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. A-348-75
Sultan Ali Wazir Ali (Applicant) v.
Minister of Manpower and Immigration (Respondent)
Court of Appeal, Jackett C.J., Urie J. and MacKay D.J.—Toronto, August 5 and 6, 1975.
Judicial review—Citizenship and immigration—Deporta- tion—Document purporting to be a section 25 direction— Whether proof of Ministerial authority—Whether proof that signing party within that authority—Immigration Act, R.S.C. 1970, c. 1-2, ss. 2, 14, 15, 22, 23, 25-27 and 60—Immigration Inquiries Regulations, ss. 6, 7(b).
Applicant claims that a document purporting to be a section 25 direction is deficient in that it lacks (1) proof of authority from the Minister for someone to act for the "Director"; (2) proof that the signing party comes within such authority.
Held, the application is dismissed. The party purports to sign "for" the Director, and until rebutted, there is a presumption that he had the authority that he purported to exercise. What was involved was an administrative departmental inquiry, and there is at least a prima facie presumption that the Special Inquiry Officer knew who had appropriate authority, and would not have proceeded until he had a proper direction. When section 25 is read with the definition of Director, it authorizes such action if the official was authorized by the Minister to act "for" the Director. Under section 60, appli cant's claim can be argued only by the Minister, or someone acting for him, or Her Majesty.
Ramjit v. Minister of Manpower and Immigration [1976] 1 F.C. 184, distinguished.
JUDICIAL review. COUNSEL:
J. P. French for applicant. G. R. Garton for respondent.
SOLICITORS:
Hughes, Amys, Toronto, for applicant. Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment of the Court delivered orally in English by
JACKETT C.J.: After this section 28 application had been fixed for hearing at Toronto on August
5, 1975—but some days prior to that day—a consent to judgment setting aside the deportation order attacked by that section 28 application was filed in the Court but, as the Court is of the view that it cannot give such a judgment based merely on a consent, and as it was not apparent to the Court on the face of the record that the deporta tion order should be set aside, counsel were informed that the matter would have to come on for hearing at the time and place originally fixed.
When the matter came on for hearing, it appeared that the consent to judgment was based on the view that the matter was governed by this Court's decision in Ramjit v. The Minister of Manpower and Immigration [[1976] 1 F.C. 184] in which judgment was delivered from the Bench at Toronto on June 20, 1975.
After hearing counsel on the point in question, the Court concluded that the point on which the Ramjit case was decided had no application in this case and declined to give judgment based on the consent. The applicant's counsel was thereupon, at his request, given further time to prepare argu ment on other aspects of the case. Such further argument was heard this morning and counsel for the respondent was not required to, reply thereto.
These reasons have been prepared for the pur pose of explaining why, in our view, the Ramjit case has no application in this case.
By way of introduction, it should be remem bered that a Special Inquiry Officer may make a deportation order (see section 27 of the Immigra tion Act) at the conclusion of an inquiry following:
(a) a section 22 report (see section 23(2)),
(b) an arrest under section 14 or 15 (see section 24), or
(c) a section 18 report (see section 25);
but that, while an inquiry following a section 22 report or a section 14 or 15 arrest must be held as a matter of course, the statute only authorizes the holding of an inquiry following the making of a section 18 report where the "Director" considers "that an inquiry is warranted" and, as a result,
takes action to "cause an inquiry to be held". This is the effect of section 25, which reads as follows:
25. Subject to any order or direction by the Minister, the Director shall, upon receiving a written report under section 18 and where he considers that an inquiry is warranted, cause an inquiry to be held concerning the person respecting whom the report was made. R.S., c. 325, s. 26.
Section 25 must be read with the definition of "Director" in section 2, which reads as follows:
"Director" means the Director of the Immigration Branch of the Department of Manpower and Immigration or a person authorized by the Minister to act for the Director;
It is also to be remembered that, while the "inquiry" contemplated by section 25 is an inquiry by an administrative officer into a matter which must be investigated to implement the prohibitory aspects of the Immigration Act, such inquiry must be carried on in accordance with certain provisions of that Act (sections 26 and 27(1)) and regulations made by the Minister under section 58 of the Act, and that such regulations require inter alia that the section 25 direction be made in writing (regulation 6) and that such direction be filed as an exhibit at the commencement of the inquiry (regulation 7(b))'.
Finally, it is to be remembered that, in both the Ramjit case and this case, the matter before this Court is a proceeding under section 28 of the Federal Court Act, whereby a person against whom a deportation order has been made is attacking the validity of that order and that the basic rule is that the onus of proof of facts—where they are necessary for his attack—is on the attack er. (This onus only becomes of consequence when an attack depends upon a fact that has not been established on the material otherwise before this Court in the section 28 proceeding.) This onus is not to be confused with the onus in the inquiry before the Special Inquiry Officer of establishing facts sufficient to support a deportation order. In an inquiry following a section 22 report, the burden of proving that he is not prohibited from coming into Canada is on the person concerned (section 26(4)) whereas a deportation order can probably not be made following an inquiry ini tiated by a section 18 report unless the Special
The regulations in question—the Immigration Inquiries Regulations—were made when the present sections 18 and 25 of the Immigration Act were sections 19 and 26 respectively.
Inquiry Officer has found "evidence considered credible or trustworthy by him" (section 26(3)) of all the facts necessary to support a deportation order.
Turning to the Ramjit case, the reasons for judgment in that case read as follows:
In our opinion the document marked "Exhibit A", which appears in the record before us, does not correspond to what is described in the transcript of proceedings as being the direction pursuant to which the inquiry was being held and which was then read. As the report of the inquiry contains no note of the filing as "Exhibit A" of the direction so read, it does not appear to us to be established either that the document marked "Exhibit A" was the direction pursuant to which the inquiry was held or that Rule 7(b) of the Immigration Inquiries Regulations was complied with.
Moreover, in our opinion, nothing in the record shows that the person who issued the direction that was read at the inquiry was the Director of Immigration or a person authorized by the Minister to act for the Director of Immigration.
The deportation order is therefore set aside.
What that says, as we understand it, is that it did not appear to the Court in that case that the inquiry was preceded by a direction that satisfied the requirements of section 25. 2
We do not read the final paragraph of the Ramjit reasons as making it a ground of the decision that the omission from the "record" of the inquiry of something to show that the person who issued the direction had authority to do so, of itself, invalidated the inquiry. In our view, whether such person had that authority is a question of fact that, in an appropriate case, can be made the subject of evidence in this Court. This, however, is not a matter that has to be decided on this applica tion although our understanding is that the Court has, in other cases, received such evidence.
Turning to the relevant facts in this matter, during the early stages of the inquiry, a document purporting to be a section 25 direction was made
2 In any event, as we understand it, such a direction had not been made an exhibit at the inquiry and, in view of the requirements of section 7(b) of the Immigration Inquiries Regulations, this omission could, in our view, properly be regarded as negating any presumption that might otherwise arise that the inquiry had been held in accordance with a proper direction.
an "exhibit" and the only defects argued against it are based on the fact that the document in ques tion was signed as follows:
D. Lalonde
Assistant Director General (Immigration Operations), Ontario
Region
For Director of Immigration Branch Department of Manpower and Immigration
Unlike the Ramjit case, we have here as an "exhibit" at the inquiry the "direction" pursuant to which the inquiry was held. What seems to be put forward as being deficient in the direction is:
(a) a lack of any proof of an authority from the minister for some person to act for the "Director of the Immigration Branch of the Department of Manpower and Immigration" as contemplat ed by the definition of "Director",
and
(b) proof that the person who signed the direc tion fell within that authority.
The first answer to that attack, in our view, is that, on the face of the direction, the person who signed it purports to do so "for" the Director of the Immigration Branch and, in accordance with the ordinary rules regarding departmental administration, until such time as it is rebutted, there is a presumption that he had the authority that he purported to exercise. In this case, we think that there is the supporting fact, that what was involved was an administrative departmental inquiry and that there is at least a prima facie presumption that the Special Inquiry Officer knew who had, and who had not, appropriate authority and that he would not have proceeded with an inquiry until he had a proper direction.'
The matter does not, however, rest there as section 60(1) of the Immigration Act would seem to have dealt expressly with how documents pur -
3 Indeed, the Special Inquiry Officer stated, when putting the direction in as "exhibit", that it was made "as authorized by section 25".
porting td have been made under the Act are to be considered. 4 The relevant words of section 60(1) read as follows:
60. (1) Every document purporting to be a ... document over the name in writing of the ... person authorized under this Act to make such document is, in any ... proceeding under or arising out of this Act..., evidence of the facts contained therein, without proof of the signature or the official character of the person appearing to have signed the same, unless called in question by the Minister or some other person acting for him dr Her Majesty.
Here we have a document purporting to show that an immigration official acting "for" the Director of the Branch has caused an inquiry to be held as contemplated by section 25, and when section 25 is read with the definition of "Director", it authorized such action if the official was author ized by the Minister to act "for" the Director. In our view, the legislation has adequately manifested by section 60 that the point taken here on behalf of the applicants cannot be taken except by the Min ister or some person acting for him or Her Majesty.
In the circumstances, the section 28 application will be dismissed.
4 Section 60(1) reads as follows:
60. (1) Every document purporting to be a deportation order, rejection order, warrant, order, summons, direction, notice or other document over the name in writing of the Minister, Director, Special Inquiry Officer, immigration offi cer or other person authorized under this Act to make such document is, in any prosecution or othèr proceeding under or arising out of this Act or the Immigration Appeal Board Act, evidence of the facts contained therein, without proof of the signature or the official character of the person appearing to
' have signed the same, unless called in question by the Minister or some other person acting for him or Her Majesty.
5 Which is, in effect, an attack on the "official character of the person appearing to have signed" the direction as a person who falls within the definition of "Director".
 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.