T-3591-77
Ut Nan Lam (Petitioner)
v.
Minister of Manpower and Immigration and Guy
Malouin (Respondents)
Trial Division, Walsh J.—Montreal, October 24;
Ottawa, November 1, 1977.
Prerogative writs — Mandamus — Immigration — Inquiry
without powers of decision or recommendation re refugee
status — Information collected normally forwarded to deci-
sion-making Consultative Interministerial Committee —
Attorney prevented from pursuing questioning on particular
facet of case at inquiry — Mandamus sought ordering
respondent to permit petitioner to continue deposition —
Immigration Appeal Board Act, R.S.C. 1970, c. I-3, ss. 11, 15,
as amended by S.C. 1973-74, c. 27.
This is a petition for a writ of mandamus to order respondent
Malouin to permit petitioner to continue his deposition con
cerning his application for refugee status. Malouin, an immi
gration officer, had presided over an inquiry to gather informa
tion for the Consultative Interministerial Committee, which
would consider petitioner's application, but had no power to
make a decision or recommendation. During this inquiry,
respondent Malouin decided he had sufficient information on
one particular facet of the case and refused to allow petitioner's
attorney to continue his questioning on it.
Held, the petition is dismissed. Mandamus cannot be issued.
It is not certain that the Committee may decide not to grant
refugee status on the basis of the transcript of the inquiry, but
even if the Committee should not grant it, its decision would
normally be followed by a deportation order which petitioner
could appeal to the Immigration Appeal Board. Moreover,
mandamus will not lie to compel an immigration officer to
admit further evidence in an inquiry being presided over by him
which does not call for any recommendation or decision to be
made by him.
Guay v. Lafleur [1965] S.C.R. 12, applied. Minister of
Manpower and Immigration v. Fuentes [1974] 2 F.C. 331,
applied. Saulnier v. Quebec Police Commission [1976] 1
S.C.R. 572, distinguished. Boulis v. Minister of Manpower
and Immigration [1974] S.C.R. 875, discussed.
APPLICATION.
COUNSEL:
Pierre Duquette for petitioner.
Suzanne Marcoux-Paquette for respondents.
SOLICITORS:
Borenstein, Duquette & Brott, Montreal, for
petitioner.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for judgment
rendered in English by
WALSH J.: This is a petition for a writ of
mandamus to order the respondent Guy Malouin
to permit petitioner to continue his deposition con
cerning his application for refugee status in
Canada and to cease interfering with the normal
work of petitioner's attorney and permit the depo
sition to continue in accordance with the rules of
natural justice. Briefly the facts are that petitioner
applied for the status of refugee in Canada and on
April 9, 1977, commenced his deposition before an
immigration officer. He is Vietnamese and
allegedly lost his citizenship following the fall of
South Vietnam on April 30, 1975. This deposition
would in the normal course of affairs be forwarded
to the Consultative Interministerial Committee
charged with considering the application for
refugee status. Unfortunately one spool of the
evidence was lost and only the first ten pages of
the deposition could be transcribed, and according
ly it was recommenced on the 9th of August, 1977.
At this stage petitioner allegedly could not contin
ue to pay for the attorney who had been represent
ing him, so a Legal Aid attorney was engaged who
sought an adjournment of the inquiry and was
allegedly assured by the immigration officer that
when he had finished his interrogation an adjourn
ment would be allowed to permit the said attorney
to interrogate petitioner further. After consider
able evidence was taken . on August 9, the tran
script being 15 pages in length, the immigration
officer reluctantly adjourned it to September 8. On
that date allegedly the immigration officer refused
to permit petitioner's attorney to ask petitioner
further questions on certain facts which had not
been fully gone into on August 9. The transcript
indicates that considerable discussion took place
between the immigration officer and the attorney
for petitioner, with the immigration officer decid
ing that he had sufficient information already and
refusing to permit further questions on issues
which he considered to have already been fully
answered. After leaving the room the immigration
officer, respondent Guy Malouin, returned and the
following statement was read into the record:
[TRANSLATION] Mr. Lam you and your attorney were duly
informed at the commencement of this declaration that it
concerned the conclusion of the sworn declaration and that the
reason for which we agreed to this second interview was to
introduce new facts only. Your attorney sought to ask questions
on subjects already covered at the last interview, in particular
the question which appears on page 7 at the bottom of the page
and which was as follows: "Did you make an application for
refugee status in Japan?" The reply was no. Therefore I remind
you that we will not continue this sworn declaration unless you
have entirely new facts to bring. In a contrary event this sworn
declaration will be terminated forthwith and sent to the Inter-
ministerial Committee as it stands.
At page 21 of the transcript the immigration
officer says:
[TRANSLATION] Counsellor I am stopping you. The question
was asked on page 8 "This application, was it accepted or
refused?" as concerns his application as a refugee in Japan and
on page 9 the response was "I left Japan while I was awaiting a
reply to this application because I had to leave Japan since my
visa had expired". The subject has been covered. Last time you
spoke for 15 minutes at this table. Today you will not speak for
15 minutes to say nothing. The two subjects have been covered,
that of the status of refugee and that of the application for a
visa for Canada in Japan.
Petitioner's attorney persisted with his question
and the immigration officer continued to refuse to
permit a continuation of the inquiry. It is evident
that there was a strong conflict between them.
While it must be pointed out on the one hand that
any person presiding over an inquiry as in the
present case, or even a judge presiding over a trial
must necessarily have the right at some stage to
intervene to stop repetitious and unnecessary ques
tioning, it is also of course important that a wit
ness and his legal representatives be given every
opportunity to be fully heard and complete all
their proof and arguments. I do not believe that it
is necessary to make a decision in the present case,
however, as to whether petitioner was deprived of
a fair hearing in accordance with the principles of
natural justice, and I do not propose to do so since
I do not believe that mandamus can be issued in
any event.
At the commencement of the inquiry the immi
gration officer read to petitioner the usual state
ment indicating the reason for and effect of the
inquiry. This appears on page 3 of the transcript:
[TRANSLATION] In what capacity are you asking to enter
Canada today; is it as a visitor, for business, as a refugee, or
otherwise?
Answer: As a political refugee.
This statement then follows:
Mr. Lam as you have asked to be considered as a refugee I will
now examine you and receive your declarations and evidence
and present them to the Consultative Interministerial Commit
tee charged with examining applications for status as a refugee
in Canada and who will make a decision in your case. I must
also advise you that the convention relative to the status of
refugees adopted in July 1951 by the United Nations is an
important international document for the protection of
refugees. It contains among others a definition of the term
refugee which reads as follows:
He then read the definition.
It is evident that the immigration officer merely
presides over the inquiry, asking the necessary
questions (although this does not prevent petition
er from being represented by counsel who may also
ask questions and presumably call witnesses) and
then transmits the transcript to the Committee
who makes the decision. He himself makes no
recommendation. The Supreme Court case of
Guay v. Lafleur' appears to be directly in point. In
that case Cartwright J. stated at page 18:
... the maxim "audi alteram partem" does not apply to an
administrative officer whose function is simply to collect infor
mation and make a report and who has no power either to
impose a liability or to give a decision affecting the rights of
parties.
This judgment was discussed and referred to in the
case of Saulnier v. Quebec Police Commission 2 in
which Pigeon J. in distinguishing the Guay v.
Lafleur case stated at page 578:
With respect, I must say that the function of the Commission
is definitely not that of the investigator concerned in Guay v.
Lafleur. That investigator was charged only with collecting
information and evidence. The Minister of National Revenue
could then unquestionably make use of the documentary evi
dence collected, but not of the investigator's conclusions.
' [1965] S.C.R. 12.
2 [1976] 1 S.C.R. 572.
He then refers with approval to the dissenting
judgment of Casey J.A. in the Quebec Court of
Appeal decision in the Saulnier case quoting from
it at page 579:
Appellant has rendered a decision that may well impair if not
destroy Respondent's reputation and future. When I read the
first and fourth considerants and the conclusions of the sixth
recommendation and when I recall that the whole purpose of
these reports is to present facts and recommendations on which
normally the Minister will act the argument that no rights have
been determined and that nothing has been decided is pure
sophistry.
In the present case an examining officer makes
no recommendation whatsoever but merely sub
mits facts to the Interministerial Committee. It is
by no means certain that on the basis of the
transcript of the examination before it that Com
mittee may not decide to grant refugee status to
the petitioner, but even if the Committee does not,
its decision would normally then be followed by a
deportation order which petitioner could appeal to
the Immigration Appeal Board pursuant to the
provisions of the Immigration Appeal Board Act'.
Section 11(1) of that Act reads as follows:
11. (1) Subject to subsections (2) and (3), a person against
whom an order of deportation is 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, if, at
the time that the order of deportation is made against him, he
is
(a) a permanent resident;
(b) a person seeking admission to Canada as an immigrant
or non-immigrant (other than a person who is deemed by
subsection 7(3) of the Immigration Act to be seeking admis
sion to Canada) who at the time that the report with respect
to him was made by an immigration officer pursuant to
section 22 of the Immigration Act was in possession of a
valid immigrant visa or non-immigrant visa, as the case may
be, issued to him outside Canada by an immigration officer;
(c) a person who claims he is a refugee protected by the
Convention; or
(d) a person who claims that he is a Canadian citizen.
The word Convention is defined in section 2 as
"Convention" means the United Nations Convention Relating
to the Status of Refugees signed at Geneva on the twenty-
eighth day of July, 1951 and includes any Protocol thereto
ratified or acceded to by Canada;
3 R.S.C. 1970, c. I-3 as amended by S.C. 1973-74, c. 27.
Even if the appeal is unsuccessful petitioner is
still protected if it is found that execution of a
deportation order would cause unusual hardship
by virtue of section 15(1)(b)(i):
15. (1) Where the Board dismisses an appeal against an
order of deportation or makes an order of deportation pursuant
to paragraph 14(c), it shall direct that the order be executed as
soon as practicable, except that the Board may,
(b) in the case of a person who was not a permanent resident
at the time of the making of the order of deportation, having
regard to
(i) the existence of reasonable grounds for believing that
the person concerned is a refugee protected by the Conven
tion or that, if execution of the order is carried out, he will
suffer unusual hardship, or
(ii) the existence of compassionate or humanitarian con
siderations that in the opinion of the Board warrant the
granting of special relief,
direct that the execution of the order of deportation be stayed,
or quash the order or quash the order and direct the grant or
entry or landing to the person against whom the order was
made.
This procedure was dealt with in some detail by
the Federal Court of Appeal in the case of Minis
ter of Manpower and Immigration v. Fuentes. 4
While petitioner's counsel concedes that this
procedure is available he states that petitioner will
already be at a disadvantage if the Interministerial
Committee has decided against according him
refugee status and the deportation order has been
issued. This argument is disposed of by Pratte J. in
the Fuentes case in which he states at page 334 in
reference to the declaration required by section
11(2) 5 :
4 [1974] 2 F.C. 331.
5 Section 11(2) and (3) reads as follows:
11....
(2) Where an appeal is made to the Board pursuant to
subsection (1) and the right of appeal is based on a claim
described in paragraph (1)(c) or (d), the notice of appeal to
the Board shall contain or be accompanied by a declaration
under oath setting out
(a) the nature of the claim;
(b) a statement in reasonable detail of the facts on which
the claim is based;
(c) a summary in reasonable detail of the information and
evidence intended to be offered in support of the claim
upon the hearing of the appeal; and
(d) such other representations as the appellant deems
relevant to the claim.
This declaration must then, and this is the second condition, be
considered by a "quorum of the Board". If, after considering
the declaration, the Board concludes that the claim is not a
serious one, it must direct that the deportation order be execu
ted as soon as practicable; the right of appeal is then lost. If,
however, consideration of the declaration indicates to the Board
that the claim is a serious one, "it shall allow the appeal to
proceed".
In the footnote he states:
And not, it must be noted, on the basis of the facts disclosed
by the hearing conducted by the Special Inquiry Officer, or
other facts which may be established in any hearing the Board
may hold.
If it allows the appeal to proceed then it
becomes an appeal from a deportation order based
as indicated by section 11(1) on any grounds that
involve a question of law or fact or of mixed law
and fact. By virtue of section 7 of the Act, at the
hearing of the appeal evidence may be received
and it is at this stage that petitioner would have a
full opportunity to present de novo his arguments
for being granted refugee status. The fact that a
decision of the Immigration Appeal Board to
invoke section 15(1)(b) is given considerable
weight by the Supreme Court appears from its
judgment in the case of Boulis v. Minister of
Manpower and Immigration 6 in which Abbott J.
stated at page 885:
Parliament has imposed an onerous as well as sensitive duty
on the Board to deal with claims for political asylum and to
apply compassionate or humanitarian consideration to claims of
lawful entry to Canada. The judicialization of power to grant
entry in such cases necessarily involves the Board in difficult
questions of assessing evidence, because its judgment on the
reasonableness of grounds of belief that a deportee will be
punished for political activities or will suffer unusual hardship
(the italics are mine) if the deportation is carried out, involves
it in estimating the policies and reactions of foreign governmen
tal authorities in relation to their nationals who claim asylum in
(3) Notwithstanding any provision of this Act, where the
Board receives a notice of appeal and the appeal is based on
a claim described in paragraph (1)(c) or (d), a quorum of the
Board shall forthwith consider the declaration referred to in
subsection (2) and, if on the basis of such consideration the
Board is of the opinion that there are reasonable grounds to
believe that the claim could, upon the hearing of the appeal,
be established, it shall allow the appeal to proceed, and in
any other case it shall refuse to allow the appeal to proceed
and shall thereupon direct that the order of deportation be
executed as soon as practicable.
6 [ 1974] S.C.R. 875.
Canada when unable to establish a claim to entry under the
regular prescriptions. The Parliament of Canada has made it
clear, in my opinion, that the granting of asylum should rest not
on random or arbitrary discretion under s. 15(1)(6)(i) but
rather that a claim to the Board's favourable interference may
be realized through evidence upon the relevance and cogency of
which the Board is to pronounce as a judicial tribunal. The
Board has thus been charged with a responsibility which has
heretofore been an executive one.
In conclusion I repeat that I do not find that
mandamus will lie to compel immigration officer
Guy Malouin to admit further evidence in the
inquiry being presided over by him which does not
call for any recommendation or decision to be
made by him.
The petition will therefore be dismissed with
costs.
ORDER
Petitioner's petition for mandamus is dismissed
with costs.
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.