Judgments

Decision Information

Srivastava v. Min. of Man. & Imm.

Collection	Judgments
Date	1973-02-16
Report citation	[1973] 1 F.C. 138
Subjects	Citizenship and Immigration

Decision Content

Shyama Charan Srivastava (Appellant) v.

Minister of Manpower and Immigration (Respondent)

Court of Appeal, Jackett C.J., Thurlow J. and Cameron D.J.—Ottawa, February 2, 5 and 16, 1973.

Immigration—Appeal from deportation order—Evidence admissible on appeal—Decision that appellant not an enter- tainer—Appeal not restricted to that ground—Decision that appellant not bona fide immigrant—Opinion of Special Inquiry Officer reviewable on evidence—Immigration Act, R.S.C. 1970, c. I-2, secs. 5(p), 7(1)(g).

An appellant on an appeal to the Immigration Appeal Board from a deportation order made by a Special Inquiry Officer has a right to call witnesses and otherwise tender evidence at the hearing before the Board, and the Board must receive such evidence so long as it is relevant and admissible.

Where a person applies for admission to Canada as a non-immigrant under one particular paragraph of section 7(1) of the Immigration Act. e.g. as an entertainer under paragraph (g), and is ordered deported, he is not restricted on an appeal from the deportation order to claiming status as a non-immigrant under the same paragraph of section 7(1).

On an appeal to the Immigration Appeal Board from a deportation order, the decision of the Special Inquiry Offi cer that the appellant is not a bona fide immigrant within the meaning of section 5(p) of the Immigration Act is review- able by the Board and the matter is to be decided on the evidence. Gana v. Minister of Manpower & Immigration [1970] S.C.R. 699, applied.

APPEAL from Immigration Appeal Board.

COUNSEL:

Royce H. Frith for appellant.

D. H. Aylen, Q.C. and Paul Betournay for respondent.

SOLICITORS:

Magwood, Frith, Pocock, MacDonald and O'Callaghan, Toronto, for appellant.

Deputy Attorney General of Canada for respondent.

JACKETT C.J.—This is an appeal under sec tion 23 of the Immigration Appeal Board Act

R.S.C. 1970, c. I-3, as amended by the Federal Court Act, R.S.C. 1970, (2nd Supp.), c. 10, from a decision of the Immigration Appeal Board dismissing an appeal from a deportation order.'

By its decision, the Immigration Appeal Board

(a) rejected attacks on the validity of the deportation order, and

(b) rejected an application that it exercise its discretionary powers under section 15 of the Immigration Appeal Board Act.

In so far as the appeal to this Court relates to the dismissal by the Immigration Appeal Board of the appellant's application under section 15, it was dismissed from the Bench without calling on the respondent. It remains, therefore, to deal with the appeal in so far as it relates to the validity of the deportation order.

Three questions are raised by the appeal. These might be expressed as follows:

1. Did the Immigration Appeal Board err in law in taking the position during the hearing that it would not hear evidence concerning the validity of the deportation order unless it were evidence that could not have been brought before the Special Inquiry Officer; and, if so, is the appellant entitled to a re- hearing of his appeal by the Immigration Appeal Board having regard to what hap pened during the hearing of the appeal before the Board?

2. Is it the law that the appellant, on his appeal to the Immigration Appeal Board, was restricted, when claiming status as a non- immigrant, to relying on the particular para graph of section 7(1) of the Immigration Act that was under consideration during the inqui ry before the Special Inquiry Officer?

gration Act) or can such a finding only be attacked if there was no evidence before the Special Inquiry Officer to support that opin ion or if that opinion was based on a wrong principle?

I shall deal first with question number 1, which I repeat for convenience:

The position taken by the Board on this ques tion is shown by the following passage from the transcript of the proceedings before the Board:

ME FRITH: Well, perhaps that's another issue—perhaps the Board perhaps might be on. I understand that this is especially a proceeding de novo—

CHAIRMAN: No, it's an appeal, a straight appeal.

ME FRITH: Well, then, there is no evidence admissible? Do we have to proceed entirely—

CHAIRMAN: It's admissible in respect to, of course, your claim, relief under 15, section 15 of our Act, but as far as the ground of the deportation order is concerned the only new evidence that would be admissible would be evidence that you could not physically have brought in before the special inquiry officer. In other words, the same rules than any other court of appeal.

ME FRITH: That means in effect we are proceeding, except as to the section 15, on the record before the special inquiry officer?

CHAIRMAN: That's right. ME FRITH: Alright.

A consideration of the correctness of the view expressed by the Chairman on behalf of the Board requires a review of parts of the relevant statutes and the regulations made thereunder.

In the first place, it should be noted that the Immigration Act, R.S.C. 1970, c. I-2 contains substantive provisions as to who can come into

Canada and remain in Canada; 2 and it also con tains procedural or "machinery" provisions to give effect to the substantive rules.

The substantive provisions may be summa rized, in so far as relevant for present purposes, as follows:

(a) a Canadian citizen has the right to come into Canada (section 3(1) of the Immigration Act);

(b) with certain exceptions, a person who has Canadian domicile as defined for the pur poses of the Immigration Act must be allowed to come into Canada (section 3(2) of the Immigration Act);

(c) every person seeking to come into Canada is presumed to be an "Immigrant" (that is a person seeking to come into Canada for per manent residence) unless he shows the con trary (section 6 read with the definition of "Immigrant" in section 2);

(d) certain classes of persons may be allowed to enter and remain in Canada as "Non-immi- grants"—among others, these include

"(c) tourists or visitors;"

"(d) persons passing through Canada to another country;"

"(e) clergymen, priests or members of a religious order entering Canada or who, having entered, are in Canada in connection with the carrying out of their religious duties;"

"(g) members of dramatic, artistic, athletic or other groups entering Canada or who, having entered, are in Canada for the purpose of giving performances or exhi bitions of an entertaining or instructive nature;"

"(h) persons engaged in a legitimate profession, trade or occupation entering Canada or who, having entered, are in Canada for the temporary exercise of their respective callings;" and

"(i) persons entering Canada or who, having entered, are in Canada for seasonal or other temporary employ ment, unless otherwise directed by the Minister;"

(e) the Governor in Council is authorized to make regulations prohibiting or limiting admission of persons who would otherwise be admissible (section 57);

(f) the admission of certain classes of persons is prohibited; in addition to persons who are prohibited because they belong to classes of persons apparently regarded as intrinsically undesirable, this prohibition extends to

"(p) persons who are not, in the opinion of a Special Inquiry Officer, bona fide immigrants or non-immi grants;" and

"(t) persons who cannot or do not fulfil or comply with any of the conditions or requirements of this Act or the regulations or any orders lawfully made or given under this Act or the regulations."

These rules and others to which I have not referred relate both to the admission of persons to Canada and to allowing persons to remain in Canada.

Turning to the procedural or machinery provi sions, it will be found that the Immigration Act sets up machinery both to enforce the rules concerning the admission of persons to Canada and to effect the deportation of persons who are in Canada contrary to the rules. We are primari ly interested here in the machinery concerning the admission of persons to Canada.

The main procedural steps provided to apply the substantive rules to a person seeking to come into Canada are

(a) an appearance before an Immigration Officer, who either grants the person admis sion (section 19) or reports him to a senior officer called a Special Inquiry Officer (sec- tion 22);

(b) an immediate inquiry (section 23(2)) con ducted by a Special Inquiry Officer who lets the person come in or admits him if he finds that he is a person who has a right to come into Canada and is not a member of a prohib ited class (section 27(2)) and, otherwise, makes a deportation order against him (sec- tion 27(3)); and

(c) an appeal to the Immigration Appeal Board from a deportation order under section 11 of the Immigration Appeal Board Act..

While what has to be decided on this branch of this appeal is the right of an appellant in an appeal from a deportation order to present evi dence before the Immigration Appeal Board, I think it is important to consider first the charac ter of the decision giving rise to the deportation order being appealed from. In my view, in carrying out the steps outlined as conditions precedent to a deportation order, both the Immi gration Officer and the Special Inquiry Officer are performing acts of an administrative nature. They are part of the Department of Manpower and Immigration (R.S.C. 1970, c. M-1), one of whose tasks is the administration and enforce ment of the rules established by Parliament as to what persons may be admitted to Canada. They have certain powers to obtain information for the purpose of making decisions necessary to carry out that task; 3 and they have a duty to use those powers to the best of their ability to obtain the information necessary to enforce the rules established by Parliament concerning admission of persons to Canada. In addition, the Special Inquiry Officer holding an "immediate inquiry" as contemplated by section 23(1) must comply with the requirements of section 26 and of the Immigration Inquiries Regulations, of which requirements the following are worthy of note:

(a) the inquiry is to be "apart from the pub lic" but in the presence of the person con cerned "wherever practicable" (section 26(1));

(b) the person concerned has a right to obtain counsel at his own expense and to be repre sented "at his hearing" (section 26(2));

(d) the inquiry may be adjourned where there is good reason to do so (Regulation 9); and

(e) a full written report must be made of the evidence at the inquiry (Regulation 10).

While this hearing, which must precede the making of a deportation order by a Special Inquiry Officer, has some of the trappings of a

judicial hearing, it is only, in my view, an inqui ry by an administrative officer with a view to ensuring that that officer has available to him the facts necessary for the application of the law as well as that can be accomplished by an "immediate inquiry" held "apart from the pub lic" under the exigencies of keeping a person under restraint pending a decision as to admis sion or deportation. The imposition of some of the requirements of a judicial hearing make it more likely that the true facts will be ascer tained but such an inquiry is not the equivalent of a judicial hearing. In my view, the deporta tion order is not an adjudication by a judicial tribunal but, just like an assessment under the Income Tax Act, is an administrative act by an official of a government department, taken after more than usual safeguards to ensure that it has been properly made.

It is against this background that one must consider the character of the appeal provided from a deportation order made by a Special Inquiry Officer.

The appeal from a deportation order is pro vided for by the Immigration Appeal Board Act . 4

That Act creates a board consisting of seven, eight or nine members holding office during good behaviour, of whom three, including a chairman, must be lawyers (section 3). The Board is a court of record upon which has been conferred in general terms ail the powers of a superior court in connection with the taking of evidence and enforcing of its orders; and which has, for greater caution, been specifically authorized to summon witnesses, to administer oaths, to examine any person upon oath or otherwise, and

"(c) during a hearing (to) receive such addi tional information as it may consider credible or trustworthy and necessary for dealing with the subject-matter before it." (Section 7.)

Three members, of whom one must be a lawyer, is a quorum of the Board (section 6(3)); but there is a provision under which one member of the Board may hear "evidence relating to an appeal" to be used by the Board in determining

the appeal (section 10). The Act also provides that the Board may direct the re-opening of a "hearing" (which by a definition to be found in section 2 means a further examination or inqui ry conducted by a Special Inquiry Officer under the Immigration Act) either before the Special Inquiry Officer who presided at the original hearing or before some other Special Inquiry Officer "for the receiving of any additional evi dence or testimony"; and the additional evi dence so taken, together with the inquiry offi cer's assessment of it, is for the Board's "con- sideration in disposing of the appeal" (section 13).

Apart from the provisions that I have summa rized, in so far as the question now being con sidered is concerned, the Act leaves the Board's practice and procedure to be regulated by rules made by the Board with the approval of the Governor in Council.

Before examining the Board's Rules, it is appropriate to note at this point that the right of appeal against a deportation order is conferred by section 11, which reads as follows:

11. A person against whom an order of deportation has been made under the Immigration Act may appeal to the Board on any ground of appeal that involves a question of law or fact or mixed law and fact.

It is also worthy of note, for this becomes relevant in considering the effect of the Rules, that there are two other main classes of appeals, namely, an appeal by the Minister from a deci sion by a Special Inquiry Officer not to make a deportation order (section 12), and an appeal by a person who desires to sponsor a relative from a refusal to approve his application (section 17). It should also be noted, for the same reason, that, on these appeals, the Board has what is referred to as its "section 15 power", which is a discretionary power, exercisable on grounds of hardship or for compassionate or humanitarian considerations, after having dismissed an appeal against a deportation order, to stay execution of the deportation order, to quash it or to quash it and direct admission of the appellant (section 15).

The portions of the Immigration Appeal Board Rules that, in my view, are relevant, read as follows:

2. In these Rules,

(/) "record" means

(i) in respect of an appeal made pursuant to section 11 or 12 of the Act,

(A) a copy of the deportation order,

(B) the Minutes of inquiry or further examination,

(D) all exhibits to the inquiry, and

(E) all documents made by or at the instance of the Special Inquiry Officer respecting the proceedings before him,

(ii) in respect of an appeal made pursuant to section 11 of the Act, in the case of a person ordered deported pursuant to subsection (1) of section 24 of the Immigra tion Act without further examination,

(A) a copy of the deportation order, and

(B) the report of the Special Inquiry Officer signed by him, and

(iii) in respect of an appeal made pursuant to section 17 of the Act,

(A) the sponsor's written application,

(B) all correspondence between the Department of Manpower and Immigration and the sponsor and the prospective immigrants, and

(C) all written reports by immigration officers relat ing to the refusal of the sponsored application and to the prospective immigrants;

3. (2) A Notice of Appeal shall (b) indicate whether the appellant

(ii) wishes to make submissions to the Board in writing, or

(iii) does not wish to make any submissions to the Board; and

4. (1) An appeal made pursuant to section 11 of the Act shall be instituted by serving a Notice of Appeal upon the Special Inquiry Officer who presided at the inquiry or further examination or upon an immigration officer.

(4) Where an officer referred to in subsection (1) is served with a Notice of Appeal, he shall forthwith

(a) file with the Registrar three copies of the Notice of Appeal and three certified copies of the record;

(b) serve the Minister with one copy of the Notice of Appeal and the record; and

11. (1) Except as otherwise provided in these Rules, the appellant or respondent in an appeal may make oral or written submissions to the Board on any matter pertaining to the appeal and, without restricting the generality of the foregoing, may make submissions in respect of the Board's exercise of its discretion pursuant to subsection (1) of section 15 or section 17 of the Act.

(2) An appellant or respondent, whether or not he appears in person before the Board, has the right to be represented by counsel, but at his own expense.

12. (1) Except as otherwise provided in these Rules, all written submissions to the Board by the appellant and the respondent and their witnesses shall be signed by the person making them and verified by affidavit.

(2) All oral submissions by the appellant and the respond ent and their witnesses shall be made upon oath or affirmation.

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.

18. If at the time set for the hearing of an appeal neither of the parties thereto is present and no one is present to represent them, the Board may review the Notice of Appeal and the record together with any written submissions that may have been made to the Board in respect of the appeal and render its decisions thereon.

I have summarized the provisions of the stat utes that, as I appreciate it, may have some bearing on the question as to whether, in an appeal from a deportation order, the appellant has a right to present evidence bearing on the validity of the deportation order; and I have quoted those portions of the Board's Rules that, as it seems to me, may bear on that question.

The Board's position on this question, as it appears from the remarks of the Chairman already quoted, would seem to be that, because the Board is a court of appeal, it does not receive evidence bearing on the merits of the order appealed from except where the evidence could not have been brought before the Special Inquiry Officer. This view would seem to be

based on the assumption that there is inherent in the word "appeal" the idea of a review of a decision on a record made before the tribunal that made_the decision appealed from. I have not been able to find any support for this view.

Apart from statute there is no right of appeal. (See A. G. v. Sillem, 10 H.L.C. 704.) Where there is an appeal, therefore, its nature must be determined by reference to the statute that cre ates it.

All that is implied by the use of the word "appeal", taken by itself, as I understand it, is stated in the 11th edition of Wharton's Law Lexicon as follows:

the removal of a cause from an inferior to a superior court, for the purpose of testing the soundness of the decision of the inferior court.

In every appeal, under our system of justice, there must be a re-hearing. The question that may arise in each case is whether the re-hearing is based on a record created, in whole or in part, in the court of appeal. Some appeals are ordinarily re-heard on a record created in the inferior court.' In some appeals, the re-hearing is based entirely on evidence taken in the court of appeal; or, as it is sometimes put, the appeal is by way of a trial de novo 6 There can also be appeals where the re-hearing is based on evi dence taken by the inferior tribunal plus evi dence adduced in the court of appeal'

In the case of a court of appeal that ordinarily re-hears the case on the record made in the inferior court, it is not unusual for the court of appeal to have a discretionary power to receive further evidence "on special grounds". In such cases, the court of appeal has usually insisted upon three conditions being satisfied before admitting further evidence, namely,

(a) that the evidence could not have been obtained with reasonable diligence for use at the trial,

(b) that the evidence must be such that, if given, it would probably have an important influence on the result, and

must be apparently credible though it need not be incontrovertible.'

Apparently, the Immigration Appeal Board has proceeded on the view that, in respect of the validity of a deportation order, it is such a court of appeal, that is, a court of appeal that is required to re-hear on the record created by an inferior tribunal but with a discretionary power to hear further evidence "on special grounds". If that is the correct view, the Board did not err in the position that it took in this case concern ing the hearing of evidence as to the validity of the deportation order.

In so far as appeals to the Immigration Appeal Board are concerned, unlike most appeals, there is nothing in the governing statute or the Board's Rules that resolves succinctly the question raised here. There is nothing in its Act or Rules such as there is in the Supreme Court Act, which says (section 67), "The appeal shall be on a case to be stated ...", or in the Income Tax Act where, in creating an appeal from the Tax Appeal Board to the Trial Division of this Court, it is said (section 100(3)) that, upon the filing of the required material, "the matter shall be deemed an action in the Court ... ready for hearing". Unlike such statutes, there is nothing in the Immigration Appeal Board Act that bears directly on the question except that there are full powers given to take evidence and nothing to suggest that such powers are limited to the exercise of discretionary powers or to evidence that was unavailable for the Special Inquiry Officer hearing and there is a power to require the Special Inquiry Officer to take further evi dence for use by the Board. These powers are not necessarily inconsistent with the view taken by the Board on the question of an appellant's right to adduce evidence although their exist ence without anything indicating that they are to have a limited use makes that view seem a little strained. However, in my view, there are a number of considerations that point clearly to the result that an appellant in an appeal from a deportation order to the Immigration Appeal Board has a right to adduce evidence on the issues of fact relevant to the question whether he is a person who has a right to be allowed to

come into Canada, or to stay in Canada if he is already in Canada.

In the first place, a deportation order is an order made by an administrative officer apart from the public in the course of administration, and, while that officer is required to conduct an inquiry and he takes evidence on oath that is recorded, in my view, the record that he creates is not a record in respect of which there can be an assumption of completeness and accuracy such as there can be when there has been a contest under the adversary system before a judicial officer and the hearing has taken place in public. In so far as I know, whenever Parlia ment has provided for an appeal to a judicial tribunal from an administrative decision and the validity of that decision would be likely to depend on the settlement of a dispute as to facts, the appeal has been by way of a re-hear ing that included an opportunity for the appel lant to adduce evidence. I have in mind such appeals as tax appeals to the Tariff Board (see section 5(2) and (13) of the Tariff Board Act) and to the Tax Review Board (which have always proceeded, to the best of my knowledge, on the basis that the parties are entitled to adduce evidence relating to the correctness of the assessment under attack) and trade mark appeals (section 59(3) of the Trade Marks Act, R.S.C. 1970, c. T-10). I see a difference where the question involved is such that it would not be likely to give rise to a dispute as to facts, such as an appeal from the Commissioner of Patents under the Patent Act. In my view, the problems involved in having a judicial tribunal determine an "appeal" from a decision of an administrative officer by way of a re-hearing of a disputed question of fact on a record created by the administrative officer would ordinarily be so great that, in the absence of some indica tion to the contrary, there is an assumption that Parliament intended that the appellant have a right to adduce evidence before the appeal tribunal.

In the second place, when the Rules of the Immigration Appeal Board are examined, in my view, they confer a right to adduce evidence with reference to the validity of the deportation order. It is true that the evidence taken before the Special Inquiry Officer is part of the "record" that is supplied to the Board and to both parties (Rules 2(f) and 4(4)), and, at least in certain circumstances, may be acted upon (Rule 18). Taken by itself, that might have been thought to show that the appeal was to be re-heard on the record although it is not so stated. However, the parties to an appeal are expressly authorized to call witnesses to give evidence (Rule 13). This alone would be suffi cient in my view to show that the appeal is not to be heard on the evidence adduced before the Special Inquiry Officer to the exclusion of any thing else. In addition, moreover, the parties are authorized to make "oral or written submis sions on any matter pertaining to the appeal" (Rule 11(1)); and, in my view, these submis sions are not submissions in the sense in which that word is ordinarily used by lawyers, namely, "something urged deferentially", because, when they are in writing, these submissions must be verified by affidavit (Rule 12(1)) and, when they are oral submissions "by the appellant and the respondent and their witnesses", these sub missions must be made on oath or affirmation. There is a necessary implication from these requirements that the "submissions" authorized by the Rules are vehicles for putting evidence before the Board and, as I have already indica ted, they may be on any matter pertaining to the appeal.

A third consideration that, in my view, shows that an appeal to the Immigration Appeal Board is not an appeal on the "record" is that, even if it were conceivable that this first hearing before a judicial tribunal, in the case of an appeal from an ordinary deportation order, was to be a re- hearing on the "record" established by the Rules (Rule 2(1)), which contains at least some evidence, it is not conceivable that it was intended that an appeal by a person deported to the United States under section 23(1), or that an appeal by a "sponsor", should be re-heard on the "record" as established by the Rules (Rule 2(f)). Even if the "record", where there has

been an "inquiry" by a Special Inquiry Officer, might have been regarded as a sufficient basis for a re-hearing by way of appeal by a properly constituted court, a reference to the definition of record for these other two classes of case shows that the appellant would have, indeed, a very limited opportunity to obtain relief, if he had no right to go outside that "record".

Finally, additional support for the conclusion that such an appellant has an unrestricted right to call evidence arises from the consideration that the Board is constituted as a court of record with power to summon witnesses and require them to give evidence on oath coupled with the consideration that the Board, in addi tion to the powers conferred on it by section 14 in dealing with appeals, is by section 22 given inter alla "sole and exclusive jurisdiction to hear and determine all questions of fact or law, including questions of jurisdiction, that may arise in relation to the making of an order of deportation".

As against these considerations, which point to the conclusion that an appellant in an appeal from a deportation order has a right to adduce any evidence that will put a different light on the issues of fact relevant to the question whether he is a person who has a right to be allowed to come in to Canada, there is one provision in the Immigration Appeal Board Act itself that causes me some difficulty. I refer to section 14 of that Act, which authorizes the Board to dispose of an appeal under section 11 by allowing it, dismissing it or "rendering the decision and making the order that the Special Inquiry Officer ... should have rendered and made." This would seem to be a provision that is more appropriate to a tribunal that re-hears an appeal on the basis of the record made before the tribunal appealed from and would seem to point to the appeal being that sort of appeal. However, even where an appeal is on the record made before the tribunal appealed from, it is usual for the appeal tribunal to have authority to receive additional evidence "on special grounds" and nevertheless the formula con-

tained in section 14 is usually employed in such a case to define the appeal tribunal's decision making powers. While, therefore, the way in which section 14 is formulated raises a doubt in my mind, my conclusion is that, in any case where the appeal court may receive additional evidence, whether "on special grounds" or as a matter of course, the power to render the deci sion that the court below should have given must be read as a power to render the decision that the court below should have given if it had had all the evidence before it that the appeal court has before it and that, while section 14 points towards an appeal on the record made before the authority appealed from, it does not outweigh the considerations that I have referred to that, in my view, point the other way.

For the above reasons, I am of the view that an appellant, in an appeal from a deportation order, has a right to call witnesses and other wise tender evidence at the hearing before the Immigration Appeal Board and that the Board must receive such evidence as long as it is relevant and admissible (due account being taken of section 7(2)(c) of the Immigration Appeal Board Act). 9

Coming now to the question as to whether the appellant is entitled to any relief in this case because of the Board's refusal to receive evi dence concerning the validity of the deportation order, I have come to the conclusion that the Board, by the position that it took in the passage of the transcript that has been quoted, refused to hear the appeal in the manner in which it was by law required to hear it, and that the appellant is, therefore, entitled to a new hearing. (Cf. The Queen v. Marsham [1892] 1 Q.B. 371, per Lord Halsbury, L.C. at page 375.) In my view, there fore, the appeal should be allowed, the decision of the Immigration Appeal Board should be set aside and the matter should be referred back to the Immigration Appeal Board for re-hearing on the basis that the parties are entitled to put in as of right any relevant and admissible evidence relating to the validity of the deportation order.

I turn now to the second question raised by this appeal, which I repeat for convenience:

The portion of the Immigration Appeal Board's decision, which raises this question, reads as follows:

In his argument on appeal, Mr. Frith sought to induce this Court either to allow the appeal, on the ground that the appellant was a bona fide non-immigrant, or alternatively, to render the decision and make the order the Special Inquiry Officer should have made, pursuant to section 14(c) of the Immigration Appeal Board Act, that is, admit the appellant as a bona fide non-immigrant under any one of four subsec tions of section 7(1) of the Act, namely, section 7(I)(e) (a member of a religious order in Canada in connection with the carrying on of his religious duties), section 7(1)(g) (enter- tainer, or, as Mr. Frith emphasized, performances of an "instructive nature"—this was the subsection under which entry was actually sought), section 7(I)(h) (temporary exer cise in Canada of a legitimate trade or occupation), or section 7(1)(i) (seasonal or temporary employment).

•

In the instant appeal, however, all the evidence adduced at the inquiry was introduced in support of the subject's claim to entry as an entertainer, for a period of two to three years, on the strength of a "contract", that is a document which by no legal standards, or even by the standards of common sense, could be accepted as more than a statement of goodwill on the part of Mr. Stirling. A Special Inquiry Officer, in respect of a person seeking to come into Canada, is not obliged to go on a fishing expedition through all the sub-paragraphs of section 7(1) to find a category which may suit the prospective non-immigrant. The latter has the burden of proving his eligibility within the category under which he seeks entry: section 26(4) of the Immigration Act, which provides:

26. (4) Where an inquiry relates to a person seeking to come into Canada, the burden of proving that he is not prohibited from coming into Canada rests upon him.

Mr. Srivastava sought entry as an entertainer, and, in the opinion of the Special Inquiry Officer, failed to satisfy the burden on him that he was a bona fide non-immigrant within that category.

In my view, the answer to the second ques tion is that the appellant, in an appeal to the Immigration Appeal Board from a deportation

order is not restricted, when justifying his claim to status as a non-immigrant, to trying to make out that claim under the particular paragraph of section 7(1) that was under consideration during the inquiry before the Special Inquiry Officer. I go further and I say that there is nothing in the statute or Rules to prevent the Immigration Appeal Board from doing justice according to the law on the facts as they were at the time of the appellant's attempt to obtain admission to Canada. To take an extreme case, if a Canadian citizen resident in Europe applied for entry as a visitor and the Special Inquiry Officer, without any knowledge of the applicant's Canadian citi zenship, made a deportation order against him on the ground that he was not a bona fide immigrant or non-immigrant, I should have no doubt that, on an appeal to the Immigration Appeal Board, the appellant would have a right to show the true facts and, by virtue of his right under section 3(1) of the Immigration Act to come into Canada, obtain a judgment of the Board quashing the deportation order. I do not see any difference between such a case and a case where the evidence and argument before the Special Inquiry Officer has all been directed to one head of section 7(1) but where, with better advice and after more mature considera tion, the evidence and argument before the Board is directed at one or more other heads of that subsection. (It is of course quite possible that such a person may, in the course of such an endeavour, show that he is in the prohibited class created by section 5(1)(t) of the Immigra tion Act because he has not answered "truthful- ly" the questions put to him by the Immigration Officer as required by section 19(2) of that Act.) I do not see how the onus of proof on the person seeking to come into Canada created by section 26(4) affects the matter. The result of that onus is that, in the absence of evidence on a particular issue of fact, it must be decided against the person. It contains nothing that has effect to limit the issues in respect of which evidence may be adduced on the appeal. Fur thermore, the Board, where evidence in support of a novel issue is adduced, has a duty to ensure that there is a fair hearing and must, therefore, ensure that the respondent has, if he has not

already had, a reasonable opportunity to pre pare to meet it.

In dealing with this question, it would seem necessary to include some reference to the statement, in that part of the Board's reasons that has already been quoted, that a "special inquiry officer ... is not obliged to go on a fishing expedition through all the sub-para graphs of section 7(1) to find a category which may suit the prospective non-immigrant" as, in my view, this statement is based on an errone ous view as to the nature of the task being performed by a Special Inquiry Officer. A Spe cial Inquiry Officer is not a judicial officer adjudicating on issues that have been framed formally or informally under the adversary system. A Special Inquiry Officer, as I have already indicated, is, in my view, a departmental officer performing a task of a purely administra tive nature even though it includes the making of decisions on a quasi-judicial basis. Persons are to be admitted to Canada, subject to certain exceptions, if they are non-immigrants in the sense that they fall within one of the heads of section 7(1). When a person (other than a returning citizen or resident of Canada or a would be immigrant) who seeks admission to Canada does not clearly fall within such a head in the view of the Immigration Officer- before whom he first appears, a Special Inquiry Officer holds a more searching inquiry to ascertain whether he does in fact fall within one of those heads. We were not referred to any provision for a written application. There is no suggestion anywhere that the person seeking to come into Canada is supposed to know anything about the Act or Regulations. He must answer questions truthfully. When the officer has his story, the officer makes up his mind whether he falls within one of the various heads of section 7(1). In the ordinary case, once the officer has heard the facts, it will be quite apparent that the applicant does fall within a certain head or that he not fall within any of them. There will be the odd case when he may have to consider several of them. The fact remains that it is an "inquiry" by the Special Inquiry Officer, who knows the statute, and that, in the vast proportion of cases, the person seeking to come into Canada will

know nothing about the Act. In my view, the officer has a duty to inquire why the person seeking admission desires to come into Canada and, on the basis of what he is told by that person and of what he otherwise ascertains to make a determination as to whether he is a non-immigrant within any of the various heads in section 7(1) of the Immigration Act.

I am, therefore, of the view that the judgment of this Court referring this matter back for a new hearing should contain a direction that, on the new hearing, the appellant is not to be restricted to the contention that he was a non- immigrant by virtue of section 7(1)(g).

The third question raised by this appeal, as set out at the beginning of these reasons, reads as follows:

3. Was the appellant entitled to have a review by the Immigration Appeal Board of the find ing by the Special Inquiry Officer that he was not, in the opinion of the Special Inquiry Officer, a bona fide non-immigrant (and was, in consequence, a member of the prohibited class described in section 5(p) of the Immi gration Act) or can such a finding only be attacked if there was no evidence before the Special Inquiry Officer to support that opin ion or if that opinion was based on a wrong principle?

This question raises, for decision, the effect of section 5(p) of the Immigration Act, which reads as follows:

5. No person other than a person referred to in subsection 7(2), shall be admitted to Canada if he is a member of any of the following classes of persons:

(p) persons who are not, in the opinion of a Special Inquiry Officer, bona fide immigrants or non-immigrants;

This question is raised by that part of the Board's reasons in this Case that read as follows:

It will be noted that section 5(p) of the Act is one of the very few sections where specific reference is made to the opinion of the Special Inquiry Officer; in other words, he is given discretion. It has long been settled law that where a judicial appeal is provided from a decision based on discre-

tion or opinion, the appellate tribunal has no power to substitute its opinion for that of the lower tribunal—even if it would have, on the same evidence, formed a different opinion—unless the decision of the lower tribunal was based on a wrong principle, or, on the evidence, was manifestly wrong. In Lonnie Verne Woods, 1970, 1 LA.C. 1, this Court held (at page 12)

The words "in the opinion of" in Section 5(p) of the Immigration Act undoubtedly give the Special Inquiry Officer discretionary power, and if it is clear on the face of the record that there is some evidence on which this opinion can reasonably be based, the Board cannot substi tute its opinion for that of the Special Inquiry Officer, even if it does not agree with his decision.

In the instant appeal, can it be said that the Special Inquiry Officer, on the evidence before him, was manifestly wrong? The criteria for determining the bona fides of a non-immigrant has long been established. (Vela v. Min of Manpower and Immigration, 1970,11 I.A.C. 111). While Mr. Srivastava was able to bring himself within some of these, it must be said that on the evidence before her, the Special Inquiry Officer was justified in forming the opinion that he failed to bring himself within the first two criteria listed in Vela, i.e.:

a) He is a person who is a member of any of the classes designated in section 7, sub-sections 1 and 2 of the Immigration Act.

b) He is seeking to enter Canada for a legitimate and temporary purpose; and is able to establish this.

As to a) the appellant failed to establish that he was seeking entry as a bona fide entertainer, or performer of "exhibitions" of an "instructive nature". The mere fact of this request for entry for a period of from two to three years casts doubt on his bona fides in this regard, and the vague terms of the document presented by him as a "contract" could inspire no confidence in anyone's mind as to the genuineness of his prospective employment.

As to b) the evidence relating to his prior application for permanent residence in Canada, taken together with his testimony (page 12, Minutes of Inquiry):

Q. What do you intend to do after this undertaking is over?

A. I would like to go back to India; I would do the same job.

Q. Is it your intention to apply for permanent residence in Canada?

A. Not exactly, not at the moment; I don't know what will happen later on.

is sufficient to support the opinion of the Special Inquiry Officer that he was not a bona fide non-immigrant—that he was seeking to enter Canada under the guise of a non-immi grant, but with the real intention of remaining as an immigrant.

It must be held, therefore, that there was evidence before the Special Inquiry Officer to support her opinion, and that

she did not form her opinion contrary to the evidence, or without evidence, nor was it based upon a wrong principle.

In my view, the correctness of the Board's view turns on the question whether the words "in the opinion of a Special Inquiry Officer" were designed, as the Board seems to have thought, to confer on such an officer some special discretion or whether they are merely a reference, in passing, to the fact that it is such an officer who must make the first actual deci sion as to whether a person desiring to enter Canada is not only a person who states facts that would make him an "immigrant" or "non- immigrant" but is actually (bona fide) a person who is what he says he is. In my opinion, the matter is concluded by authority. I can see no distinction between the right of an appellant to have a decision of a Special Inquiry Officer under section 5(p) reviewed by the Immigration Appeal Board and the right of an appellant to have a decision of an Immigration Officer under Regulation 34(3)(f) so reviewed. That provision made it one of the conditions to admittance for permanent resident under Regulation 34(3) that "in the opinion of an immigration officer" the applicant would have been so admitted if he had been examined outside Canada. The Immigra tion Appeal Board had taken the view that the opinion of the Immigration Officer was not sub ject to review, unless it was manifestly wrong, either by the Special Inquiry Officer or the Immigration Appeal Board itself. The Supreme Court of Canada, however, in Gana v. Minister of Manpower and Immigration [19701 S.C.R. 699, decided that such a decision had to be reviewed both by the Special Inquiry Officer and the Board. I am of opinion that the reason ing in that case 10 applies equally to require the Immigration Appeal Board to review a decision of a Special Inquiry Officer under section 5(p).

I am, therefore, of the view that the order referring the matter back to the Board for re- hearing should contain a direction that the Board should reconsider on the evidence the question whether the appellant is a person who is not a bona fide immigrant or non-immigrant within the meaning of section 5(p).

Having regard to the above conclusions, I am of the view that the judgment herein should read as follows:

"The appeal is allowed; the decision of the Immigration Appeal Board dismissing the appellant's appeal from the order of deporta tion made against him on April 26, 1972 is set aside; and the matter is referred back to the Immigration Appeal Board to re-hear the appeal on the basis that

(a) the parties are entitled to adduce evi dence relating to the validity of the deporta tion order;

(b) that the appellant is not restricted, in claiming status as a non-immigrant, to rely ing on the paragraph of section 7(1) of the Immigration Act that was under considera tion before the Special Inquiry Officer; and

(c) that the question as to whether the appellant is a person who was not a bona fide immigrant or non-immigrant within the meaning of section 5(p) of the Immigration Act is to be decided on the evidence."

* * *

THURLOW J. I concur.

* * *

CAMERON D.J.—I concur.

' There is also an application under section 28 of the Federal Court Act but its existence would seem to be academic.

z A reference during the first part of this review to a section or other part of a statute without specifying the statute will be a reference to the Immigration Act. One of the difficulties encountered in interpreting the Immigration Act is that there is no uniformity of drafting. Sometimes a procedural rule is so worded as to create a substantive right. See, for example, section 27(2)(b). Other times, as will appear, the substantive position does not depend on the procedural steps notwithstanding the manner in which the relevant provision is framed.

Every immigration officer can administer oaths (section 10(4)) and is entitled to question a person applying for admission (section 19(2)). A Special Inquiry Officer has the powers of a commissioner under Part I of the Inquiries Act. He can summon witnesses, administer oaths, issue commis sions to take evidence, engage counsel, clerks, stenogra-

phers and other persons and do all other things necessary for a full inquiry (section 11(3)).

4 References hereafter to sections without naming the statute will be references to sections in the Immigration Appeal Board Act.

See, for example, section 67 of the Supreme Court Act, which provides - 1ter alia that "The appeal shall be upon a case to be stated by the parties ... and the case shall set forth the judgment objected to and so much of the plead- ings, evidence ... and documents as is necessary to raise the question for the decision of the Court ...".

6 E.g., appeals from summary convictions under the Criminal Code and tax appeals to the Trial Division of this Court.

7 Compare section 56(5) of the Trade Marks Act, which provides that, on the appeal, evidence "in addition to that adduced before the Registrar" may be adduced.

These conditions are not always insisted upon in modern times. See per Pigeon J. (diss.) in Podlaszecka v. The Minis ter of Manpower and Immigration, (1972) 23 D.L.R. (3d) 331, at page 334.

9 I refrain from expressing any opinion as to the effect that can be given by the Immigration Appeal Board to the evidence that was taken before the Special Inquiry Officer (which evidence is before the Board as part of the "record") where evidence has been adduced before the Board. When no evidence has been adduced, the record is, sometimes, given a certain status by Rule 18. When "further" evidence is adduced before the Board or a member or under section 13, one view might be that the Board comes to the best conclusion it can having regard to all the evidence. This admittedly might give rise to problems. (How does the Board decide a conflict between evidence adduced before the Special Inquiry Officer and evidence adduced before it, for example?) An alternative view would be that, when evidence is adduced by the appellant before the Board, that evidence must be sufficient to demolish the prima facie validity of the deportation order. There are possibly other views. Certainly, it would be well to have the matter settled by the Rules. In the meantime, I find it difficult to believe that the question is often likely to give rise to difficulty as a practical matter. If it does arise, however, it should be resolved in the light of the circumstances in which it arises.

10 See per Spence J. at page 710: "... the existence of the jurisdiction of the Special Inquiry Officer and the Immigra tion Appeal Board leads me to conclude that the whole of the decision of the immigration officer is subject to review and revision despite the use of the opening words of s. 34(3) of the regulations."

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