A-229-81
Muhsin Engin Ergul (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
Court of Appeal, Pratte and Urie JJ. and Verchere
D.J.—Vancouver, October 5 and 9, 1981.
Judicial review — Immigration — Application to review
and set aside Adjudicator's decision to issue a departure notice
against the applicant — Applicant's claim to refugee status
was rejected — Inquiry resumed by an Adjudicator other than
the Adjudicator who presided at the adjourned inquiry —
Applicant objected on the ground that, as substantive evidence
had been adduced before the adjournment, the inquiry could
not, without applicant's consent, be resumed by a new
adjudicator pursuant to s. 35(3) of the Immigration Regula
tions, 1978 — Whether the inquiry was resumed under s. 46 of
the Immigration Act, 1976 — Whether s. 35(3) of the Regula
tions requires the applicant's consent to the resumption of the
inquiry by a new adjudicator — Immigration Act, 1976, S.C.
1976-77, c. 52, ss. 27, 45(1), 46(1),(2), 115(1) — Immigration
Regulations, 1978, SORl78-172, s. 35(3) — Federal Court
Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
Following a determination that the applicant was not a
Convention refugee, the inquiry held to determine whether he
had remained in the country without authorization after the
expiry of his visitor status was resumed by an Adjudicator
other than the Adjudicator who had presided at the adjourned
inquiry. Applicant objected to the change of Adjudicator and
argued that, as substantive evidence had been adduced before
the adjournment, the inquiry could not, without the applicant's
consent, be resumed by a new adjudicator pursuant to section
35(3) of the Immigration Regulations, 1978. The Adjudicator
rejected that contention on the ground that section 35(3) did
not apply to the resumption of an inquiry pursuant to section
46(1) of the Immigration Act, 1976, and issued a departure
notice against applicant. The issues are whether the inquiry was
adjourned pursuant to section 46 of the Act and whether
section 35(3) of the Regulations requires the applicant's con
sent to the resumption of the inquiry by a new adjudicator.
Held, the application is granted. If an adjudicator presiding
over an inquiry during which a claim to refugee status is made,
adjourns the inquiry prematurely, without having made the
determination required by section 45(1) of the Act, i.e. without
having determined whether a removal order should be made or
a departure notice issued, the inquiry is not, strictly speaking,
adjourned pursuant to section 45(1). And when that same
inquiry is later resumed, its resumption is not governed by
section 46(1) of the Act since the inquiry is not resumed for the
sole purpose mentioned in section 46(2), i.e. to make a removal
order or to issue a departure notice, but also for the purpose of
making the determination that should normally have been
made before the adjournment. It follows that in such a case,
section 35(3) of the Regulations applies and the inquiry cannot,
without the consent of the person concerned, be resumed by an
adjudicator other than the adjudicator who presided at the
commencement of the inquiry. In the present case, it is
common ground that the Adjudicator who commenced the
inquiry adjourned it immediately after finding that the allega
tions of the section 27 report were well founded without
determining whether a deportation order should be made or a
departure notice issued. The applicant's consent was therefore
needed.
APPLICATION for judicial review.
COUNSEL:
Dennis G. McCrea for applicant.
A. Louie for respondent.
SOLICITORS:
Rosenbloom, McCrea & Leggatt, Vancouver,
for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
delivered orally in English by
PRATTE J.: This section 28 application is direct
ed against the decision of an Adjudicator under
the Immigration Act, 1976, S.C. 1976-77, c. 52, to
issue a departure notice requiring the applicant to
leave Canada before midnight May 20, 1981.
The applicant, who comes from Turkey, entered
Canada as a visitor on December 12, 1978. Fol
lowing a report made pursuant to section 27 of the
Immigration Act, 1976, an inquiry was held to
determine whether he had remained in the country
without authorization after the expiry of his visitor
status. Early in the inquiry he claimed to be a
Convention refugee. The Adjudicator, as he was
required to do by subsection 45(1), nevertheless
continued the inquiry and determined that the
allegation contained in the section 27 report was
well founded. Having made this finding, he
adjourned the inquiry so that the applicant's claim
to refugee status be considered. That claim was
eventually rejected and the applicant was deter
mined not to be a Convention refugee. The inquiry
was then resumed by an Adjudicator other than
the Adjudicator who had presided at the adjourned
inquiry. At the resumption of the inquiry, counsel
for the applicant objected to this change of
Adjudicator. He invoked subsection 35(3) of the
Regulations [Immigration Regulations, 1978,
SOR/78-172] and argued that, as substantive evi
dence had been adduced before the adjournment,
the inquiry could not, without the applicant's con
sent, be resumed by a new adjudicator. The
Adjudicator rejected that contention and held that
subsection 35(3) of the Regulations does not apply
to the resumption of an inquiry pursuant to sub
section 46(1) of the Act. He pursued the inquiry
and, having reached the conclusion that this was
not a case where a deportation order ought to be
made, he issued the departure notice against which
this section 28 application is directed.
Of the various questions raised by counsel for
the applicant, only one, in my view needs to be
considered: did subsection 35(3) of the Regula
tions require the applicant's consent to the resump
tion of the inquiry by a new adjudicator?
The statutory provisions which are relevant to
that question are subsection 35(3) of the Regula
tions, subsection 45(1) and section 46 of the Act.
Subsection 35(3) of the Regulations reads as
follows:
35....
(3) When an inquiry has been adjourned pursuant to the Act
or these Regulations, it may be resumed by an adjudicator
other than the adjudicator who presided at the adjourned
inquiry with the consent of the person concerned or where no
substantive evidence has been adduced)
Subsection 45(1) and section 46 of the Act
contain the following provisions:
45. (1) Where, at any time during an inquiry, the person who
is the subject of the inquiry claims that he is a Convention
refugee, the inquiry shall be continued and, if it is determined
that, but for the person's claim that he is a Convention refugee,
a removal order or a departure notice would be made or issued
with respect to that person, the inquiry shall be adjourned and
that person shall be examined under oath by a senior immigra
tion officer respecting his claim.
' This Regulation was made pursuant to paragraph
115(1)(q) of the Act:
115. (1) The Governor in Council may make regulations
(q) establishing the procedures to be followed at an inquiry
and prescribing ... the circumstances in which an inquiry
that has been adjourned may be resumed by an adjudica
tor other than the adjudicator who presided at the
adjourned inquiry;
46. (1) Where a senior immigration officer is informed pur
suant to subsection 45(5) that a person is not a Convention
refugee, he shall, as soon as reasonably practicable, cause the
inquiry concerning that person to be resumed by the adjudica
tor who was presiding at the inquiry or by any other adjudica
tor, but no inquiry shall be resumed in any case where the
person makes an application to the Board pursuant to subsec
tion 70(1) for a redetermination of his claim that he is a
Convention refugee until such time as the Board informs the
Minister of its decision with respect thereto.
(2) Where a person
(a) has been determined by the Minister not to be a Conven
tion refugee and the time has expired within which an
application for a redetermination under subsection 70(1)
may be made, or
(b) has been determined by the Board not to be a Convention
refugee,
the adjudicator who presides at the inquiry caused to be
resumed pursuant to subsection (1) shall make the removal
order or issue the departure notice that would have been made
or issued but for that person's claim that he was a Convention
refugee.
It is clear, in my opinion, that subsection 35(3)
of the Regulations does not apply to the resump
tion of an inquiry pursuant to section 46 of the
Act. If it did, the result would be that the Regula
tion would make illegal a course of conduct
expressly authorized by the Act. This cannot be. A
regulation made by the Governor in Council
cannot amend the Act.
What is not so clear, however, is whether the
inquiry here in question was resumed pursuant to
section 46. If it was, it could be resumed before a
different adjudicator without the applicant's con
sent (subsection 46(1)), but if it was not, a differ
ent adjudicator could not, without the applicant's
consent, preside at the resumption of the inquiry
(subsection 35(3) of the Regulations).
Subsection 46(2) describes the duty of the
adjudicator at the resumption of an inquiry follow
ing an adjournment pursuant to subsection 45(1).
That duty is neither to make an investigation nor
to determine anything but, merely, to "make the
order or to issue the departure notice that would
have been made or issued" if the subject of the
inquiry had not claimed to be a refugee. Subsec
tion 46(2) does not require the adjudicator to do
anything more than that because, in the usual
course of events, that is all that remains to be done
to conclude the inquiry. When subsection 45(1) is
read with subsection 46(2) it clearly provides, in
my view, that the adjudicator presiding at the
commencement of the inquiry must, before
adjourning, not only find that the allegations of
the report made in respect of the subject of the
inquiry are well founded, but also determine
whether a removal order should be made or a
departure notice issued.
If an adjudicator presiding over an inquiry
during which a claim to refugee status is made,
adjourns the inquiry prematurely without having
made the determination required by subsection
45(1), the inquiry is not, strictly speaking,
adjourned pursuant to subsection 45(1). And when
that same inquiry is later resumed, its resumption
is not governed by subsection 46(1) since the
inquiry is not resumed for the sole purpose men
tioned in subsection 46(2) but also for the purpose
of making the determination that should normally
have been made before the adjournment. It follows
that in such a case, subsection 35(3) of the Regu
lations applies and the inquiry cannot, without the
consent of the person concerned, be resumed by an
adjudicator other than the adjudicator who presid
ed at the commencement of the inquiry.
In the present case, it is common ground that
the Adjudicator who commenced the inquiry
adjourned it immediately after finding that the
allegations of the section 27 report were well
founded without determining whether a deporta
tion order should be made or a departure notice be
issued. The inquiry, therefore, could not, without
the applicant's consent be resumed by a different
adjudicator.
For these reasons, I would grant this applica
tion, set aside the decision under attack and refer
the matter back to the appropriate senior immigra
tion officer who shall cause the inquiry concerning
the applicant to be resumed by the Adjudicator
who commenced it or, if this is not possible, cause
a new inquiry to be held.
* * *
URIE J. concurred.
* * *
VERCHERE D.J. concurred.
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.