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A-468-78
Manuel Eduardo Riveros-Melo (Applicant) v.
Minister of Employment and Immigration (Respondent)
Court of Appeal, Pratte and Urie JJ. and MacKay D.J.—Toronto, October 23, 1978.
Judicial review — Immigration Exclusion order —
Applicant, on expiry of visitor status, claimed to be refugee Immigration officer delayed reporting applicant under s. 22 of the old Act until claim to refugee status disposed by Refugee Status Advisory Committee — Claim rejected and s. 22 report made to Special Inquiry Officer — Report not acted upon until new Act in force — During inquiry held under s. 20 of the new Act, applicant again claimed refugee status — Adjudica tor, instead of adjourning inquiry in compliance with s. 45(1),
pronounced exclusion order Whether or not exclusion order
should be set aside Immigration Act, R.S.C. 1970, c. I-2,
ss. 7(3), 22 Immigration Act, 1976, S.C. 1976-77, c. 52, ss.
20, 45(1), 126(c) — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
APPLICATION for judicial review. COUNSEL:
B. Knazan for applicant.
H. Erlichman for respondent.
SOLICITORS:
Brent Knazan, 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
PRATTE J.: We are all of the view that this section 28 application must succeed and that the exclusion order made against the applicant must be set aside.
The applicant comes from Chile. He was admit ted to Canada as a non-immigrant on August 28, 1977, for a period of two months. Before the expiry of his status he reported to the immigration authorities and claimed to be a refugee. Immedi ately after the expiry of his status he reported to an immigration officer pursuant to section 7(3) of
the Immigration Act of 1952 [R.S.C. 1970, c. I-2]. The immigration officer was of the view that the applicant could not be admitted to Canada, but he delayed reporting him under section 22 of the "old" Act until his claim to refugee status had been disposed of by the "Refugee Status Advisory Committee". At the end of March 1978, after the Committee had rejected the applicant's claim, the immigration officer made a section 22 report to a Special Inquiry Officer. That report was not acted upon before the coming into force of the new Immigration Act, 1976, S.C. 1976-77, c. 52, on April 10, 1978, with the result that the section 22 report was deemed, by virtue of section 126(c) of the new Act, to be a report made under section 20 of that Act. An inquiry was therefore held under the provisions of the new Act. During that inquiry, the applicant again claimed that he was a refugee protected by the Convention. The adjudicator, instead of complying with section 45(1) and adjourning the inquiry, proceeded to pronounce the exclusion order which is now under attack.
In our view, the adjudicator was wrong. The inquiry was held under the new Act following a report which was deemed to have been made under section 20 of that Act. The adjudicator had to comply with the requirements of section 45(1). Contrary to what was argued, it cannot be said that the applicant, at the time of the coming into force of the new Act, had a vested right to see his claim to refugee status disposed of according to the provisions of the legislation in force before April 10, 1978. Under that legislation, the only persons who had rights in respect of a claim to refugee status were those who had made that claim and had later been ordered deported by a Special Inquiry Officer. Such was not the situation of the applicant.
The exclusion order will therefore be set aside and the matter referred back to the adjudicator with the direction that the provisions of section 45 should be complied with.
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