A-6-78
Musafau Oloko (Petitioner)
v.
Canada Employment and Immigration and Gilles
Perron, Special Inquiry Officer (Respondents)
and
Attorney General for Canada (Mis -en-cause)
Court of Appeal, Pratte, Ryan and Le Dain JJ.—
Montreal, February 20, 22 and March 13, 1978.
Judicial review — Immigration — Application for minis
terial permit made during course of special inquiry — New
humanitarian reasons, not yet considered — Special Inquiry
Officer refusing to adjourn special inquiry — Whether or not
Special Inquiry Officer's deportation order invalid because of
this refusal to adjourn — Immigration Act, R.S.C. 1970, c.
I-2, ss. 2, 8, 67 — Immigration Regulations, SOR/73-20, ss.
3D, 3G — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10,
s. 28.
Applicant attacks the deportation order made against him on
the ground that the Special Inquiry Officer's refusal to adjourn
the inquiry to allow applicant's case to be considered again for
a Minister's permit renders the order invalid. New circum
stances, of a humanitarian nature and not yet considered, had
arisen during an adjournment of the special inquiry.
Held, (Le Damn J. dissenting) the appeal is dismissed for
reasons given in the case of Louhisdon Dominique (see supra,
page 589).
Per Le Damn J. dissenting: The Supreme Court's reasoning in
Ramawad [1978] 2 S.C.R. 375 applies to an application for a
Minister's permit made in the course of an inquiry. There is as
much of a "substantive right" to obtain a decision as to whether
the Minister's permit will be granted as in the situation in
Ramawad. Both decisions are discretionary and a favourable
answer may be regarded as a matter of "privilege", but the
right in each case is the right to have one's application con
sidered and dealt with. The power to issue a Minister's permit
was conferred at least in part for the benefit of persons seeking
to enter or remain in the country and not as a power to be
exercised only on a Minister's initiative. A person must not be
effectively prevented by action of the Immigration authorities
from having an application for a Minister's permit considered
before it is too late. When a Special Inquiry Officer refuses to
adjourn to permit a case to be considered for a Minister's
permit on the ground that the circumstances are not such as
would justify the issue of a permit, or mistakenly, that the
circumstances have already been considered by the Minister,
the Special Inquiry Officer in effect usurps the jurisdiction of
the Minister.
Ramawad v. Minister of Manpower and Immigration
[1978] 2 S.C.R. 375, referred to.
APPLICATION for judicial review.
COUNSEL:
Charles Spector for petitioner.
Roméo Léger, Q. C., for respondents.
SOLICITORS:
Chaikelson, Spector & Shore, Montreal, for
petitioner.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for judgment
rendered in English by
PRATTE J.: This section 28 application is direct
ed against the deportation order made against the
applicant on January 5, 1978.
The only serious argument put forward in sup
port of the application is that the Special Inquiry
Officer erred in law and, as a consequence, lost
jurisdiction in the matter when, before concluding
the inquiry, he rejected the applicant's request that
the matter be referred to the Minister in order for
him to determine whether to issue a permit, under
section 8 of the Act, authorizing the applicant to
remain in Canada. I have stated in my reasons for
judgment in the case of Louhisdon Dominique
(supra, page 589) why such an argument must be
rejected.
For those reasons, I would dismiss the
application.
* * *
RYAN J.: I concur.
* * *
The following are the reasons for judgment
rendered in English by
LE DAIN J. (dissenting): I have had the advan
tage of reading the reasons of my brother Pratte in
the Louhisdon Dominique case (supra, page 589),
but I regret that I am unable to agree with the
conclusion reached by him.
The applicant in this case was admitted into
Canada as a non-immigrant in the category of
tourist in August, 1973. He was later given a
non-immigrant status as a student, and this status
was prolonged by several extensions until Septem-
ber 30, 1977. In that month he was arrested and
detained under the authority of section 15 of the
Immigration Act as a person suspected of being
one described in section 18(1)(e) (viii) of the Act—
that is, one who had remained in Canada by
reason of false information given by himself. An
inquiry pursuant to section 24 of the Act was
commenced on September 27, 1977. During the
inquiry evidence was adduced that while the appli
cant was a student in Canada he had worked
without a permit for three employers for varying
periods and that on the occasion of applications for
extension of his student status he had been asked
the questions, "Are you presently working?" and
"Have you worked since your arrival in Canada?",
and that he had answered "No" to both questions.
It was established that the applicant was married,
that his wife and a child born in Canada were with
him in Canada, and that his wife, who was not
strong, was expecting another child. The applicant
took the position, as I understood his testimony,
that he had only worked when it was necessary for
him to do so to support his family, that he was not
working when he was asked the question "Are you
presently working", and that he could not recall
having been asked the question, "Have you worked
since your arrival in Canada". He testified that he
had only a few months to complete his course of
studies leading to qualification as a real estate
evaluator, and that it was his intention upon com
pletion of his studies to return to Nigeria to work
there.
On October 12, 1977, the inquiry was adjourned
at the request of the applicant in order that his
case might be considered on a humanitarian basis
by another officer. The purpose of this adjourn
ment was to permit the applicant to seek a Minis
ter's permit under the authority of section 8 of the
Act. To this end the application was examined on
October 26, 1977 by Mr. Therrien, and as a result
of this examination it was decided that the appli
cant's case was not one for humanitarian consider
ation. On December 16, 1977, before the resump
tion of the inquiry, the applicant's wife gave birth
to a premature baby weighing little more than two
pounds. When the inquiry resumed on January 5,
1978, counsel for the applicant requested that
further consideration be given to the humanitarian
aspects of the applicant's case in view of the
premature birth and the health of the wife and
child. The request was put to the Special Inquiry
Officer as follows:
... I would submit that since the examination by Mr. Therrien
on October 26, 1977, there are further humanitarian grounds
perhaps more serious than ever for allowing Mr. Oloko to
remain here at least until his wife and his infant daughter are
healthy enough to return to the country of origin. He has a few
months to complete his studies in Canada and it would be most
... if he would not be allowed to remain at least for several
more months. I would submit perhaps these further humani
tarian grounds should be submitted to another officer other
than Mr. Therrien who did not seem interested in the health of
Mr. Oloko's family.
The applicant himself also requested an
adjournment for this purpose. The request was
refused by the Special Inquiry Officer, who made
the following statement:
Concerning your request, I have to add that even though if Mr.
Therrien was the officer who took the information concerning
the consideration for humanitarian grounds, the decision on
that was not his but was from a higher level at the Director's
office. It has been decided, knowing the situation of health
condition of your wife and the circumstances of your particular
case concerning the achievement of your educational career and
having reviewed all that, it has been decided not to consider
humanitarian grounds and as these humanitarian aspects are
not pertinent to the matter of the inquiry, itself which is to be
held specifically and directly under the Immigration Act, I
have to render a decision according to the particular circum
stances with the light of the requirements of the Immigration
Act and its Regulations.
After summing up the evidence the Special
Inquiry Officer rendered a decision that the appli
cant was a person described in section
18 (1) (e) (viii) of the Act in that he had remained
in Canada by reason of false information given by
himself, and he ordered that the applicant be
deported.
The applicant attacks the deportation order on
the ground that it was rendered invalid by the
Special Inquiry Officer's refusal to adjourn the
inquiry to permit the applicant's case to be con
sidered again for a Minister's permit in the light of
the new circumstance created by the premature
birth of the child. In support of this contention the
applicant invokes the decision of the Supreme
Court of Canada in the Ramawad case'. Before
considering the facts and reasons in that case it is
well to say something about the nature of a Minis
ter's permit.
Section 8 of the Immigration Act 2 confers a
discretionary authority upon the Minister of
Employment and Immigration to issue a permit
authorizing any person to enter Canada, or, being
in Canada, to remain therein for a specified period
not exceeding twelve months. The power to issue
or cancel a Minister's permit was considered by
the Supreme Court of Canada in the Hardayal
case 3 , where it was held to be an administrative
power not required to be exercised on a judicial or
quasi-judicial basis. The Court had before it an
affidavit of the Deputy Minister of the Depart
ment of Manpower and Immigration in which it
was said that the issuance - of Minister's permits
introduced an element of flexibility and
humanitarianism into the administration of immi
gration law, and Spence J., delivering the reasons
of the Court, spoke of the power [at page 478] as
"only used in exceptional circumstances and chief
ly for humanitarian purposes" and as "necessary
to give flexibility to the administration of the
immigration policy". By an authorization or dele-
Ramawad v. The Minister of Manpower and Immigration
[1978] 2 S.C.R. 375.
2 Section 8 of the Immigration Act reads as follows:
8. (1) The Minister may issue a written permit authoriz
ing any person to enter Canada or, being in Canada, to
remain therein, other than
(a) a person under order of deportation who was not
issued such a written permit before the 13th day of
November 1967, or
(b) a person in respect of whom an appeal under section
17 of the Immigration Appeal Board Act has been taken
that has not been successful.
(2) A permit shall be expressed to be in force for a
specified period not exceeding twelve months.
(3) The Minister may at any time, in writing, extend or
cancel a permit.
(4) The Minister may, upon the cancellation or expiration
of a permit, make a deportation order respecting the person
concerned.
(5) The Minister shall submit to Parliament within thirty
days of the commencement of the first session of Parliament
in each year a report showing all permits, with particulars
thereof, issued during the preceding calendar year.
3 The Minister of Manpower and Immigration v. Hardayal
[1978] 1 S.C.R. 470.
gation pursuant to section 67 of the Act 4 and the
former definition of "Director" in section 2
thereof Immigration Officers-in-Charge in the
various Immigration Centres were, among others,
empowered to exercise the Minister's author
ity under section 8 6 . The practical effect of this
delegation has been that there have been officers
in the various Immigration Centres to whom an
application for a Minister's permit could be
referred in the course of an inquiry without undue
delay or disruption of the inquiry process. It has
been our observation that an adjournment has
quite often been granted for such purpose. The
present case is an example. The question is wheth
er there is not merely a discretion but an obliga
tion to adjourn when an application is made in the
course of an inquiry to have the case considered
for a Minister's permit. More specifically, the
question is whether that is a necessary implication
of the decision and reasoning in the Ramawad
case.
In the Ramawad case the employment visa of
the appellant had ceased to be valid because he
had changed employers without authorization, and
he sought a new employment visa. The grant of an
employment visa under these circumstances would
have required a waiver by the Minister, pursuant
to paragraph 3G(d) of the Immigration Regula-
4 67. The Minister may authorize the Deputy Minister or the
Director to perform and exercise any of the duties, powers and
functions that may be or are required to be performed or
exercised by the Minister under this Act or the regulations and
any such duty, power or function performed or exercised by the
Deputy Minister or the Director under the authority of the
Minister shall be deemed to have been performed or exercised
by the Minister.
5 "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;
The new definition of "Director", enacted by S.C. 1976-77, c.
54, s. 74(2), Schedule, Item 5, proclaimed in force effective
August 15, 1977 (SI/77-186, October 12, 1977, Canada
Gazette, Part II, p. 4433) reads:
"Director" means any person authorized by the Minister to
act as the Director for the purposes of this Act or any
provisions thereof;
6 See Instruments I-3 and I-7, The Canada Gazette, Part I,
October 30, 1976, pp. 5370 and 5372.
tions, Part 1 7 , of the prohibition in paragraph
3D(2)(6) 8 thereof against the issue of a visa to one
who has previously violated the conditions of a
visa. The Special Inquiry Officer took the position
that the appellant was not entitled to an employ
ment visa and that there were no special circum
stances justifying a waiver of the prohibition. The
Supreme Court held that in doing so he had
invalidly exercised the authority of the Minister
and that this invalid decision vitiated the deporta
tion order. Pratte J., delivering the reasons of the
Court, held that the appellant had a right to have
a decision from the Minister as to whether the
prohibition should be waived because of special
circumstances and that in purporting to exercise
the Minister's authority the Special Inquiry Offi
cer had denied the appellant this right. He further
held that once an application was made for a
decision by the Minister under paragraph 3G(d)
the Special Inquiry Officer was obliged to adjourn
the inquiry until the Minister had dealt with the
application. Because of their implications for the
case of a Minister's permit I quote the following
passages from the reasons of Pratte J. [at pages
383-384]:
Under para. 3G(d), the appellant was entitled to have the
Minister rule as to the "existence of special circumstances";
this was a substantive right of the appellant which flowed to
him directly from the Regulations and which the Special
Inquiry Officer had no authority to abrogate whether directly
or indirectly.
In purporting to exercise the Minister's authority under para.
3G(d) of the Regulations and in proceeding immediately there
after to issue a deportation order against the appellant, the
Special Inquiry Officer effectively denied the appellant his
right to have the Minister decide whether the special circum
stances envisaged in para. 3G(d) existed.
' Paragraph 3G(d) of the Regulations provides:
3G. Notwithstanding subparagraph 3D(2)(a)(i) and para
graph 3D(2)(b), an employment visa may be issued ...
(d) to a person in respect of whom subparagraph
3D(2)(a)(i) and paragraph 3D(2)(b) should not, in the
opinion of the Minister, be applied because of the existence
of special circumstances.
8 Paragraph 3D(2)(b) of the Regulations provides:
3D....
(2) Where an issuing officer receives an application for an
employment visa, he shall issue the employment visa unless
(b) the applicant has violated the conditions of any
employment visa issued to him within the preceding two
years.
To hold that the invalidity of the decision of the Special
Inquiry Officer as to the existence of special circumstances
under para. 3G(d) has no effect on the validity of the deporta
tion order would lead one to the untenable conclusion that a
Special Inquiry Officer could, through an improper exercise of
the Minister's authority under para. 3G(d), nullify the right of
a non-immigrant under said paragraph by preventing the Min
ister from exercising the discretion with which he was
entrusted.
In my view, the making of an application seeking the opinion
of the Minister pursuant to para. 3G(d) has the effect of
suspending the authority of the Special Inquiry Officer to issue
a deportation order, and the only possible course of action for
the Special Inquiry Officer under such circumstances is to
adjourn making his decision until such time as the Minister has
disposed of the application.
With great respect I am unable to see how this
reasoning does not apply to an application in the
course of an inquiry that a case be considered for a
Minister's permit. There is in my opinion as much
of a "substantive right" to obtain a decision as to
whether a Minister's permit will be granted in a
particular case as there is to obtain the Minister's
decision as to whether a failure to comply with the
conditions of an employment visa should be waived
on the ground of special circumstances. Both deci
sions are discretionary in nature and a favourable
answer may be regarded as a matter of "privi-
lege", but the right in each case is the right to have
one's application considered and dealt with, one
way or another. The power to issue a Minister's
permit was conferred, it seems to me, at least in
part for the benefit of persons seeking to enter or
to remain in the country and not as a power to be
exercised only on the Minister's initiative. I think
it must have been intended that it should be
possible for a person seeking to enter or remain in
the country to apply for a Minister's permit and to
receive a decision from the Minister or a person
authorized to exercise his authority. I would take
the view that a person must not be effectively
prevented by action of the immigration authorities
from having an application for a Minister's permit
considered before it is too late—that is, before an
order of deportation is pronounced against him. It
is true that an application for a Minister's permit
may be made outside the country before a person
seeks admission. There may also be an opportunity
for a person who is in the country and who seeks to
remain therein to apply for a Minister's permit
before deportation proceedings are commenced.
But there will often be circumstances in which a
person has had no reason to suspect the possible
need of a Minister's permit, and for whom the first
effective opportunity to apply for such a permit
arises in the course of an inquiry. It may not be
until the conclusion of an inquiry that a person
concerned becomes aware of the need to seek a
Minister's permit. It may not be until he sees the
nature of the evidence adduced and hears the
Special Inquiry Officer's summing up that he real
izes that his case is one calling for the humani
tarian consideration permitted under section 8 of
the Act.
In my opinion, when a Special Inquiry Officer
refuses to adjourn an inquiry to permit a case to be
considered for a Minister's permit on the ground
that the circumstances are not such as would
justify the issue of a permit, or on the ground,
mistakenly, that the circumstances have already
been fully considered by the Minister, or a person
authorized to exercise his powers under section 8,
the Special Inquiry Officer in effect usurps the
discretion of the Minister, as he was held to have
done in the Ramawad case. In the present case the
Special Inquiry Officer was wrong in his statement
that the circumstances which might justify con
sideration on a humanitarian basis had been fully
considered. Obviously the circumstance of the pre
mature birth, and its bearing on whether, as a
humanitarian matter, the applicant should be
required to leave the country immediately, could
not have been considered when the applicant was
examined by Mr. Therrien. The applicant was
entitled in my view to have consideration given to
whether he should be granted a Minister's permit
in the light of this new circumstance. In my
respectful opinion it is a clear implication of the
Ramawad decision that when an application is
made in the course of an inquiry for the consider
ation of a case on a humanitarian basis, in other
words, for a Minister's permit, and there has not
been a previous refusal to grant such a permit,
based on the circumstances existing at the time the
application is made, the authority of the Special
Inquiry Officer to proceed with the inquiry is
suspended until the application has been dealt
with.
For these reasons I would allow the section 28
application and set aside the deportation order
pronounced on January 5, 1978.
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.