A-683-79
Tadeusz Jakubowski (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
Court of Appeal, Thurlow C.J., Urie J. and Kerr
D.J.—Vancouver, February 14 and 15, 1980.
Judicial review — Immigration — Application to review
decision of Adjudicator to reconvene inquiry and to proceed to
the making of the departure notice — After long adjournment,
memorandum to Adjudicator stating that applicant was not a
Convention refugee — Memorandum signed by a senior immi
gration officer — Letter addressed to applicant re Minister's
decision signed by person 'for" Registrar of Refugee Status
Advisory Committee — Whether sufficient notice by Minister
to applicant — Whether Registrar of Committee had authority
to exercise functions of Minister — Nothing in record to
contradict order to Adjudicator or authority — Presumption
of authority — Order or direction sufficient authority for
Adjudicator to reconvene inquiry — Application dismissed —
Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 45(5), 46(1),
118(1) — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10,
s. 28.
Ali v. Minister of Manpower and Immigration [1976] 1
F.C. 185, applied.
APPLICATION for judicial review.
COUNSEL:
D. J. Rosenbloom for applicant.
A. D. Louie for respondent.
SOLICITORS:
Rosenbloom, McCrea & Leggatt, Vancouver,
for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
delivered orally in English by
THURLOw C.J.: We do not need to hear you
Mr. Louie.
We have not been persuaded that the Adjudica
tor lacked jurisdiction to reconvene the inquiry and
to proceed to the making of the departure notice
which is attacked in this application. The record
shows that following an adjournment of some thir
teen months under subsection 45(1) of the Immi
gration Act, 1976, S.C. 1976-77, c. 52, the
Adjudicator had received a memorandum dated
November 20, 1979, which purports to be signed
by a senior immigration officer, reciting in the
terms of subsection 46(1) that he had been
informed, pursuant to subsection 45(5), that the
applicant is not a Convention refugee and requir
ing that the inquiry be resumed. Under subsection
118(1) that order or direction is evidence of the
facts contained therein, unless called into question
by the Minister or by a person acting for him or
for Her Majesty. Neither the document nor the
facts contained therein have been called in ques
tion by the Minister or any such person. The order
or direction is by itself a sufficient foundation for
the exercise by the Adjudicator of jurisdiction to
reconvene the inquiry.
Nothing in the record or in anything put before
this Court contradicts this order or the authority
for it or shows that the Adjudicator lacked juris
diction. Counsel for the applicant focussed on the
form of the signature on a letter addressed to the
applicant informing him of the Minister's decision
pursuant to subsection 45(5). His submission was
that because the word "for" appears beside the
word "Registrar", which follows the signature of
G. P. Garvin and which in turn is followed by the
words "Refugee Status Advisory Committee", the
letter is not, for the purposes of subsection 45(5), a
sufficient notice in writing by the Minister to
inform the applicant of the Minister's decision. He
takes this position notwithstanding the fact that it
was acted upon by the applicant in invoking the
exercise by the Immigration Appeal Board of its
jurisdiction under subsection 70(1) of the Act. In
our view, what is more important than the form of
the letter to the applicant for the purpose of
founding jurisdiction under subsection 46(1) is
whether the notice of the Minister's decision,
received by the senior immigration officer, is suffi
cient for the purposes of subsection 45(5), but even
assuming that what the senior immigration officer
received was the copy of the same letter, Exhibit 6,
we see no reason to doubt its sufficiency. The
record shows that the Registrar of the Committee
had authority to perform and exercise the duties,
powers and functions of the Minister under subsec
tion 45(5). The letter, as typed, purports to be
written by G. P. Garvin, Registrar, Refugee Status
Advisory Committee, and in our view, it also
purports to be signed by G. P. Garvin, for himself
as Registrar.
A further submission put forward for the first
time in a supplementary memorandum filed yes
terday was that the Adjudicator lacked jurisdiction
because the record does not show that the Immi
gration Appeal Board had notified the Minister of
its determination prior to the resumption of the
inquiry.
In the absence of any reference in the record
with respect to such a notice, it appears to us that
having regard to the presumption of regularity as
well as to the fact that the Board's determination
was made on October 4, 1979, and the direction
for resumption of the inquiry was not made until
November 20, 1979, it is to be inferred that the
notice was in fact given.
The application therefore fails and will be
dismissed.
* * *
KERR D.J. concurred.
* * *
The following are the reasons for judgment
delivered orally in English by
URIE J.: I have had the advantage of hearing
what was said by the Chief Justice and I am in full
agreement both with his reasoning and with his
proposed disposition of the application. I merely
wish to add that, in my view, there is another basis
upon which it may be dismissed which does not
depend on Mr. Garvin's official status.
In Ali v. Minister of Manpower and Immigra
tion [1976] 1 F.C. 185, this Court had before it a
document purporting to be a direction to hold an
inquiry as required by section 25 of the Immigra
tion Act, R.S.C. 1970, c. I-2. The document was
signed:
D. Lalonde
Assistant Director General (Immigration Operations) Ontario
Region
For Director of Immigration Branch Department of Man
power and Immigration
It was said to be deficient in that:
(a) there was lack of any proof of an authority
for some person to act for the Director as con
templated by the definition of that officer in the
Act, and
(b) proof that the person who signed the direc
tion fell within that authority.
To those submissions Chief Justice Jackett had
this to say [at page 189]:
The first answer to that attack, in our view, is that, on the
face of the direction, the person who signed it purports to do so
"for" the Director of the Immigration Branch and, in accord
ance with the ordinary rules regarding departmental adminis
tration, until such time as it is rebutted, there is a presumption
that he had the authority that he purported to exercise. In this
case, we think that there is the supporting fact, that what was
involved was an administrative departmental inquiry that there
is at least a prima facie presumption that the Special Inquiry
Officer knew who had, and who had not, appropriate authority
and that he would not have proceeded with an inquiry until he
had a proper direction.
Despite the fact that this does not involve the
signing authority of an ordinary departmental offi
cial but rather relates to that of an official of a
departmental committee, in my view, those words
are nevertheless wholly apposite to this case and I
adopt them as supporting my view that the appli
cant's argument is untenable. I do not believe that
the submission of counsel that the formal delega
tion of authority here required "the absence" of
the Registrar before the person who is to act for
him during his absence could act in his place,
affects the matter at all. The presumption that the
person signing has authority to do so extends to
that person without the words "in the absence of
. . ." being stated in the document.
Moreover, subsection 118(1) of the 1976 Act
puts the matter beyond doubt in that it permits
documents to be "... evidence of the facts con
tained therein without proof of the signature or the
official character of the person appearing to have
signed the document, unless called into question by
the Minister ...". [Emphasis added.]
The "official character" of the person signing is
said to be "G. P. Garvin for the Registrar,
Refugee Status Advisory Committee". Since the
Minister has not challenged either the signature or
the "official character" of G. P. Garvin, the docu
ment cannot be questioned.
Accordingly for those additional reasons I would
dismiss the application.
* *
KERR 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.