A-288-78
Deonarine Kissoon (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
Court of Appeal, Pratte, Heald and Urie JJ.—
Toronto, July 25; Ottawa, September 8, 1978.
Judicial review — Immigration — Exclusion order —
Applicant, seventeen years old at the time. and represented by
member of the bar, not represented by parent or guardian at
inquiry before Adjudicator — Subsections 29(4) and (5)
require representation by parent or guardian for person under
eighteen at an inquiry — Whether or not Adjudicator, by
continuing inquiry without such representation, failed to
comply with subsection 29(5) — Federal Court Act, R.S.C.
1970 (2nd Supp.), c. 10, s. 28 — Immigration Act, 1976, S.C.
1976-77, c. 52, ss. 29(4),(5), 30.
APPLICATION for judicial review.
COUNSEL:
R. N. Sharma for applicant.
B. Evernden for respondent.
SOLICITORS:
Roop N. Sharma, Toronto, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
PRATTE J.: This section 28 application is direct
ed against an exclusion order made against the
applicant pursuant to section 32(5)(b) of the
Immigration Act, 1976, S.C. 1976-77, c. 52, on
the ground that he was not a genuine visitor.
The applicant's only serious ground of attack is
that the Adjudicator who conducted the inquiry
which culminated in the making of the exclusion
order failed to comply with subsection 29(5) of the
Immigration Act, 1976.
Subsections 29(4) and (5) read as follows:
29. ...
(4) Where an inquiry is held with respect to any person
under the age of eighteen years or any person who, in the
opinion of the adjudicator, is unable to appreciate the nature of
the proceedings, such person may, subject to subsection (5), be
represented by a parent or guardian.
(5) Where at an inquiry a person described in subsection (4)
is not represented by a parent or guardian or where, in the
opinion of the adjudicator presiding at the inquiry, the person is
not properly represented by a parent or guardian, the inquiry
shall be adjourned and the adjudicator shall designate some
other person to represent that person at the expense of the
Minister.
At the time of the inquiry, the applicant was
seventeen years old. He was not represented by a
parent or guardian. He was, however, represented
by a member of the Bar who, at the beginning of
the inquiry, argued that his client could not, in
view of his minority, be examined by the case
presenting officer. The Adjudicator very properly
rejected that contention and, probably because he
felt that the applicant was adequately represented
by his lawyer, proceeded with the inquiry without
complying with the requirements of subsection
29(5).
Three contentions were put forward on behalf of
the respondent:
a) An Adjudicator need not adjourn an inquiry for the
purpose of designating a representative for an infant where
the infant appears at the inquiry accompanied by legal
counsel;
b) Subsection 29(5) of the Immigration Act, 1976 is directo
ry only. Strict compliance with the terms of the provision is
not required where no prejudice or breach of the rules of
natural justice results;
c) Alternatively, where a decision is rendered without com
plying with subsection 29(5) of the Immigration Act, 1976,
the decision is voidable only. Where the Applicant is not
prejudiced, or no breach of natural justice results, the deci
sion should not be set aside.
These propositions may seem reasonable. How
ever, they cannot, in my view, be reconciled with
the text of the statute.
Subsections 29(4) and (5) give to minors the
right to be represented by a parent or guardian.
This right is distinct from and additional to the
right to counsel guaranteed by section 30. In my
view, it cannot be said, without ignoring the text of
these provisions, that subsections 29(4) and (5) do
not apply to those who have exercised their right to
retain a counsel under section 30.
I cannot find any support in the statute, either,
for the view that the prescriptions of subsections
29(4) and (5) are merely directory and that the
failure to comply with those provisions is without
consequences unless it causes prejudice to the
person in respect of whom the inquiry is held.
For those reasons, I would grant the application
and set aside the exclusion order made against the
applicant.
* * *
HEALD J.: I concur.
* *
URIE J.: I concur.
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.