant, in the
absence of any evidence to the contrary. That
argument is not tenable and I accept the argu
ment on behalf of the respondents, to the effect
that the burden of proof that he is not prohib
ited from coming into Canada rests upon the
applicant.
It was also submitted on behalf of the appli
cant that the Special Inquiry Officer was biased,
in that he had a preconceived notion as to the
character of the applicant. There is no evidence
before me as to the existence of any such bias,
or as to the likelihood that bias existed, and I
find that this argument is not well-founded.
It was also submitted on behalf of the appli
cant that the question of bona fides was a ques
tion of law and not a question of fact. In my
opinion, it is a question of fact and I have no
right, in the circumstances, to review the deci
sion of the Special Inquiry Officer on this point.
Section 18 of the Federal Court Act, R.S.C.
1970, c. 10 (2nd Supp.) provides as follows:
18. The Trial Division has exclusive original jurisdiction
(a) to issue an injunction, writ of certiorari, writ of
prohibition, writ of mandamus or writ of quo warranto, or
grant declaratory relief, against any federal board, com
mission or other tribunal; and
(b) to hear and determine any application or other pro
ceeding for relief in the nature of relief contemplated by
paragraph (a), including any proceeding brought against
the Attorney General of Canada, to obtain relief against a
federal board, commission or other tribunal.
It seems quite clear, first of all, that the Trial
Division of the Federal Court has no jurisdic
tion to issue a writ of habeas corpus. There
seems to be a good deal of doubt whether power
to issue a writ of habeas corpus has been con
ferred upon the Federal Court at all. In any
event, it is quite clear that there is no power in
the Trial Division of the Court to issue a writ of
habeas corpus.
Section 28 of the Federal Court Act provides,
in part, as follows:
28. (1) Notwithstanding section 18 or the provisions of
any other Act, the Court of Appeal has jurisdiction to hear
and determine an application to review and set aside a
decision or order, other than a decision or order of an
administrative nature not required by law to be made on a
judicial or quasi-judicial basis, made by or in the course of
proceedings before a federal board, commission or other
tribunal, upon the ground that the board, commission or
tribunal
(a) failed to observe a principle of natural justice or
otherwise acted beyond or refused to exercise its
jurisdiction;
(b) erred in law in making its decision or order, whether or
not the error appears on the face of the record; or
(c) based its decision or order on an erroneous finding of
fact that it made in a perverse or capricious manner or
without regard for the material before it.
(3) Where the Court of Appeal has jurisdiction under this
section to hear and determine an application to review and
set aside a decision or order, the Trial Division has no
jurisdiction to entertain any proceeding in respect of that
decision or order.
If it is sought in this application to review and
set aside the decision or order of the Special
Inquiry Officer, dated February 22, 1974, it is
quite clear that the jurisdiction to hear and
determine such an application is vested in the
Court of Appeal of the Federal Court, and that
the Trial Division of the Federal Court has no
jurisdiction to entertain any proceeding in
respect of that decision or order. It seems to me
that the decision and order in question in this
proceeding is a decision and order required by
law to be made on a judicial or quasi-judicial
basis and is made in the course of proceedings
before a federal tribunal. It follows, therefore,
that any application to review and set aside the
decision or the order should have been made to
the Court of Appeal, and not to me as a judge of
the Trial Division of the Federal Court.
Section 11(1) of the Immigration Appeal
Board Act, R.S.C. 1970, c. I-3 as amended by
S.C. 1973-74, c. 27, section 5, provides as
follows:
11. (1) Subject to subsections (2) and (3), a person against
whom an order of deportation is made under the Immigra
tion Act may appeal to the Board on any ground of appeal
that involves a question of law or fact or mixed law and
fact, if, at the time that the order of deportation is made
against him, he is
(a) a permanent resident;
(6) a person seeking admission to Canada as an immigrant
or non-immigrant (other than a person who is deemed by
subsection 7(3) of the Immigration Act to be seeking
admission to Canada) who at the time that the report with
respect to him was made by an immigration officer pursu
ant to section 22 of the Immigration Act was in posses
sion of a valid immigrant visa or non-immigrant visa, as
the case may be, issued to him outside Canada by an
immigration officer;
(c) a person who claims he is a refugee protected by the
Convention; or
(d) a person who claims that he is a Canadian citizen.
It is apparent that the applicant does not fall
within any of the classes of cases where a right
of appeal exists under section 11 of the Immi
gration Appeal Board Act.
I have, therefore, come to the conclusion that
I cannot grant the relief requested. In the cir
cumstances, the counsel for the respondents
does not object to granting leave under Rule
321(2) of the General Rules and Orders of the
Federal Court of Canada to abridge the time for
giving notice of motion. The order abridging the
time is, therefore, granted but the application
for relief is refused.
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.