T-169-84
Critty Jairaj (Applicant)
v.
R. G. Smith, Adjudicator and Minister of
Employment and Immigration (Respondents)
Trial Division, Addy J.—Vancouver, January 30
and 31, 1984.
Immigration — Practice — Minister deciding applicant not
Convention refugee — Immigration Appeal Board refusing s.
70 application for redetermination of status pursuant to s.
71(1) Immigration Act, 1976 — S. 28 application to review
Board's decision pending before Federal Court of Appeal —
Senior immigration officer ordering resumption of inquiry —
Applicant seeking prohibition — Relying on Gill v. Minister of
Employment and Immigration, [1983j 2 F.C. 815 (C.A.) for
argument inquiry cannot be resumed while Board's decision
subject of review application by Federal Court — Although
inquiry in Gill not resumed until after decision in Court of
Appeal, nowhere in decision statement that inquiry must not
proceed once Board determines applicant not Convention
refugee — Statutory duty under s. 46(1) to resume inquiry as
soon "as reasonably practicable" once senior immigration
officer informed applicant not Convention refugee — Board's
decision on status final in so far as Immigration Act, 1976
concerned — Act not requiring adjournment pending hearing
by Federal Court — Prohibition must be based on clear legal
right to remedy — Prohibition denied — Immigration Act,
1976, S.C. 1976-77, c. 52, ss. 46(1),(2)(b), 70, 71(1).
CASE JUDICIALLY CONSIDERED
CONSIDERED:
Gill v. Minister of Employment and Immigration, [ 1983]
2 F.C. 815 (C.A.).
COUNSEL:
Andrew Z. Wlodyka for applicant.
Cindy Roth for respondents.
SOLICITORS:
Shrimpton & Wlodyka, Vancouver, for
applicant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for order ren
dered in English by
ADDY J.: UPON motion dated the 25th day of
January, 1984 on behalf of the applicant for an
order to show cause why a writ of prohibition
should not issue and for other relief as set out in
the notice of motion,
REASONS FOR ORDER
A decision was made by the Minister that the
applicant was not a Convention refugee. The latter
then made an application pursuant to section 70
[of the Immigration Act, 1976, S.C. 1976-77, c.
52] for redetermination of his claim to be allowed
Convention refugee status. The Immigration
Appeal Board, pursuant to subsection 71(1)
refused to allow his application for redetermina-
tion of his status. There is presently pending before
the Federal Court of Appeal an application under
section 28 of the Federal Court Act [R.S.C. 1970
(2nd Supp.), c. 10] on behalf of the applicant to
set aside the last-mentioned decision.
Following the decision of the Immigration
Appeal Board, and notwithstanding the pending
application for review before the Federal Court of
Appeal, a senior immigration officer has ordered,
pursuant to subsection 46(1) that the inquiry
before the Adjudicator be resumed.
The applicant is requesting that the Adjudicator
be prohibited from proceeding with the inquiry,
which is scheduled for resumption on the 1st Feb-
ruary, 1984. He argues that the recent decision of
the Court of Appeal in the case of Gill v. Minister
of Employment and Immigration ([1983] 2 F.C.
815) is authority for the proposition that as long as
the determination of the Board under paragraph
46(2) (b) is the subject of an application for review
before the Federal Court of Appeal under section
28 of the Federal Court Act, the inquiry cannot be
resumed.
I have read the reasons for judgment of Mr.
Justice Heald in the Gill case (concurred in by the
other two members of the Court) most carefully
and I disagree with counsel for the applicant's
interpretation of those reasons. Although it is true
that in fact the inquiry was not resumed until after
the decision of the Court of Appeal, nowhere in
the decision is there any statement that at law the
inquiry must not be proceeded with once it has
been finally determined by the Board, pursuant to
paragraph 46(2)(b), that the applicant is not a
Convention refugee. On the contrary, there is a
statutory duty under subsection 46(1) to see that
the inquiry is resumed as soon "as reasonably
practicable" once the senior immigration officer
has been informed that the applicant is not a
Convention refugee. The application for redetermi-
nation under subsection 70(1) was unsuccessful
and the senior immigration officer was informed
by the Immigration Appeal Board that the appli
cant was not a Convention refugee. This constitut
ed a final decision on that issue in so far as the
Immigration Act, 1976 is concerned. There is
nothing in the Act which says that an inquiry is to
be adjourned or delayed pending the hearing of the
application before the Federal Court of Canada.
Prohibition must be based on a clear, legal right to
the remedy.
ORDER
The motion is dismissed with costs.
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.