A-95-79
Minister of Employment and Immigration
(Appellant)
v.
Miroslav Hudnik (Respondent)
Court of Appeal, Pratte, Heald and Le Dain JJ.—
Vancouver, June 13; Ottawa, July 3, 1979.
Prerogative writs — Mandamus — Immigration — Sailor,
who left ship, was ordered deported at conclusion of inquiry
Refugee status was not claimed until after conclusion of
inquiry and issuance of deportation order — Commission
refused to entertain claim for refugee status because respond
ent had already been ordered deported — Trial Division
granted writ of mandamus — Appeal from Trial Division's
decision to grant mandamus — Immigration Act, 1976, S.C.
1976-77, c. 52, ss. 6(2), 27(2)(j).
APPEAL.
COUNSEL:
G. Donegan for appellant.
D. Rosenbloom for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
appellant.
Rosenbloom & McCrea, Vancouver, for
respondent.
The following are the reasons for judgment
rendered in English by
PRATTE J.: This is an appeal from an order of
the Trial Division [[1979] 2 F.C. 82] reading as
follows [at page 90]:
A writ of mandamus is hereby issued to the Minister of
Employment and Immigration ordering the said Minister to
process and adjudicate upon the applicant Miroslav Hudnik's
application for refugee status made to the Employment and
Immigration Commission on the 9th day of January 1979 with
costs.
The respondent is a citizen of Yugoslavia who
entered Canada at the Port of Vancouver as a
crew member of a merchant ship on July 4, 1978.
He left his ship without the captain's permission
on July 5, and approached the Immigration
authorities asking permission to remain perma
nently in Canada. On July 7, an immigration
officer reported, pursuant to section 27(2) of the
Immigration Act, 1976, S.C. 1976-77, c. 52, that
the respondent was a person described in section
27(2)(j) of the Act. Following that report, an
inquiry was held on July 28, 1978, at the conclu
sion of which the respondent was ordered deported
on the ground that he was
... a person in Canada other than a Canadian citizen or a
permanent resident, who came into Canada as a member of a
crew and without the approval of an immigration officer, failed
to be on the vessel "Trbovlje" when it left the port of entry,
namely, Vancouver, B.C.
On January 9, 1979, the respondent, who had
not claimed to be a Convention refugee during the
course of his inquiry, attended at the Canadian
Immigration Centre in Vancouver with his present
counsel and informed an immigration officer that
he wished to place before the Canada Employment
and Immigration Commission "a claim for refugee
status pursuant to the United Nations Convention
on Refugees". The respondent was told that, as he
had already been ordered deported, the Commis
sion would not entertain his application or claim.
As a result of that refusal, the respondent applied
to the Trial Division for the issuance of a writ of
mandamus. That application was granted by the
decision against which this appeal is directed.
The judgment of the Trial Division, as I under
stand it, is based on the proposition that both the
United Nations Convention Relating to the Status
of Refugees and the Immigration Act, 1976
imposed on the appellant the obligation to consider
the respondent's application. This proposition, in
my view, is ill founded.
The United Nations Convention is not, as such,
part of the law of Canada and it clearly does not
impose any duty on the appellant. The sole real
question to be considered, therefore, is whether the
Immigration Act, 1976 imposed on the appellant
the duty to consider the respondent's application.
That question cannot be answered, though, with
out first determining the nature of the request or
application made by the respondent.
The only evidence of the respondent's applica
tion is found in the affidavits sworn by the
respondent and his counsel. In both these docu
ments the respondent's claim is merely described
as a "claim for refugee status pursuant to the
United Nations Convention on Refugee Status". It
appears to me that what the respondent was seek
ing from the appellant was merely a determination
with respect to the respondent's claim that he was
a Convention refugee. As the Immigration Act,
1976 does not contain any provision imposing on
the appellant the duty to consider and determine a
claim to refugee status which is made outside of an
inquiry, it follows, in my view, that the appellant
properly refused to consider the respondent's claim
and that, therefore, the order made by the Trial
Division should be set aside.
The Trial Division seems to have considered,
however, that the application made by the
respondent was not merely an application for a
determination of his status but, rather, an applica
tion that he be admitted into the country under
section 6(2) of the Act which reads in part as
follows:
6....
(2) Any Convention refugee ... may be granted admission
subject to such regulations as may be established with respect
thereto and notwithstanding any other regulations made under
this Act.
Even if I assume that such was the nature of the
respondent's application and, further, that a Con
vention refugee who is already in Canada may
seek to be admitted into the country, I remain of
opinion that the respondent's application was
rightly rejected. When the respondent made his
application, there was an outstanding deportation
order against him. The duty of the appellant and
of his officials, under section 50 of the Act, was to
execute that order "as soon as reasonably practi
cable". They were not relieved of that duty
because the respondent had chosen to seek admis
sion into the country. Furthermore, neither the
appellant nor his officials had the obligation to
consider an application which could not be enter
tained favourably without impliedly setting aside
the deportation order made against the respondent.
For these reasons, I would allow the appeal with
costs, set aside the decision of the Trial Division
and dismiss with costs the application for a writ of
mandamus made to the Trial Division.
* * *
HEALD J.: I agree.
* * *
LE DAIN J.: I agree.
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.