T-757-85
In the Matter of the Immigration Act, 1976
And in the Matter of an Appeal by Baldev S.
Kahlon to the Immigration Appeal Board, Pursu
ant to the Immigration Act, 1976
And in the Matter of Inder Singh Kahlon, Mohin-
der Kaur Kahlon and Parminderjit Kaur Kahlon
Trial Division, McNair J.—Vancouver, April 22;
Ottawa, August 29, 1985.
Bill of Rights — Fair hearing — Family members denied
visitors' visas as deemed not bona fide visitors — Seeking
entry to Canada to testify before Immigration Appeal Board
re: refusal of applications for permanent resident status —
Issue on appeal credibility — Board's Rules permitting parties
to call witnesses — Denial of visas contrary to s. 2(e) of Bill of
Rights, prohibiting construction of laws so as to deprive person
of fair hearing — Applicant denied opportunity of procedural
redress of adequately prosecuting appeal — Adoption of
Charter indicating restrictive approach to Bill of Rights to be
re-examined — Singh et al. v. Minister of Employment and
Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1 applied —
Canadian Bill of Rights, R.S.C. 1970, Appendix III, s. 2(e) —
Immigration Appeal Board Rules, C.R.C., c. 943, s. 13.
Judicial review — Prerogative writs — Immigration —
Mandamus — Application for mandamus ordering Minister to
permit family members to enter Canada to testify before
Immigration Appeal Board — Applicant relying on s. 7 of
Charter and s. 2(e) of Canadian Bill of Rights — Whether
constitutional rights espoused by these provisions giving wider
scope to remedy of mandamus — Respondent arguing order of
mandamus amounting to compelling exercise of administrative
decision in particular manner — Application allowed —
Recent Supreme Court of Canada decisions obliterating divid
ing line between activity in quasi-judicial sphere and adminis
trative functions per se — Application of principles of natural
justice and fairness varying according to circumstances of each
case — Canadian Bill of Rights, R.S.C. 1970, Appendix III, s.
2(e) — Canadian Charter of Rights and Freedoms, being Part
I of the Constitution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.), s. 7 — Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, s. 18.
Constitutional law — Charter of Rights — Liberty and
security — Application for mandamus to compel Minister to
grant visas to family members to testify at Immigration
Appeal Board hearing re: refusal of applications for perma
nent resident status — No evidence of real or likely threat to
physical integrity or well-being of applicant — S. 7 not
applicable — Canadian Charter of Rights and Freedoms,
being Part I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.), s. 7.
Immigration — Application for mandamus requiring Minis
ter to grant visitors' visas to family members to testify at
appeal from refusal of applications for permanent resident
status — Issue on appeal credibility — Visa denial based on
improper, extraneous considerations — Order of mandamus
made — Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 9(1),
55, 79(1)(b).
This is an originating motion for mandamus requiring the
Minister to grant visitors' visas to the applicant's father,
mother and sister. The application for visas was refused on the
ground that the applicants were not deemed to be bona fide
visitors to Canada. Previously the applicant's family's applica
tion for permanent residence had been denied because it was
not established that the daughter was a dependant. The father's
statutory declaration concerning the daughter's date of birth
was rejected as "unofficial, unverifiable and self-serving". The
applicant contends that the issue on the appeal is one of
credibility, so that it is important that his family appear in
person before the Immigration Appeal Board. He invokes
section 7 of the Charter and paragraph 2(e) of the Canadian
Bill of Rights to establish the Minister's duty to admit the
family members for that purpose. The issue is whether the
constitutional rights espoused by these statutory provisions give
wider scope to the remedy of mandamus than it had before.
The applicant contends that he has a right to a full and fair
opportunity to make out his appeal by way of presenting the
best evidence, which would be by testifying in person so that
the Board can determine credibility by judging the demeanor of
the witnesses. The applicant relies on Singh et al. v. Minister of
Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R.
1. The respondent argues that granting mandamus would
amount to compelling the exercise of an administrative discre
tion in a particular manner, contrary to the general principle
that mandamus lies to compel the performance of a public
duty, but not so as to dictate the particular result. Section 13 of
the Immigration Appeal Board Rules gives the parties to an
appeal the right to call witnesses.
Held, the application should be allowed.
Section 7 of the Charter does not apply. Nothing in the
denial of the asserted right to have family members testify as
witnesses at the appeal impinges on section 7 in the sense of
depriving the applicant of the right to "security of the person".
Section 7 cannot be deemed to encompass any real or likely
threat to the physical integrity or well-being of the applicant in
the absence of evidence to the contrary, apart from natural
anxieties attributable to the separation.
Paragraph 2(e) of the Canadian Bill of Rights prohibits the
construction of statutes in such a way as to deprive a person of
"a fair hearing in accordance with the principles of fundamen
tal justice". The Singh case gave new life and meaning to the
Canadian Bill of Rights. Beetz J. relied on paragraph 2(e) to
reach the conclusion that the provisions of the Immigration
Act, 1976 that denied an oral hearing were inoperative. Wilson
J. observed that the adoption of the Charter conveyed a clear
message to the courts that any restrictive approach to the
Canadian Bill of Rights would have to be re-examined. She
further noted that the dividing line between administrative
activity in the quasi-judicial sphere and the exercise of adminis
trative functions per se had been largely obliterated by the
decisions in Martineau v. Matsqui Institution Disciplinary
Board, [1980] 1 S.C.R. 602 and Attorney General of Canada v.
Inuit Tapirisat of Canada et al., [1980] 2 S.C.R. 735. In the
Matsqui case it was stated that the application of the principles
of natural justice and fairness will vary according to the
circumstances of each case. Wilson J. quoted with approval the
statement from Duke v. The Queen, [1972] S.C.R. 917, that
paragraph 2(e) means that the tribunal which adjudicates a
person's rights "must act fairly, in good faith, without bias and
in a judicial temper, and must give him the opportunity ade
quately to state his case." She commented that it would be
difficult for a tribunal to comply with fundamental justice by
making findings of credibility based solely on written
submissions.
The denial of visas deprived the applicant of procedural
redress and the fair opportunity of adequately prosecuting his
appeal so as to amount to a deprivation of his right to a fair
hearing in accordance with the principles of fundamental jus
tice. The denial of visas was an exercise of an arbitrary
discretion based on improper and extraneous considerations.
The reason for the denial was the `deemed' prejudgment that
the persons refused were not bona fade visitors. No regard was
paid to the consequences this might have on the fair hearing of
the appeal. The reason given was no good reason at all.
CASES JUDICIALLY CONSIDERED
APPLIED:
Singh et al. v. Minister of Employment and Immigra
tion, [1985] 1 S.C.R. 177; 58 N.R. 1; Martineau v.
Matsqui Institution Disciplinary Board, [1980] 1 S.C.R.
602; Duke v. The Queen, [1972] S.C.R. 917.
CONSIDERED:
Vardy v. Scott et al., [1977] 1 S.C.R. 293; (1976), 66
D.L.R. (3d) 431.
REFERRED TO:
Attorney General of Canada v. Inuit Tapirisat of Canada
et al., [1980] 2 S.C.R. 735.
COUNSEL:
Guy Riecken for applicant.
Mitchell Taylor for respondent.
SOLICITORS:
John Taylor & Associates, Vancouver, for
applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for order ren
dered in English by
McNAIR J.: This is an originating motion of the
applicant under section 18 of the Federal Court
Act [R.S.C. 1970 (2nd Supp.), c. 10] for a man-
damus in the terms and on the grounds stated in
his notice of motion as follows:
1. To show cause why a Writ of Mandamus should not be
issued to the Minister of Employment and Immigration,
ordering the said Minister to grant Inder Singh Kahlon,
Mohinder Kaur Kahlon and Parminderjit Kaur Kahlon
non-immigrant visas to enter Canada, or to otherwise
permit the said persons to enter Canada, in order that they
may testify at the Appeal to the Immigration Appeal
Board by the said Baldev S. Kahlon.
2. For consequential relief.
3. For costs of this action.
Dr. Baldev S. Kahlon is a new Canadian citizen
living in North Delta, British Columbia, who
would like to have his father, mother and sister
join him from Khanowal, India. He sponsored
their application as a family class for permanent
residence. The application of the family members
was denied by the immigration official in New
Delhi. Dr. Kahlon appealed as their sponsor to the
Immigration Appeal Board and the appeal is
pending.
On March 19, 1985 the applicant's father and
mother, Inder Singh Kahlon and Mohinder Kaur
Kahlon, and his sister, Parminderjit Kaur Kahlon,
applied to the Canadian High Commission in New
Delhi for visas to enter Canada as visitors for the
purpose of testifying at Dr. Kahlon's appeal before
the Immigration Appeal Board. The application
was made under subsection 9(1) of the Immigra
tion Act, 1976 [S.C. 1976-77, c. 52]. The visa
officer rejected the application on the ground that
the applicants were "not deemed to be bona fide
visitors to Canada".
The appeal arises out of the earlier application
in 1983 for permanent residence, which was denied
on the ground that it had not been established that
the daughter was a dependant within the meaning
of the Act and Regulations, that is, that she was
under the age of 21 years. The statutory declara
tion of the father that his daughter was born on
September 20, 1964 was summarily rejected as
being "unofficial, unverifiable and self-serving".
The applicant contends that the whole issue of the
appeal is one going to credibility so that it becomes
essentially important that his father and mother
and sister be given temporary access to Canada for
the purpose of appearing in person before the
Immigration Appeal Board. Consequently, he says
that there is a duty on the Minister to grant them
temporary access for that purpose and he invokes
in aid section 7 of the Canadian Charter of Rights
and Freedoms [being Part I of the Constitution
Act, 1982, Schedule B, Canada Act 1982, 1982, c.
11 (U.K.)] and paragraph 2(e) of the Canadian
Bill of Rights [R.S.C. 1970, Appendix III].
The issue raised is whether the constitutional
rights espoused by these statutory provisions give
wider scope to the remedy of mandamus than that
which may have heretofore existed in authorizing
the court to compel the Minister to grant these
persons temporary entry to Canada to testify as
witnesses at the immigration appeal.
Mr. Riecken, counsel for the applicant, contends
that it is the right of his client under section 7 of
the Charter and paragraph 2(e) of the Canadian
Bill of Rights to have full and fair opportunity to
make out his appeal by way of presenting the best
evidence and that this can only be accomplished by
compelling the Minister to let the family members
come to Canada as temporary visitors for the
purpose of testifying as witnesses at the appeal,
notwithstanding that their evidence might be
obtained by commission or letters rogatory or
some form of special examination in India. While
acknowledging that the latter procedures might
serve some useful purpose, he says that they are
not enough inasmuch that credibility has been put
in issue whereby the Immigration Appeal Board
must be given the opportunity to weigh this issue
by judging the demeanor of the witnesses. Mr.
Riecken places much reliance on a recent decision
of the Supreme Court of Canada in Singh et al. v.
Minister of Employment and Immigration,
[1985] 1 S.C.R. 177; 58 N.R. 1.
Mr. Taylor, counsel for the respondent, quite
naturally disputes this. Firstly, he says that man-
damus does not lie to compel the issuance of
visitor visas to the three family members because
this would amount to compelling the exercise of an
administrative discretion in a particular manner.
He submits that the Singh case dealt with the
rights of Convention refugees and is therefore not
applicable. He further contends that if the evi
dence of the family members is so important to the
sponsor's appeal there is no reason why it could
not be obtained in India by the use of a videotape
examination or by way of commission evidence.
His last objection is that the three family members
who were denied visas are not direct parties to the
instant application and that this in itself is the
fatal defect. In my view, this is a technical objec
tion that has no real merit.
The crux of the case is aptly stated in the
concluding paragraph of Dr. Kahlon's affidavit
which reads:
10. That I believe that in my appeal to the Immigration Appeal
Board I believe that the testimony of Inder Singh Kahlon,
Mohinder Kaur Kahlon and Parminderjit Kaur Kahlon is the
best evidence on the main issue in the Appeal, namely the
correct age of Parminderjit Kaur Kahlon, and that my appeal
will be prejudiced and hindered by the absence of such
testimony.
11. That I make this Affidavit in support of an application for
an Order of the Court compelling the Minister of Employment
and Immigration to permit my aforesaid father, mother and
sister to enter Canada temporarily to testify.
The general principle is that mandamus lies to
compel the performance of a public duty but not so
as to dictate the particular result. It can be utilized
to remedy the arbitrary or wrongful exercise of a
statutory discretion based on improper or extrane
ous considerations.
Mr. Justice Dickson [as he then was] summed it
up this way in the case of Vardy v. Scott et al.,
[1977] 1 S.C.R. 293, at page 301; (1976), 66
D.L.R. (3d) 431, at page 437:
Before mandamus can issue there must be a duty, without
discretion, upon the person or body against whom the order is
directed to do the very thing ordered. Here the request made on
behalf of the appellant leaves in obscurity the source of the
right to be enforced.... [Emphasis added.]
The applicant's appeal is founded on paragraph
79(1)(b) of the Immigration Act, 1976. The
source of the specific right, a fortiori the duty,
sought to be enforced is contained in section 13 of
the Immigration Appeal Board Rules, C.R.C., c.
943, which states:
13. (1) The parties to an appeal may call witnesses to give
evidence under oath or affirmation.
(2) The expenses of a witness shall be borne by the party
calling him.
The statutory scheme does recognize the right to
call witnesses at an immigration appeal and the
right thus acknowledged is brought into conflict
with the exercise of an executive or administrative
function in relation to the broad concept of funda
mental justice.
In the Singh case, supra, the appellants were
persons asserting their rights to claim Convention-
refugee status and the denial thereof, without a
hearing. The Court divided as to the respective
grounds for allowing the appeal. Madam Justice
Wilson, for herself and Dickson C.J. and Lamer J.,
held that the applicants were entitled to assert the
protection of section 7 of the Charter which guar
anteed "Everyone ... the right to life, liberty and
security of the person and the right not to be
deprived thereof except in accordance with the
principles of fundamental justice" and that the
phrase "security of the person" encompassed free
dom from the threat of physical punishment or
suffering as well as freedom from such punishment
itself. A Convention refugee was held to have the
right under section 55 of the Immigration Act,
1976 not to "be removed from Canada to a coun
try where his life or freedom would be threatened
..." and that the denial of such a right amounts to
a deprivation of "security of the person" within the
meaning of section 7 of the Charter. Although the
appellants were not entitled at that stage to claim
the rights of Convention-refugee status, given the
potential consequence of the denial of that status,
they were in fact persons with "well founded fear
of persecution" and were thus entitled to the fun
damental justice requirement of an oral hearing
for the proper adjudication of their status.
Mr. Justice Beetz for himself and Estey and
McIntyre JJ., held that the procedures for deter
mining and redetermining Convention-refugee
status were in conflict with paragraph 2(e) of the
Canadian Bill of Rights which afforded the appel
lants the right to "a fair hearing in accordance
with the principles of fundamental justice", even
though these principles did not impose an oral
hearing in all cases. The procedural content of
fundamental justice in a given case depends on the
nature of the legal rights at issue and the severity
of the consequences to the individuals concerned.
With respect to the type of hearing warranted in
the circumstances, threats to life or liberty by a
foreign power are relevant factors.
Does section 7 of the Charter apply here? In my
view, it does not. I can see nothing in the denial of
the asserted right to have the family members
testify as witnesses at the appeal hearing that
impinges on section 7 in the sense of depriving the
applicant of the right to "security of the person".
While acknowledging that family ties are strong
and that the desire to be reunited with one's
kinfolk is a commendable virtue, it is my opinion
that even the most expansive approach to the
words "security of the person" in section 7 of the
Charter cannot be deemed to encompass any real
or likely threat to the physical integrity or the
well-being of the applicant in the absence of any
cogent evidence to the contrary, apart from any
natural concerns or anxieties attributable to the
separation. In the result, the argument under sec
tion 7 of the Charter fails.
The next point that logically arises concerns the
application of paragraph 2(e) of the Canadian Bill
of Rights, which reads:
2. Every law of Canada shall ... be so construed and applied
as not to abrogate, abridge or infringe or to authorize the
abrogation, abridgment or infringement of any of the rights or
freedoms herein recognized and declared, and in particular, no
law of Canada shall be construed or applied so as to
(e) deprive a person of the right to a fair hearing in accord
ance with the principles of fundamental justice for the deter
mination of his rights and obligations;
The Singh case gave new life and meaning to
the Canadian Bill of Rights. Beetz J. relied on
paragraph 2(e) to reach the conclusion that the
provisions of the Immigration Act, 1976 that
denied an oral hearing were inoperative.
Madam Justice Wilson observed in her reasons
that the adoption of the Charter served to convey a
clear message to the courts that any restrictive
approach to the application of the Canadian Bill
of Rights would have to be re-examined.
She further noted that the former dividing line
between administrative activity in the quasi-judi
cial sphere and the exercise of administrative func
tions per se had been largely obliterated by the
high-water level of recent Supreme Court of
Canada decisions: Martineau v. Matsqui Institu
tion Disciplinary Board, [1980] 1 S.C.R. 602 and
Attorney General of Canada v. Inuit Tapirisat of
Canada et al., [ 1980] 2 S.C.R. 735.
In the Matsqui case, Dickson J. observed that
the "principles of natural justice and fairness have
matured in recent years" and, after reviewing the
authorities which buttressed this view, went on to
say at page 622:
The authorities to which I have referred indicate that the
application of a duty of fairness with procedural content does
not depend upon proof of a judicial or quasi-judicial function.
Even though the function is analytically administrative, courts
may intervene in a suitable case.
The learned Judge went to these conclusions at
page 630:
It is wrong, in my view, to regard natural justice and fairness as
distinct and separate standards and to seek to define the
procedural content of each. In Nicholson, the Chief Justice
spoke of a "... notion of fairness involving something less than
the procedural protection of the traditional natural justice".
Fairness involves compliance with only some of the principles of
natural justice. Professor de Smith (3rd ed. 1973, p. 208)
expressed lucidly the concept of a duty to act fairly:
In general it means a duty to observe the rudiments of
natural justice for a limited purpose in the exercise of
functions that are not analytically judicial but administra
tive.
The content of the principles of natural justice and fairness
in application to the individual cases will vary according to the
circumstances of each case....[Emphasis added.]
Even though her decision turned on the applica
tion of the Charter, Madam Justice Wilson dealt
with the notion of procedural fairness in her broad
approach to the concept of fundamental justice in
the Singh case, by quoting with approval the fol
lowing statement articulated by Fauteux C.J. in
Duke v. The Queen, [1972] S.C.R. 917, at page
923:
Under s. 2(e) of the Bill of Rights no law of Canada shall be
construed or applied so as to deprive him of "a fair hearing in
accordance with the principles of fundamental justice." With
out attempting to formulate any final definition of those words,
I would take them to mean, generally, that the tribunal which
adjudicates upon his rights must act fairly, in good faith,
without bias and in a judicial temper, and must give to him the
opportunity adequately to state his case.
The learned Judge made this significant com
ment at pages 213-214 of Singh:
I should note, however, that even if hearings based on written
submissions are consistent with the principles of fundamental
justice for some purposes, they will not be satisfactory for all
purposes. In particular, I am of the view that where a serious
issue of credibility is involved, fundamental justice requires that
credibility be determined on the basis of an oral hearing.
Appellate courts are well aware of the inherent weakness of
written transcripts where questions of credibility are at stake
and thus are extremely loath to review the findings of tribunals
which have had the benefit of hearing the testimony of wit
nesses in person: see Stein v. The Ship "Kathy K", [1976] 2
S.C.R. 802, at pp. 806-08 (per Ritchie J.) I find it difficult to
conceive of a situation in which compliance with fundamental
justice could be achieved by a tribunal making significant
findings of credibility solely on the basis of written submissions.
[Emphasis added.]
The Immigration Appeal Board is the master of
its own procedure but it nevertheless chose to give
statutory affirmation to the right of a party to call
witnesses on the hearing of an immigration appeal.
The applicant claims that right on the ground that
the real issue in the appeal is one of credibility that
can only properly be determined by having the
witnesses testify at the hearing. This is straightfor
ward and indisputable as far as it goes but the
Immigration Act, 1976 interposes to deny these
witnesses entry into Canada. The Minister and his
officials say that they cannot be deemed to be
bona fide visitors to Canada. I cannot imagine
anything more bona fide than wanting to enter a
country temporarily for the purpose of testifying at
an appeal, especially where the subject-matter
involves an adjudication of . their own ultimate
rights. If they had sought holiday or vacation
visas—would that have been more bona fide? I
think not.
The point really in issue, of course, is Dr. Kah-
lon's right to have his family members appear as
witnesses at the hearing of the appeal. The ques
tion propounded is this—did the denial of visitors'
visas to the applicant's father and mother and
sister deprive him of procedural redress and the
fair opportunity of adequately prosecuting his
appeal so as to contextually amount to a depriva
tion of his_ right to a fair hearing in accordance
with the principles of fundamental justice within
the meaning of paragraph 2(e) of the Canadian
Bill of Rights? In my opinion, it does.
Moreover, I consider that the denial of the visas
in the circumstances of this case was nothing more
than the exercise of an arbitrary discretion based
on improper and extraneous considerations. The
avowed reason for the denial was the `deemed'
prejudgment that the persons refused were not
bona fide visitors to Canada. Although not stated,
it must be inferred that this was because the
persons refused wanted to be witnesses at the
applicant's immigration appeal. Seemingly, no
regard was paid to the consequences this might
have on the fair hearing of the appeal. Under the
circumstances, the reason given was, in my opin
ion, no good reason at all, at least not one of
sufficient merit to preclude judicial surveillance.
For these reasons, the motion is granted and an
order of mandamus will go accordingly. The appli
cant shall have his costs.
ORDER
1. An order of mandamus is hereby made requir
ing the Minister of Employment and Immigration
to grant to Inder Singh Kahlon, Mohinder Kaur
Kahlon and Parminderjit Kaur Kahlon visitors'
visas to enter Canada for the purpose of testifying
as witnesses at the hearing of the immigration
appeal of their sponsor, the applicant herein, pur
suant to subsection 9(1) of the Immigration Act,
1976, or to permit the said persons to enter
Canada for the purpose aforesaid under Minister's
permit or such other lawful means as the statute
may provide.
2. The applicant shall have his costs of the motion
payable forthwith after taxation thereof.
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.