A-253-78
Barbara Ann Murray (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
Court of Appeal, Jackett C.J., Heald J. and
MacKay D.J.—Toronto, September 15, 1978.
Judicial review — Immigration — Deportation order —
Jurisdiction — Adjudicator not granting adjournment after
drawing applicant's attention to Minister's power to grant a
permit — Whether or not Adjudicator had jurisdiction to
make deportation order — Whether or not Adjudicator erred
in law in deciding to make deportation order rather than
issuing a departure notice — Immigration Act, 1976, S.C.
1976-77, c. 52, ss. 32(6), 37(1) — Federal Court Act, R.S.C.
1970 (2nd Supp.), c. 10, s. 28.
This is a section 28 application to set aside a deportation
order that was made against the applicant who was neither a
Canadian citizen nor a permanent resident and who entered
Canada as a visitor and remained after ceasing to be a visitor.
The sole ground for contending that the Adjudicator had no
jurisdiction to make a deportation order or to issue a departure
notice is that, having had her attention drawn to section 37(1)
of the Immigration Act, 1976 concerning the Minister's power
to grant a permit, the Adjudicator should have granted an
adjournment of the inquiry to enable the applicant to apply for
such a permit. A further question is whether the Adjudicator
erred in law in deciding to make a deportation order rather
than to issue a departure notice, in view of section 32(6) of the
1976 Act.
Held, the application is dismissed. It has been decided in the
Louhisdon case that the Ramawad case does not apply to such
a case as this. Although that decision was decided under the old
Act, there is no point of distinction between the old Act and the
1976 Act governing the decision of this application. From the
point of view of sound judicial administration, rather than stare
decisis, such a recent decision of this Court which is directly on
point should be followed. The decision not to issue a departure
notice was based, largely if not entirely, on the fact that the
Adjudicator was not satisfied that the applicant would leave
Canada. This was a condition precedent to issuing a departure
notice by virtue of section 32(6)(b), and the requirement in
section 32(6)—having regard to all circumstances in this
case—has no application.
Louhisdon v. Employment and Immigration Canada
[1978] 2 F.C. 589, followed. Ramawad v. Minister of
Manpower and Immigration [1978] 2 S.C.R. 375,
distinguished.
APPLICATION for judicial review.
COUNSEL:
C. Roach for applicant.
B. Segal for respondent.
SOLICITORS:
Charles Roach, Toronto, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
delivered orally in English by
JACKETT C.J.: This is a section 28 application to
set aside a deportation order that was made
against the applicant who was neither a Canadian
citizen nor a permanent resident and who had
entered Canada as a visitor and remained there
after ceasing to be a visitor.
The sole ground for contending that the
Adjudicator had no jurisdiction to either make a
deportation order or to issue a departure notice in
this case is that, having had her attention drawn to
the provision in the Immigration Act, 1976, S.C.
1976-77, c. 52, under which the Minister had
power to grant a permit (section 37(1)), the
Adjudicator should have granted an adjournment
of the inquiry to enable the applicant to apply for
such a permit.' For this proposition, reliance was
placed on the decision of the Supreme Court of
Canada in Ramawad v. Minister of Manpower
and Immigration [1978] 2 S.C.R. 375.
In my view, as far as this Court is concerned, it
has been decided in the Louhisdon case [1978] 2
F.C. 589 that the Ramawad case does not apply to
a case such as this. In that case, there was an
actual application during the course of the inquiry
for an adjournment to afford an opportunity to
apply for a Minister's permit. It is true that that
case was under the old Act, but I can see no point
of distinction between the old Act and the 1976
Act, which governs the decision of this application.
In my view, such a recent decision of this Court,
which is directly in point, should be followed even
if, had the members of this Division constituted
' An alternative to this proposition set out in the applicant's
memorandum that the Adjudicator purported to exercise the
Minister's discretion with reference to the granting of such a
permit, was not pressed on the hearing of the section 28
application and there would seem to be no basis in the record
for it.
the Division of the Court by whom it was decided,
they might have decided it differently. In saying
this, I am not applying the principle of stare
decisis, which, in my view, does not apply, as such,
in this Court. I am following what, in my view, is
the proper course to follow from the point of view
of sound judicial administration when a court is
faced with one of its recent decisions. It would, of
course, be different if the recent decision had been
rendered without having the point in mind or,
possibly, if the Court were persuaded that there
was an obvious oversight in the reasoning on which
it was based.
I should add, however, that, in my view, the
Ramawad decision would have no application to
the present problem even if the Louhisdon case
had not been rendered. In the Ramawad case,
there was an outstanding application, at the time
of the inquiry, which, as the Supreme Court held,
could not be disposed of without first putting it
before the Minister; and the Special Inquiry Offi
cer, instead of allowing it to be put before the
Minister, undertook himself to exercise the Minis
ter's powers in relation to the matter. In this case,
there was no application to the Minister for a
permit (and, in so far as I can ascertain, no
assumption by the Adjudicator of the Minister's
power to deal with such an application. I find
nothing in the decision of the Supreme Court of
Canada that lays it down that, whenever a person
seeking to come into Canada is the subject of an
inquiry, or whenever a person, being in Canada, is
the subject of deportation proceedings, the presid
ing officer must interrupt the inquiry proceedings
to permit him to apply for a Minister's permit if he
has not already done so. Such a rule of law would,
in my view, create such a fundamental and disrup
tive change in the processing of these matters that
I am not prepared to infer it in the absence of an
express statutory provision or a clear pronounce
ment in a decision that I feel bound to follow.
The remaining question is whether the
Adjudicator erred in law in deciding to make a
deportation order rather than to issue a departure
notice, having regard to section 32(6) of the 1976
Act, which error is said, by the applicant's memo
randum, to be disclosed when the Adjudicator
said:
Miss Murray, I have considered very carefully the evidence and
submissions made in connection with the type of order or notice
should be made. I also took into consideration the existence of
your Canadian born child. However, an Adjudicator cannot
take humanitarian and compassionate consideration into
account on making this type of decision.
Section 32(6) reads:
32. ...
(6) Where an adjudicator decides that a person who is the
subject of an inquiry is a person described in subsection 27(2),
he shall, subject to subsections 45(1) and 47(3), make a
deportation order against the person unless, in the case of a
person other than a person described in paragraph 19(1)(c),
(d), (e), (J) or (g) or 27(2)(c), (h) or (i), he is satisfied that
(a) having regard to all the circumstances of the case, a
deportation order ought not to be made against the person,
and
(b) the person will leave Canada on or before a date speci
fied by the adjudicator,
in which case he shall issue a departure notice to the person
specifying therein the date on or before which the person is
required to leave Canada.
The passage relied on, in this connection, when
read in context, related to whether or not the
Adjudicator had power to relieve against taking
some action to ensure that the applicant would
leave the country. This appears from a somewhat
longer passage of which the passage relied on is a
part, viz.:
Miss Murray, I have considered very carefully the evidence and
submissions made in connection with the type of order or notice
should be made. I also took into consideration the existence of
your Canadian born child. However, an Adjudicator cannot
take humanitarian and compassionate consideration into
account on making this type of decision. The issuance of a
Minister's permit is the prerogative of the Minister. And
apparently, he has not issued you a Minister's permit. So,
because I have found you to be in violation of the Immigration
Act, I have no authority to allow you to remain in Canada.
The longer passage is followed immediately by a
passage reading:
In making this decision, I must take two major factors into
consideration. First of all, the circumstances surrounding the
case. Secondly, I must be satisfied that you are ableand willing
to make your own departure from Canada on or before the date
which I'll specify. The circumstances of your case indicate that
by the time you decided to take employment in Canada, you
knew that this was in violation of the law. You felt that you had
no choice because of the circumstances at the time. And that
lead [sic] me to believe that you knew that this was not the
proper way to proceed. Furthermore, you knew the proper
procedure, because eight years ago you applied for an immi
grant visa, and therefore are not fully unaware of the law, and
could therefore have informed yourself of that especially in
view of your close relatives in Canada. You strike me as an
otherwise credible witness. However, that portion of your tes
timony I did not consider credible. I also did not consider
credible your statement that you are willing to leave Canada
voluntarily because of your earlier statement that you have no
address to go to, you have no relatives to go to, you have no job
waiting for you; and under the circumstances I do not believe
that you would willingly return to Jamaica. Furthermore, you
have testified that you have no funds and there is no indication
that there is anybody willing to provide you with funds to make
your own departure from Canada. I must also point out to you
that I am aware of the circumstances you described and I
understand that it is the economic conditions in Jamaica.
However, the conditions in one's home country do not deter
mine the Immigration policy. No matter where you are from,
you must comply with Canadian Immigration law. You have
violated that law and therefore you must be removed from
Canada. I am not going to issue a departure notice.
From this latter passage, it seems clear to me
that the decision not to issue a departure notice
was based, largely if not entirely, on the fact that
the Adjudicator was not satisfied that the appli
cant would leave Canada. This was a condition
precedent to issuing a departure notice by virtue of
section 32(6)(b) and the requirement of "having
regard to all the circumstances of the case" that is
found in section 32(6)(a) has no application
thereto.
In my view, the section 28 application should be
dismissed.
* * *
HEALD J. concurred.
* * *
MACKAY D.J. concurred.
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.