A-477-79
Nelson Fernando Riquelme Pincheira (Applicant)
v.
Attorney General of Canada, Minister of Employ
ment and Immigration and Patricia Ellis
(Respondents)
Court of Appeal, Pratte J. and Hyde and Lalande
D.JJ.—Montreal, February 5 and 8, 1980.
Judicial review — Immigration — Application to review
and set aside decision by Adjudicator acting in accordance
with the Act to allow applicant entry into Canada —
Adjudicator had adjourned inquiry after finding that appli
cant should be removed except for claim for refugee status
which was subsequently submitted to the Minister — Minister
recognized applicant's refugee status and issued permit
authorizing his entry into Canada — On resumption of hear
ing, Adjudicator terminated inquiry and permitted applicant
to enter the country — Whether or not Adjudicator, on
resumption of hearing, should have determined if applicant
was a refugee, and if so should have authorized his entry —
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28 —
Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 4(2), 14(1),
32(1), 37(1), 45(1), 47.
APPLICATION for judicial review.
COUNSEL:
R. Picard for applicant.
D. Marecki for respondents.
SOLICITORS:
Barron, Picard & Geoffrion, Montreal, for
applicant.
Deputy Attorney General of Canada for
respondents.
The following is the English version of the
reasons for judgment delivered orally by
PRATTE J.: It is difficult to understand a person
wishing to enter the country challenging the validi
ty of the decision authorizing him to do so. Never
theless, this is what applicant is doing, in challeng
ing in the manner provided for in section 28 of the
Federal Court Act, R.S.C. 1970 (2nd Supp.), c.
10, the decision arrived at by an Adjudicator
acting in accordance with the Immigration Act,
1976, S.C. 1976-77, c. 52, to allow him entry into
Canada.
Applicant comes from Chile; he wishes to live in
this country. During the inquiry held to determine
his admissibility, he claimed the status of a Con
vention refugee. The Adjudicator presiding at the
inquiry then acted in accordance with section
45(1) and adjourned it after finding that, but for
the claim to refugee status, the inquiry would have
led to a removal order, since applicant had no
immigrant visa and on account of that could not
obtain the right to settle in the country. Appli
cant's claim was then submitted to the Minister,
who found it to be valid. The Minister accordingly
recognized applicant's refugee status, and in addi
tion, exercising the power conferred on him by
section 37(1), issued him a permit authorizing him
to enter Canada. On the resumption of the inquiry
the Adjudicator, informed of the Minister's deci
sion and that the permit had been issued, held that
he was in the situation described in section 32(1);
he accordingly terminated the inquiry and let
applicant enter the country.'
Applicant maintains that, when the inquiry
resumed, rather than allowing him to enter
Canada, the Adjudicator should have acted in
accordance with the provisions of section 47,
namely, he should have determined whether he
was a refugee described in section 4(2) of the Act,
and if so, authorized him to remain in the country.
By not proceeding in this manner, applicant
argued, he was deprived of the rights which the
International Convention and the Immigration
Act, 1976 confer on refugees.
In my view this argument is without foundation.
First, even assuming for purposes of discussion
that applicant was a refugee described in section
4(2), the decision of the Adjudicator did not
deprive him of any right. The only right possessed
by a refugee described in section 4(2) is that of not
being compelled to leave the country. Far from
' Section 32(1) reads as follows:
32. (1) Where an adjudicator decides that a person who is
the subject of an inquiry is a person described in subsection
14(1) or a person who has a right to remain in Canada, he
shall let such person come into Canada or remain therein, as
the case may be.
With regard to section 14(1), it reads in part as follows:
14. (1) Where an immigration officer is satisfied that a
person examined by him
(b) is a person in possession of a subsisting permit, ..
he shall allow such person to come into Canada.
compelling applicant to leave Canada, the decision
of the Adjudicator gave him permission to enter.
However, that is not all. Not only did the deci
sion not cause any injury to applicant, it was the
only one which could lawfully have been rendered
in the circumstances. When an inquiry which was
adjourned pursuant to section 45(1) is resumed
after the person in question has been acknowl
edged to have refugee status, the inquiry which is
conducted is the same as that commenced before
the adjournment; it is still an inquiry held for the
purpose of determining whether the person in
question may come into or remain in Canada, or
whether he should be obliged to leave the country.
The Adjudicator accordingly acted correctly in
considering that section 32(1) applied at this
second stage of the inquiry as well as the first, and
that therefore applicant had to be authorized to
enter the country. I should add that I would arrive
at the same result if section 32(1) did not exist.
The conclusion arrived at by an adjudicator at the
close of the first stage of an inquiry adjourned in
accordance with section 45(1) is not fixed and
unchanging: the adjudicator is entitled to revise it
at any time during the inquiry and he even has a
duty to do so if he finds that it is incorrect.
Accordingly, if during the second part of the inqui
ry the adjudicator finds that, contrary to what he
thought at first, the person in question is entitled
to come into or remain in Canada, he must stop
the inquiry at that point and make the decision
necessary. There would be no purpose in proceed
ing with the second stage of the inquiry provided
for in section 47: why should he waste time deter
mining whether a refugee may be compelled to
leave the country if, in any case, the right of that
refugee to enter and remain in Canada is
undisputed?
For these reasons, I would dismiss the
application.
* * *
HYDE D.J. concurred.
* * *
LALANDE 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.