T-1062-87
Dar Bar Singh Padda (Plaintiff)
v.
Minister of Employment and Immigration
(Defendant)
INDEXED AS: PADDA V. CANADA (MINISTER OF EMPLOYMENT
AND IMMIGRATION)
Trial Division, Collier J.—Vancouver, March 29,
1988.
Judicial review — Equitable remedies — Declarations —
Invalidity of deportation order — Board determined plaintiff
not Convention refugee — No oral hearing — Deportation
ordered — Oral hearing in redetermination proceedings held
necessary in Singh — Federal Court of Appeal set Board's
decision aside — Board again determining not Convention
refugee — Whether deportation order voidable or void — Use
of those terms in administrative law deprecated — Board's
initial decision void ab initio — Deportation order also void —
Result of new inquiry, after four years, not necessarily same as
facts or law may change — `Floodgates" argument, based on
backlog of refugee claims, rejected.
Immigration — Deportation — Deportation order issued
pursuant to Immigration Appeal Board finding plaintiff not
Convention refugee — Board's decision as to Convention
refugee status set aside — On rehearing, Board again finding
plaintiff not Convention refugee — As decision pursuant to
which deportation order issued void ab initio, deportation
order also void.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Bill of Rights, R.S.C. 1970, Appendix III.
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.).
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 45(1),
70(1).
Immigration Regulations, 1978, SOR/78-172.
CASES JUDICIALLY CONSIDERED
APPLIED:
Durayappah v. Fernando, [1967] 2 All E.R. 152 (P.C.).
CONSIDERED:
Singh et al. v. Minister of Employment and Immigra
tion, [1985] 1 S.C.R. 177.
REFERRED TO:
Junior Books Ltd. v. Veitchi Co. Ltd., [1983] 1 A.C. 520
(H.L.).
AUTHORS CITED
Wade, H. W. R. Administrative Law, 4th ed. Clarendon
Press: Oxford, 1977.
COUNSEL:
Andrew J. A. McKinley for plaintiff.
David A. Coulson for defendant.
SOLICITORS:
Andrew J. A. McKinley, Vancouver, for
plaintiff.
Clark, Wilson, Vancouver, for defendant.
The following are the reasons for judgment
delivered orally in English by
COLLIER J.: The plaintiff's action is for a decla
ration that a deportation order made against him,
dated December 6, 1984, is invalid and of no
effect.
An agreed statement of facts was filed at trial.
The plaintiff is a national of India. He came to
Canada, on August 17, 1981, as a visitor. That
status ceased on April 19, 1982. The plaintiff
remained. He also worked, without authorization,
contrary to the Immigration Act Regulations
[Immigration Regulations, 1978, SOR/78-172].
He became the subject of an inquiry under the
statute. At the inquiry he claimed Convention
refugee status pursuant to subsection 45(1) of the
Act [Immigration Act, 1976, S.C. 1976-77, c. 52].
The inquiry was continued, then adjourned, so the
plaintiff could be examined by a senior immigra
tion officer in respect of his refugee claim.
That claim was then referred to the defendant
Minister. The Minister determined the plaintiff
was not a Convention refugee.
Next, the plaintiff applied to the Immigration
Appeal Board, pursuant to subsection 70(1) for
redetermination of his claim. The Board, on July
16, 1984, determined the plaintiff was not a Con
vention refugee.
It is common ground, though not set out in the
statement of facts, the Board did not hold an oral
hearing. That was the practice at that time.
The inquiry resumed and the impugned deporta
tion order was made.
The plaintiff then applied, pursuant to section
28 of the Federal Court Act [R.S.C. 1970 (2nd
Supp.), c. 10], to set aside the order. That applica
tion was, on June 18, 1985, dismissed.
Next, came the now well-known decision of the
Supreme Court of Canada in Singh et al. v. Min
ister of Employment and Immigration, [1985] 1
S.C.R. 177. The Court held the Board, in redeter-
mination proceedings, must provide oral hearings.
The legislation then in place was held, by three
judges, to have violated the Charter [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, by the other
three, the Bill of Rights [Canadian Bill of Rights,
R.S.C. 1970, Appendix III].
The plaintiff then appealed the Board's redeter-
mination decision of July 16, 1984 to the Federal
Court of Appeal. That Court on January 6, 1986,
set aside the Board's decision and referred the
matter back, "for re-determination of the appli
cant's claim after a hearing on the merits in
accordance with the principles of fundamental
justice."
The Board reheard the matter. On March 20,
1987 the Board determined, once more, the plain
tiff was not a Convention refugee.
Immigration officials took steps to enforce the
1984 deportation order. This action was com
menced. An interlocutory injunction was granted
against the defendants, restraining them, until the
trial of this action, from removing the plaintiff
from Canada.
The plaintiff's argument is as follows: A depor
tation order could not be made until the Board
decided the redetermination claim; the Board gave
a decision on July 16, 1984; the deportation order
was made; but the Board's decision was set aside;
that decision, in law, no longer existed; the depor
tation order was based on a wrong or invalid
premise that the plaintiff was not a Convention
refugee; the Board's decision being invalid or a
nullity, the deportation order is in the same
category.
For the defendants, it was said the deportation
order is still, today, a valid order; it is voidable, but
not void; in the circumstances here, the declaration
sought should not be made.
Counsel for the defendants drew a distinction
between a void or voidable order or decision. I do
not consider the distinction material in this case. If
it were, I suggest the deportation order here was
void. I refer to Durayappah v. Fernando, [1967] 2
All E.R. 152 (P.C.). There, the Minister of Local
Government of Ceylon made an order that a
municipal council was not competent to perform
its duties, and directed the council be dissolved and
superseded. In the prior investigation, the council
had not been given an opportunity to be heard.
The mayor of the council, acting on his own, and
not the council itself, brought proceedings to quash
the Minister's order. The Privy Council held there
had been a breach of the rules of natural justice:
the council should have been given an opportunity
to be heard. A question arose, however, as to
whether the mayor was entitled to maintain the
action. The answer was no. Lord Upjohn at pages
158-160 deprecated the use of void and voidable in
the field of administrative law, or judicial review.
The distinction, it was said, should be between a
"nullity" and "void" or "voidable". At page 160, I
quote the following:
While in this case their lordships have no doubt that in an
action by the council the court should have held that the order
was void ab initio and never had any effect, that is quite a
different matter from saying that the order was a nullity of
which advantage could be taken by any other person having a
legitimate interest in the matter.
Here, in my view, the Board decision of July 16,
1984 was void ab initio and never had any effect.
The person attacking the decision was the
person against whom the order was actually made.
The deportation order could, by the statute, only
be made after a Board decision which had effect in
law.
The deportation order was a consequential act,
following on the Board's invalid decision. The
deportation order was, in my view, also void, and
had, and has, no effect. See for authority, Wade,
H. W. R. Administrative Law, 4th ed., Clarendon
Press: Oxford, 1977, page 283 ff.
The defendants contended the declaration
should not, in any event, be made. It was said the
old inquiry cannot be reopened; a new inquiry
would have to be launched; the whole procedure
would be repeated; the result would necessarily be
the same; the plaintiff would be found not to be a
Convention refugee; a deportation order would,
once more, be made.
I do not agree.
It does not follow that the same result will
inevitably occur. This is 1988, not 1984. The facts
may have changed. The law may be changed by
the time a new set of proceedings finally reach
their end.
Finally, the defendants point to the tremendous
backlog of refugee claims now pending at one
stage or another. It is estimated that 200 to 400
applicants may be in the same position as the
plaintiff here.
This is a type of "floodgates" argument, some
what akin to those advanced in certain tort claims:
see, for example, Junior Books Ltd. v. Veitchi Co.
Ltd., [1983] 1 A.C. 520 (H.L.).
I do not give effect to it.
The plaintiff's legal rights have been infringed.
If there are many others, whose rights have been
similarly infringed, they too are entitled to relief.
There will be a declaration that the deportation
order made against the plaintiff on December 16,
1984 is void and of no effect.
The declaration will be against the defendant
Minister only.
The plaintiff is entitled to the costs of this
action.
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.