A-290-79
Charles Esperanto Monfort (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
Court of Appeal, Heald and Ryan JJ. and Kelly
D.J.—Toronto, July 26; Ottawa, September 4,
1979.
Judicial review — Immigration — Exclusion order
Inquiry convened as a result of report alleging applicant not a
genuine visitor — Applicant, at inquiry, allowed adjournment
to obtain counsel — Whether or not Senior Immigration
Officer's decision to exclude applicant met requirements of
procedural fairness — Whether or not applicant should have
been advised of his right to counsel before Senior Immigration
Officer made decision to convene inquiry — Immigration Act,
1976, S.C. 1976-77, c. 52, ss. 20(1), 23(3) — Federal Court
Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
APPLICATION for judicial review.
COUNSEL:
G. W. Bell for applicant.
G. R. Garton for respondent.
SOLICITORS:
Parkdale Community Legal Services,
Toronto, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
HEALD J.: This is a section 28 application to
review and set aside the exclusion order made
against the applicant.
The applicant, a citizen of Haiti, applied to
enter Canada as a visitor at Toronto International
Airport on April 20, 1979. On that same date, an
Immigration Officer signed a report under section
20(1) of the Immigration Act, 1976, S.C. 1976-77,
c. 52,' alleging that the applicant was not a gen
uine visitor. The applicant was thereafter detained.
The section 20(1) report was reviewed by a Senior
Immigration Officer who ordered the applicant
further detained pursuant to section 23(3)(a) of
the Immigration Act, 1976 2 and also caused an
inquiry to be convened pursuant to section
23(3)(c) of the Act. The inquiry was opened on
April 21, 1979 at which time the applicant stated
that if he was not going to be allowed "to circulate
the way I want" that he would return to his
country. The adjudicator at the inquiry granted
the applicant an adjournment to obtain counsel,
detaining the applicant in the meantime. The
inquiry continued on April 24 and 25, 1979.
Counsel for the applicant's initial submission
was to the effect that a valid decision by a Senior
Immigration Officer under either section 23(3)(c)
or (d) of the Act, is a condition precedent to the
jurisdiction of an adjudicator to conduct an in
quiry with respect to a person seeking entry to
Canada. I agree with this submission since this
Court expressed a similar view in the case of Saini
' Section 20(I) of the Immigration Act, 1976, reads as
follows:
20. (1) Where an immigration officer is of the opinion
that it would or may be contrary to this Act or the regula
tions to grant admission to or otherwise let a person exam
ined by him come into Canada, he may detain or make an
order to detain the person and shall
(a) subject to subsection (2), in writing report that person
to a senior immigration officer; or
(b) allow that person to leave Canada forthwith.
' Section 23(3) of the Immigration Act, 1976, reads as
follows:
23....
(3) Where a senior immigration officer does not let a
person come into Canada pursuant to section 22 and does not
grant admission to or otherwise authorize the person to come
into Canada pursuant to subsection (I) or (2), he may
(a) detain or make an order to detain the person, or
(b) release the person from detention subject to such
terms and conditions as he deems appropriate in the
circumstances, including the payment of a reasonable
security deposit or the posting of a performance bond,
and shall
(c) subject to subsection (4), cause an inquiry to be held
concerning that person as soon as is reasonably practi
cable, or
(d) allow that person to leave Canada forthwith.
v. Minister of Manpower and Immigration'.
It is counsel's further submission that there is a
duty upon anyone who exercises a power of deci
sion of an administrative nature under a statutory
authority to act fairly in making such a decision,
and where the duty of fairness has not been met
the decision is subject to judicial review and will be
quashed. In support of this proposition, counsel
relies, inter alia, on the recent decisions of the
Supreme Court of Canada in the Nicholson case 4
and in the Coopers and Lybrand case 5 . Counsel
then submits that, on the facts in this case, "there
was no evidence before the inquiry to support a
finding that the decision of the immigration officer
in the instant case met the requirements of proce
dural fairness demanded by a correct interpreta
tion of the law, and that the inquiry which was
convened consequent to this decision was therefore
without jurisdiction because it proceeded without
ascertaining whether a condition precedent,
namely a valid decision under section 23(3) of the
Act had been fulfilled."
After a perusal of the record, I am satisfied that
the requirements of procedural fairness as required
by the relevant jurisprudence was met by the
Senior Immigration Officer in this case. It is clear
from a perusal of pages 10, 11 and 12 of the
inquiry that the Senior Immigration Officer was
aware that under section 23(3) of the Act, he had
a choice as to whether to cause an inquiry to be
held or to allow the applicant to leave Canada
forthwith; that he explained to the applicant the
possibility of withdrawing the application to enter
Canada and the consequences of withdrawing or
not withdrawing that application; that he offered
the applicant the option of voluntary withdrawal
which the applicant appeared to understand and
the applicant advised him that an inquiry would be
preferred to voluntary departure.
Applicant's counsel, however, submitted further
that the Senior Immigration Officer should have
File A-61-78—Judgment dated April 26, 1978.
4 Nicholson v. Haldimand-Norfolk Regional Board of Com
missioners of Police [1979] I S.C.R. 311.
M.N.R. v. Coopers and Lybrand [1979] 1 S.C.R. 495.
The above quotation is taken from paragraph 23 of the
applicant's memorandum of points to be argued.
informed the applicant of the right to counsel
before making his decision under section 23(3) to
convene the inquiry. The only specific require
ments dealing with the right to counsel in the Act
or Regulations are to be found in section 30 of the
Act and in Regulations 27 to 39 inclusive. Both
the provisions of the Act and the Regulations refer
only to the right to counsel at an inquiry under the
Act. There is no specific provision for the right to
counsel at the proceedings before the Senior Immi
gration Officer when he makes his section 23(3)
determination, either in the Act or in the Regula
tions. Nor do I think that such a duty can be
inferred or implied as part of the Senior Immigra
tion Officer's duty to act fairly toward the
applicant'. As Lord Denning said in Regina v.
Gaming Board for Great Britain 8 : " It is not possi
ble to lay down rigid rules as to when the princi
ples of natural justice are to apply: nor as to their
scope and extent. Everything depends on the sub-
ject-matter:" In that case, Lord Denning referred
to the judgment of Lord Parker C.J. in In re H. K.
(An Infant)', an immigration case, where he said:
"... even if an immigration officer is not in a
judicial or quasi-judicial capacity, he must at any
rate give the immigrant an opportunity of satisfy
ing him of the matters in the subsection, and for
that purpose, let the immigrant know what his
immediate impression is so that the immigrant can
disabuse him. That is not, as I see it, a question of
acting or being required to act judicially, but of
being required to act fairly."
Having regard to the nature of the duty being
performed by the Senior Immigration Officer
under section 23(3) of the Act, and having regard
to the scheme of the Act as a whole, to require
him, before making the section 23(3) determina
tion, to advise the immigrant that he has a right to
counsel at that determination, would, in my view,
require express words in the Act or Regulations.
The result of such a requirement would entail
' Compare: Maynard v. Osmond [1976] 3 W.L.R. 711 per
Lord Denning M.R. at pp. 718 and 719; and Fraser v. Mudge
[1975] 1 W.L.R. 1132.
[1970] 2 Q.B. 417 at 430.
9 [1967] 2 Q.B. 617 at 630.
another "mini-inquiry" or "initial inquiry" pos
sibly just as complex and prolonged as the inquiry
provided for under the Act and Regulations. I am
not prepared to infer such a requirement. It seems
to me that all that is required of the Senior
Immigration Officer is that he explain to the
applicant the nature of the section 23(3) proceed
ings and the options open to the Senior Immigra
tion Officer thereunder. As stated supra, this
procedure was followed here and additionally, the
applicant was given the option of voluntary with
drawal which was refused. I have therefore con
cluded that on the facts and circumstances here
present, the duty of procedural fairness has been
complied with. I would accordingly dismiss the
section 28 application.
* * *
RYAN J. concurred.
* * *
KELLY 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.