T-1866-80
Satnam Samra (Applicant)
v.
Minister of Employment and Immigration,
Canada Employment and Immigration Commis
sion and Adjudications Directorate of the Canada
Immigration Commission (Respondents)
Trial Division, Walsh J.—Vancouver, April 14
and 17, 1980.
Prerogative writs — Motion for writ of prohibition —
Applicant filed an application, sponsored by his adoptive
sister, to remain in Canada — Application was rejected with
out immigration officer having considered the adoption docu
ment, which was apparently mislaid by immigration authori
ties — Immigration Appeal Board dismissed the subsequent
appeal without the adoption deed having been located, on the
assumption that the deed did not exist — Upon location of
deed, Board allowed application to reopen sponsorship appeal,
but hearing will not take place until after the hearing of an
inquiry into applicant's overstay in Canada, which could result
in a deportation order — Whether a writ of prohibition is the
appropriate procedure — Motion denied — Immigration Act,
1976, S.C. 1976-77, c. 52, s. 27(2)(e).
Kalicharan v. Minister of Manpower and Immigration
[1976] 2 F.C. 123, distinguished. Pratap v. Minister of
Employment and Immigration [1979] 1 F.C. 797, distin
guished. Laneau v. Rivard [1978] 2 F.C. 319, considered.
Martineau v. The Matsqui Institution Inmate Disciplinary
Board [1978] 1 S.C.R. 118, considered. In re the Immi
gration Act and in re Patrick Vincent McCarthy [1979] 1
F.C. 128, referred to. Douglas v. Minister of Manpower
and Immigration [1972] F.C. 1050, referred to. George v.
Minister of Manpower and Immigration (unreported,
T-123-77), referred to. Minister of Manpower and Immi
gration v. Tsakiris [1977] 2 F.C. 236, applied.
APPLICATION.
COUNSEL:
G. Goldstein for applicant.
G. Carruthers for respondents.
SOLICITORS:
Evans, Cantillon & Goldstein, Vancouver, for
applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for order ren
dered in English by
WALSH J.: The notice of motion herein, sup
ported by affidavits of applicant and of P. Ray
Cantillon, the attorney who represented him
before the Immigration Appeal Board indicates
that the facts are of an unusual nature. Applicant
was born in India on February 10, 1958, being the
natural son of Karnail Singh Samra and Parkash
Kaur Dhesi and in January 1965 at the age of 7
years he was allegedly adopted by his natural
grandmother Kishan Kaur Dhesi and Bawa Singh
Dhesi (since deceased). He lived with them in
India, his said natural grandmother being referred
to henceforth as his adoptive mother, who had
three daughters, one being his natural mother
Parkash Dhesi Samra, and another being his adop
tive sister Surinder Sandhu who immigrated to
Canada in 1968. Applicant arrived with his adop
tive mother on January 12, 1976 at the age of
nearly 18 and they have since resided in Vancou-
ver with his said adoptive sister.
On or about January 26, 1976 approximately 14
days after his arrival, his said adoptive sister
Surinder Sandhu filed a sponsored application on
his behalf, which application remained under con
sideration for an extraordinary lengthy time before
being finally rejected on February 22, 1978 with
out the immigration officer having considered the
adoption document which had been delivered to
the Canada Immigration Centre in Vancouver on
April 9, 1976 at their request for verification by
the Canadian High Commission in New Delhi.
This was a proper step, but the subsequent delays
appear, in the absence of explanation to be inex
cusable for the document was apparently not
returned to the Immigration Centre in Vancouver
for over two years until July 1978, some five
months after the sponsored application was reject
ed, despite the fact that this document was obvi
ously pertinent and important. It was not until
another 14 months that the document was
returned to his family in September 1979.
Following the rejection, his adoptive sister
Surinder Sandhu immediately appealed to the
Immigration Appeal Board which heard the
appeal on May 24, 1979 without the adoption deed
having been located and placed before it, despite
efforts made by applicant and his family. On
September 18, 1979 the appeal was dismissed
allegedly on the assumption that the deed did not
exist. When the deed was finally returned to appli
cant's family at the end of September 1979, an
application was made to reopen the sponsorship
appeal which application was heard on March 21,
1980 and on March 25, 1980 the Board allowed
the motion to reopen the appeal in order to consid
er the deed of adoption. The matter is therefore
finally before it and applicant is hopeful of a
hearing, if not in May, then in June, 1980 when
the Board will sit in Vancouver.
Somewhat inexplicably under the circumstances
a report under section 27(2)(e) of the Immigration
Act, 1976, S.C. 1976-77, c. 52 was written up on
applicant on February 12, 1980 on the basis of his
overstay in Canada as a consequence of his having
entered Canada allegedly as a visitor on January
12, 1976, being authorized to stay only until Feb-
ruary 7, 1980. On March 12, the inquiry com
menced before Adjudicator R. G. Smith, was con
tinued on March 27 at which time evidence was
taken and was then adjourned to April 21, 1980.
On March 27 it was known that on March 25 the
Immigration Appeal Board had authorized the
reopening of the appeal on the sponsored applica
tion, but despite this, the said Adjudication Officer
pressed on with the hearing. If the appeal is even
tually allowed, after a proper consideration, appar
ently for the first time, of the deed of adoption, the
effect would be that applicant would be deemed to
have been a member of the family class as of
January 26, 1976 when he entered Canada and
should not be deported. In fact a deportation
before the hearing would gravely prejudice appli
cant and his adoptive sister in the appeal of the
sponsored application as he would not even be
available to testify at the hearing.
While it is true that it cannot be definitely
stated that a further adjournment of the section 27
hearing before the Adjudication Officer will not be
granted on April 21, or that it will result in a
deportation order, it appears highly probable that
this will be so. If this were not the case, it is
unlikely that at the hearing of the present applica
tion for a writ of prohibition, counsel for the
Minister would have been instructed to contest
same and not undertake that the hearing before
the Adjudicator on April 21, 1980 would not be
continued until the Immigration Appeal Board has
ruled on the appeal pending before it on the spon
sored application, which undertaking would have
rendered the present application unnecessary.
There is no explanation why, after permitting
applicant to remain since January 1976, there
should suddenly be what appears to be unseemly
haste in seeking a deportation now, when the
question of his remaining in Canada as a spon
sored relative is about to be decided at an early
date by the Appeal Board. All the delays in the
interval, are, if the facts in the record before the
Court are correct, entirely due to administrative
delays, or mislaying the very important deed of
adoption, and in no way attributable to applicant.
A serious question arises, however, as to whether
a writ of prohibition is the appropriate procedure,
or whether it is not premature to assume that the
Adjudication Officer will refuse a further adjourn
ment on April 21, 1980 and will order deportation.
Counsel for applicant relies inter alia on the
cases of Kalicharan v. Minister of Manpower and
Immigration [1976] 2 F.C. 123 and Pratap v.
Minister of Employment and Immigration [1979]
1 F.C. 797 where writs of prohibition were issued
but in both cases a deportation order had already
been made. In the case of Laneau v. Rivard [1978]
2 F.C. 319 a prohibition was issued, however, to
prevent the continuation of an inquiry where an
application had already been made to the Minister
for a permit to remain in Canada under section 8
of the former Act, on the ground that the Minis
ter's powers under section 8 would become nugato-
ry if the Special Inquiry Officer subsequently
made a deportation order. There is a close analogy
here in that section 79(4) of the present Act states
that when a sponsored appeal has been allowed by
the Immigration Appeal Board the Minister
"shall" cause the review of the application to be
made by an immigration or visa officer, and the
application "shall" be approved, provided the
other requirements of the Act and Regulations are
complied with. Finally applicant relies on the
Supreme Court case of Martineau v. The Matsqui
Institution Inmate Disciplinary Board, now
reported in [1978] 1 S.C.R. 118 with respect to
the duty to act fairly even in decisions not to be
made on a judicial or quasi-judicial basis. There
would seem to be considerable doubt as to the
fairness of seeking to proceed with a section 27
inquiry leading to deportation just at the time
when, after long delays brought about by the
Immigration Department itself, the Immigration
Appeal Board is about to deal, in full possession of
the facts with the sponsored application by appli
cant's adoptive sister, which if successful would
result in his legal admission unless there is some
reason, not disclosed in the record before the
Court, as to why he should not be so admitted.
On the other hand counsel for respondents relies
on convincing jurisprudence to establish that
prohibition is not the appropriate remedy. In the
case of In re the Immigration Act and in re
Patrick Vincent McCarthy [1979] 1 F.C. 128,
Cattanach J. at page 130 held that an inquiry
under the Act was administrative and not judicial
or quasi-judicial, and accordingly, a prerogative
writ such as prohibition will not issue to preclude
administrative or discretionary powers. In the case
of Minister of Manpower and Immigration v.
Tsakiris [1977] 2 F.C. 236 at page 238, Pratte J.
in rendering the judgment of the Federal Court of
Appeal remarked that "Prohibition lies to prevent
an inferior tribunal from exceeding its jurisdiction;
it must not, therefore, be mistaken for an injunc
tion or a mere stay of proceedings". In that case it
was held that the making of a sponsorship applica
tion did not deprive the Special Inquiry Officer of
the power to hold an immediate inquiry when a
report calling upon him to do so is made.
In the case of Douglas v. Minister of Manpower
and Immigration [1972] F.C. 1050, it was held
that, even if conviction for a criminal offence is
not, pending an appeal, a ground for deportation,
the appeal cannot lead to the issue of a writ of
prohibition to stop an inquiry seeking deportation.
The Court found [at page 1052] that no grounds
had been put forward as to why the inquiry should
not proceed, and that "the proper procedure is to
put such arguments as were made this morning
before such officer and, if necessary, proceed by
way of appeal from his decision, if it is adverse".
(Under the new Act there is no provision for an
appeal from such an order but I do not believe that
in itself would justify the issue of a writ of prohibi
tion to prevent a decision from being made by the
Adjudicator.) This judgment was referred to and
followed by me in the unreported case of George v.
Minister of Manpower and Immigration T-123-77
dated January 25, 1977 in which I stated "the
arguments made before me for seeking to delay
the deportation can be made, if not officially in the
course of an inquiry, nevertheless by proper
representation to the appropriate authorities seek
ing to have them exercise their discretion to delay
the execution of the deportation order." Prohibi
tion or injunction had been sought against a depor
tation order when applicant had to be in Canada
to defend herself against charges laid under the
Criminal Code, R.S.C. 1970, c. C-34 as amended.
The writ of prohibition sought in the present
application will therefore not be issued, but in the
event that the Adjudicator insists on continuing
with the inquiry on April 21, 1980 despite the
cogent arguments put forward justifying the delay
of same until after the decision of the Immigration
Appeal Board on the sponsored application, and if,
as a result, deportation is ordered, applicant may
then take whatever further proceedings seem
appropriate to delay the execution of same.
Under the circumstances the present application
will be dismissed without costs.
ORDER
Application for writ of prohibition is dismissed
without costs.
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