A-96-82
Tshai Ferrow (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
Court of Appeal, Thurlow C.J., Heald J. and
Lalande D.J.—Winnipeg, January 10; Ottawa,
January 25, 1983.
Immigration — S. 28 application to review and set aside
decision of Adjudicator that, but for applicant's claim to
refugee status, deportation order would have issued — Appli
cant made claim for refugee status during course of inquiry —
Adjudicator, having found applicant had overstayed student
visa, refused to grant adjournment to allow proper authorities
to deal with claim under s. 45 until he had reached conclusion
on issue of whether a deportation order or departure notice
should issue — Whether determination of Adjudicator that
deportation order should issue if refugee claim not successful
is "decision" within meaning of s. 28 of the Federal Court Act
and therefore subject to review — Application dismissed — In
The Attorney General of Canada v. Cylien Court viewed
"decision" as a determination, made in exercise of statutory
jurisdiction, which has final, conclusive effect — Determina
tion here not "decision" but mere expression of opinion which
has no effect until implemented by making of deportation
order — Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 32,
45(1), 46 — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10,
s. 28.
This is a section 28 application to review and set aside the
decision of an Adjudicator under section 32 of the Immigration
Act, 1976 that, but for the applicant's claim to refugee status, a
deportation order would have been issued. The applicant made
a claim for refugee status during the course of an inquiry held
after he had overstayed his student visa. The Adjudicator,
having found that the applicant had overstayed, refused to
grant an adjournment before dealing with the question of
whether a departure notice or deportation order should be
made. After he had concluded that but for the claim for
refugee status the applicant would be the subject of a deporta
tion order he adjourned the inquiry to allow the proper authori
ties to deal with the claim under section 45. The applicant,
relying on the decision in Ergul v. Minister of Employment and
Immigration contends that the Adjudicator's determination
that a deportation order rather than a departure notice should
be issued, was a decision within the meaning of section 28 of
the Federal Court Act and therefore subject to review on the
ground that on resumption of the inquiry under subsection
46(1), if the applicant's claim for refugee status has not
succeeded, the Adjudicator would be required by subsection
46(2) to make the deportation order he had previously deter
mined to make.
Held, the application is dismissed. The Immigration Act,
1976 provides for a system of inquiries before an adjudicator
who has authority to inquire and determine whether a person
who is alleged to be in a class that is not entitled to remain in
Canada is indeed within that class. Having determined that
issue the adjudicator has power, except where there has been a
claim to refugee status, to act on his conclusion in accordance
with section 32 by allowing the person to remain in Canada or
ordering that he be excluded from the country by virtue of a
deportation order or departure notice. Where a person claims
refugee status and the adjudicator finds that the person would,
but for the claim, be the subject of a deportation order or
departure notice, the inquiry should be adjourned and resumed,
pursuant to section 46, if it is decided that the person is not a
refugee. In this case the Adjudicator proceeded to conclude
that a deportation order should issue in reliance on the interpre
tation of subsection 45(1) in Ergul v. Minister of Employment
and Immigration wherein it was held that where an inquiry is
adjourned before the determination is made as to whether a
deportation order or departure notice should be issued, it
cannot be regarded as having been adjourned pursuant to
subsection 45(1) or as resumed under subsection 46(1) and
therefore cannot be resumed before a different adjudicator
without the consent of the person concerned. If the Ergul
decision is correct the statute here in question requires that a
determination be made before there can be an adjournment
under subsection 45(1). However, regardless of Ergul the
determination of the adjudicator is not a decision that is open
to attack under section 28. In the Cylien case the Court was of
the opinion that "decision" within the context of that section
meant the ultimate decision or order taken or made by the
tribunal under the relevant statute. The determination here in
question is merely an expression of "opinion" and will not be a
decision that is open to review under section 28 until it is
implemented by the making of a deportation order. Only then
is there finality and subject matter for a review of the kind
contemplated in that case. The interpretation placed on subsec
tion 45(1) in Ergul should not be followed. The Immigration
Act, 1976 should be interpreted so as to avoid administrative
problems and based on this the words "if it is determined that
... a removal order or a departure notice would be made or
issued with respect to that person" are not to be viewed as
requiring that the determination as to which would be appropri
ate be made before the adjournment but rather is to be viewed
as referring to the situation as determined being one which will
require the making of a deportation order or issuing of a
departure notice rather than allowing the person to enter or
remain in Canada which, under section 32, is also possible.
CASES JUDICIALLY CONSIDERED
APPLIED:
The Attorney General of Canada v. Cylien, [1973] F.C.
1166 (C.A.); National Indian Brotherhood, et al. v.
Juneau, et al. (No. 2), [1971] F.C. 73 (C.A.).
NOT FOLLOWED:
Ergul v. Minister of Employment and Immigration,
[1982] 2 F.C. 98 (C.A.).
DISTINGUISHED:
British Columbia Packers Limited, et al. v. Canada
Labour Relations Board et al., [1973] F.C. 1194 (C.A.);
In re Anti-dumping Act and in re Danmor Shoe Co. Ltd.,
[1974] 1 F.C. 22 (C.A.).
CONSIDERED:
Canadian Human Rights Commission v. British
Columbia Bank Note Company, [1981] 1 F.C. 578
(C.A.); Richard v. Public Service Staff Relations Board,
[1978] 2 F.C. 344 (C.A.); Pincheira v. Attorney General
of Canada, et al., [1980] 2 F.C. 265 (C.A.); Vakili v.
Department of Employment and Immigration, et al.,
Federal Court, A-482-82, judgment dated December 16,
1982; Brannon v. Minister of Employment and Immi
gration, [1981] 2 F.C. 141 (C.A.).
COUNSEL:
D. Matas for applicant.
B. Hay for respondent.
SOLICITORS:
David Matas, Winnipeg, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
THURLOW C.J.: This is an application under
section 28 of the Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, to review and set aside what is
referred to in the originating notice of motion as:
... the decision made against the Applicant by Paul Tetrault,
an adjudicator, under the Immigration Act, 1976, on the 2nd
day of February, A.D. 1982 and communicated to the Appli
cant on the same date, that, but for the claim of the Applicant
to Refugee Status, a Deportation Order would have issued.
The principal issue argued on the hearing of the
application was whether what is attacked is a
"decision" within the meaning of subsection 28(1)
of the Federal Court Act. It was not contended
that the subject of the attack was an "order"
within the meaning of that subsection.
The applicant is an Ethiopian, born November
2, 1962, who arrived at Winnipeg on December
31, 1980, in possession of a Sudanese travel docu
ment and was permitted to remain in Canada as a
student until December 7, 1981. Before that date
he sought to remain as a Convention refugee but,
as a result of advice he obtained from Immigration
authorities, he decided to stay beyond December 7,
1981, and to assert his claim in the course of the
immigration inquiry that would follow. Early in
the inquiry proceeding his counsel stated that at
the appropriate time he would make such a claim.
Following a finding that the applicant had over
stayed, his counsel sought an adjournment but this
was denied and the Adjudicator thereupon pro
ceeded to inquire into and determine the question
whether a departure notice should be issued or a
deportation order should be made, an issue on
which he concluded in favour of a deportation
order. His opinion was expressed in the following
paragraph:
Taking into consideration the elements outlined in 32(6), brief
ly, I do not believe your circumstances warrant deportation, but
I believe that you have not satisfied me that you are willing and
able to depart Canada. Therefore, but for your claim to refugee
status, I would have ordered your deportation today.
The inquiry was then adjourned for the purpose
of having the applicant's claim for Convention
refugee status determined by the appropriate
authorities in accordance with section 45 of the
Act. No deportation order was issued or could
lawfully be issued pending resolution of the claim
or until the inquiry was resumed thereafter. What
the applicant, by this application, seeks to have
reviewed and set aside is the Adjudicator's deter
mination that a deportation order rather than a
departure notice would have been appropriate had
the claim for Convention refugee status not been
made. That determination, it was submitted, was a
"decision" within the meaning of section 28 of the
Federal Court Act.
Before setting out the relevant provisions of the
Immigration Act, 1976, S.C. 1976-77, c. 52, it will
be convenient to outline in general terms the set
ting in which they operate.
Under the Act, certain defined classes of per
sons, notably Canadian citizens, have the right to
come into and remain in Canada, certain defined
classes of persons may be permitted to come into
or remain in Canada, and certain defined classes
have no right to come into Canada or, if in
Canada, to remain therein. With respect to the
determination of the rights of persons other than
those claiming to be Canadian citizens or Conven
tion refugees, the Act provides a system for in
quiries to be held before officials known as
adjudicators who are given authority to inquire
into and determine whether a person who is
alleged to be in a class that is not entitled to enter
or remain in Canada is indeed within such a class
and, having determined that issue, to act on his
conclusion, in accordance with section 32, either
by allowing the person to come into or remain in
Canada or to order that he be excluded or
removed. If the person is to be removed, the order
to be made is a deportation order or an exclusion
order, except that with respect to persons who have
been admitted to or are in Canada, in certain
instances, depending on the particular class of
removable persons into which the person has been
found to be, the adjudicator is required to issue a
departure notice specifying a date on or before
which the person is required to leave Canada if the
adjudicator is satisfied that:
32. (6) ...
(a) having regard to all the circumstances of the case, a
deportation order ought not to be made against the person,
and
(b) the person will leave Canada on or before a date specified
by the adjudicator,
in which case he shall issue a departure notice to the person
specifying therein the date on or before which the person is
required to leave Canada.
The most important difference in the effect of a
departure notice and that of a deportation order is
that when a deportation order is issued the person
may not thereafter return to Canada without the
consent of the Minister. A departure notice does
not entail such a disability.
However, as already indicated, the statute does
not confer on an adjudicator authority to decide a
claim by a person that he is a Convention refugee.
A special procedure for determining such claims is
provided by section 45 of the Act and when the
claim succeeds the statute operates to afford the
person concerned, in some instances, a right to
remain in Canada, and, in others, a measure of
protection against deportation to a country in
which his life or freedom would be threatened.
Subsection 45(1) and section 46 operate in this
context. They provide:
45. (1) Where, at any time during an inquiry, the person
who is the subject of the inquiry claims that he is a Convention
refugee, the inquiry shall be continued and, if it is determined
that, but for the person's claim that he is a Convention refugee,
a removal order or a departure notice would be made or issued
with respect to that person, the inquiry shall be adjourned and
that person shall be examined under oath by a senior immigra
tion officer respecting his claim.
46. (1) Where a senior immigration officer is informed
pursuant to subsection 45(5) that a person is not a Convention
refugee, he shall, as soon as reasonably practicable, cause the
inquiry concerning that person to be resumed by the adjudica
tor who was presiding at the inquiry or by any other adjudica
tor, but no inquiry shall be resumed in any case where the
person makes an application to the Board pursuant to subsec
tion 70(1) for a redetermination of his claim that he is a
Convention refugee until such time as the Board informs the
Minister of its decision with respect thereto.
(2) Where a person
(a) has been determined by the Minister not to be a Conven
tion refugee and the time has expired within which an
application for a redetermination under subsection 70(1)
may be made, or
(b) has been determined by the Board not to be a Conven
tion refugee,
the adjudicator who presides at the inquiry caused to be
resumed pursuant to subsection (1) shall make the removal
order or issue the departure notice that would have been made
or issued but for that person's claim that he was a Convention
refugee.
In the present case, in proceeding to determine,
before adjourning under subsection 45(1), that a
deportation order rather than a departure notice
should be made, the Adjudicator relied on and
followed an interpretation of that subsection
adopted by this Court in Ergul v. Minister of
Employment and Immigration' which held that an
inquiry which had been adjourned before such a
determination had been made could not be regard
ed as having been adjourned pursuant to subsec
tion 45 (1) or as resumed under subsection 46(1)
and for that reason could not be resumed before a
different adjudicator without the consent of the
person concerned.
1 [1982] 2 F.C. 98 (C.A.).
The applicant's case for treating the determina
tion so made by the Adjudicator as a "decision"
within the meaning of section 28 of the Federal
Court Act, as I understood it, was that because on
resumption of the inquiry under subsection 46(1),
if the applicant's claim for Convention refugee
status has not succeeded, the Adjudicator will be
required by subsection 46(2) to simply make the
deportation order he had previously determined to
make, the determination itself is final and is a
"decision" that is open to review under section 28.
This position was predicated on the assumption
that the reasoning of the Ergul judgment is correct
and will be followed. On the assumption that the
Ergul reasoning is not correct and is not to be
followed, counsel conceded that the determination
under attack was not a "decision" and that the
application to review and set it aside must fail.
Both he and counsel for the respondent urged the
Court to take that view. Counsel for the respond
ent, however, also submitted that even if the Ergul
reasoning is adopted and followed, the determina
tion under attack is not a "decision" within the
meaning of section 28.
The question whether particular actions taken
by federal tribunals amounted to "decisions"
within the meaning of subsection 28(1) of the
Federal Court Act has been considered on numer
ous occasions since 1971, notably in The Attorney
General of Canada v. Cylien 2 , British Columbia
Packers Limited, et al. v. Canada Labour Rela
tions Board et al. 3 , and In re Anti-dumping Act
and in re Danmor Shoe Co. Ltd. 4 In the Cylien
case, Jackett C.J., referred to the judgment in
National Indian Brotherhood, et al. v. Juneau, et
al. (No. 2)' in which he had discussed, without
deciding, some of the problems that may arise in
determining the ambit of the words "decision or
order" in subsection 28(1). He cited a passage
from that judgment which included the following
[at page 11741:
2 [1973] F.C. 1166 (C.A.).
3 [1973] F.C. 1194 (C.A.).
4 [1974] 1 F.C. 22 (C.A.).
5 [1971] F.C. 73 (C.A.).
I do not pretend to have formulated any view as to what the
words "decision or order" mean in the context of s. 28(1), but it
does seem to me that what is meant is the ultimate decision or
order taken or made by the tribunal under its statute and not
the myriad of incidental orders or decisions that must be made
in the process of getting to the ultimate disposition of a matter.
The learned Chief Justice then proceeded to
describe what was under attack in the Cylien case
thus [at page 1174]:
As I understand the submissions on behalf of the Attorney
General, there is, expressly or impliedly, in the reasons deliv
ered by the majority of the Board on October 16, 1973, a
"decision" by which the Board rejected the objection to its
jurisdiction, confirmed its previous decision concerning produc
tion of the "record" and decided to proceed with a hearing
before performing its section 11(3) duty. This is the decision
that counsel is asking this Court to set aside under section 28.
(During the course of argument, counsel for the Attorney
General indicated that he was not seeking to have the "order"
of October 24 set aside except as an integral part of such
"decision")
Later he said [at pages 1175-1176]:
In considering whether what has been put forward here as a
decision is a "decision" within the meaning of that word in
section 28(1), it is to be remembered that the Immigration
Appeal Board is a federal board, commission or other tribunal
because it is a body having, exercising or purporting to exercise
"jurisdiction or powers" conferred by an Act of the Parliament
of Canada (see section 2(g) of the Federal Court Act). A
decision that may be set aside under section 28(1), must,
therefore, be a decision made in the exercise or purported
exercise of "jurisdiction or powers" conferred by an Act of
Parliament. A decision of something that the statute expressly
gives such a tribunal "jurisdiction or powers" to decide is
clearly such a "decision". A decision in the purported exercise
of the specific "jurisdiction or powers" conferred by the statute
is equally clearly within the ambit of section 28(1). Such a
decision has the legal effect of settling the matter or it purports
to have such legal effect. Once the tribunal has exercised its
"jurisdiction or powers" in a particular case by a "decision" the
matter is decided even against the tribunal itself. (Unless of
course it has express or implied powers to undo what it has
done, which is an additional jurisdiction.) [Emphasis added.]
I pause to note at this point that, as it seemed to
me, it was on this passage and particularly the two
sentences which I have underlined that the appli
cant in the present case relied.
Later in his reasons the learned Chief Justice
said [at pages 1176-1177]:
The question that has to be considered here is, therefore,
whether section 28(1) extends not only to all decisions made by
the Immigration Appeal Board in the exercise or purported
exercise of "jurisdiction or powers" to make decisions that have
some legal effect or consequences but extends also to all
conclusions reached by the Board during the various prelim
inary steps taken in the process leading up to the actual
exercise of "jurisdiction or powers" to make decisions.
In the result he held that what was under attack
was not a "decision" within the meaning of subsec
tion 28(1).
Neither the Cylien case nor the British
Columbia Packers case, however, was one in
which what the tribunal had determined was some
thing which the applicable statute had expressly
authorized or required the tribunal to decide. The
Danmor Shoe case was of the same kind and the
result was the same. What were attacked as "deci-
sions" were the conclusion of the Tariff Board that
it did not have authority to review a ministerial
prescription made under the authority of a statute
and certain rulings made by the Tariff Board on
objections to the reception of evidence in the
course of hearing appeals before it. In none of
these three cases was the question the same as that
in the present case. The statement by the learned
Chief Justice that comes nearest to dealing with
the kind of problem involved in this case is that
cited by him in the Cylien case from his discussion
in the National Indian Brotherhood, et al. v.
Juneau, et al. (No. 2) case, that is to say, the
statement that what is meant by "decision or
order" in the Federal Court Act is the ultimate
decision or order taken or made by the tribunal
under its statute.
A somewhat closer situation was considered in
Canadian Human Rights Commission v. British
American Bank Note Company, [1981] 1 F.C. 578
(C.A.) where a ruling by a Human Rights Tri
bunal that it did not have jurisdiction to entertain
certain complaints was held not to be a "decision"
within the meaning of section 28 of the Federal
Court Act. The Tribunal had not purported to
dismiss the complaints. The situation may be con
trasted with that in Richard v. Public Service
Staff Relations Board, [1978] 2 F.C. 344 (C.A.)
where, upon concluding that it did not have juris
diction, the Adjudicator had exercised his statu
tory power and had dismissed the grievance. None
of these cases is, however, precisely comparable to
the present situation as here, if the Ergul reason
ing is correct, the statute itself requires that a
determination be made before an adjournment
under subsection 45 (1) can be made.
In my opinion, the Adjudicator's determination
is not a "decision" that is open to attack under
section 28 and I take that view whether the Ergul
reasoning is sound or not. It is, I think, obvious, if
the Ergul reasoning is not sound, that the determi
nation has no legal significance and will have none
until it is implemented, if ever, by the making of a
deportation order. That much, as I have already
mentioned, is conceded. But even if the Ergul
reasoning is sound, the determination so made is,
in my view, nothing more than an expression of
opinion and will not be a "decision" that is open to
review under section 28 until it is implemented by
the making of a deportation order. As I see it, the
determination is not at present binding on anyone.
The matter before the Adjudicator is not decided
by words but by the making of a binding order.
Until that occurs there is no finality. It would, I
think, be impossible to say that at this point the
Minister's power to issue a permit under section 37
is at an end. All that has happened is that the
inquiry has been adjourned and when it is resumed
the Adjudicator, in my opinion, will have before
him the whole subject matter of the inquiry just as
he had it before the adjournment. It will be open
to him then, if he sees fit on the evidence before
him, to reconsider and change any conclusion he
has reached or to implement his conclusions by
exercising his statutory authority to make a depor
tation order 6 . At that point and not before, as I see
it, there will be finality and subject matter for a
section 28 review, of the kind contemplated by
Chief Justice Jackett in the passage cited from his
6 See Pincheira v. Attorney General of Canada, et al., [1980]
2 F.C. 265 (C.A.), where Pratte J., speaking for the Court, said
at p. 267:
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 inquiry 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 proceeding
with the second stage of the inquiry provided for in section
47: why should he waste time determining 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?
decision in the National Indian Brotherhood case.
Counsel for the applicant emphasized a distinc
tion between what would fall within the meaning
of "decision" in section 28 and what would fall
within the meaning of "order". The meanings of
these two words are no doubt different. They do
not cover the same ground. There are decisions
which would not fall within the meaning of
"order" and perhaps orders that would with dif
ficulty be regarded as decisions. But there is, in my
view, a considerable area in which their meanings
overlap. Where an order is made, it will no doubt
fall within the meaning of "order" whether or not
the word "decision" is appropriate as well to
describe it. But there are statutes which give au
thority to make decisions which, in practice, are
not followed or implemented by a formal order.
There are also statutes which define what is to be
regarded as a decision of the tribunal. The expres
sion "decision or order" in section 28 is, in my
opinion, intended to embrace all such decisions as
well as orders without the necessity to be technical
or to distinguish between them.
The foregoing is sufficient to dispose of the
application and, accordingly, I would dismiss it. I
propose, however, to add some comments on the
Ergul decision since it was discussed at length in
the course of the argument and is involved in four
other applications that were heard at the same
sittings of the Court.
We were told that the Ergul decision has caused
a change in the practice formerly followed by
adjudicators and gives rise to administrative dif
ficulties. It is, of course, easy to perceive that the
appropriateness of a determination made before
the adjournment under subsection 45(1) that a
departure notice should be issued might be and
could even be expected to be affected by changes
of relevant circumstances in the interval before the
inquiry is resumed. Moreover, it would not ordi
narily be feasible to set a departure date before
adjourning under subsection 45(1) because the
adjudicator would have no means of estimating
how long the refugee status procedure might take.
A determination that a deportation order should
be made might also be unsuitable by the time the
inquiry was resumed. Having regard to these prob
lems, it seems to me that the statute should be
interpreted, if it can be, in a way that would avoid
them. In my opinion, subsection 45(1) can and
should be so read. It seems to me that the wording,
"if it is determined that ... a removal order or a
departure notice would be made or issued with
respect to that person", is not used to require that
the determination whether an order or a notice
would be appropriate be made before the adjourn
ment, but is meant to refer to the situation as
determined being one which will require the
making of a deportation order or the issuing of a
departure notice rather than allowing the person to
enter or remain in Canada, which under section 32
is also a conceivable result of the inquiry.
The wording of subsection 46(2) can, I think, be
read in the same way, though the tense of the verb
"would have been made" tends to obscure it in the
English language version. The French language
version, however, as I read it, presents no such
problem.
Moreover, doubts as to the correctness of the
Ergul reasoning have recently been expressed in
Vakili v. Department of Employment and Immi
gration, et al. (unreported, A-482-82, December
16, 1982). In the course of his reasons, Pratte J.,
with the concurrence of the other members of the
Court, said [at page 3]:
[TRANSLATION] As I have indicated at the hearing, however,
the many practical disadvantages that result from the judgment
rendered in the Ergul case have led me to question the value of
that decision, and this Court might, one day, state that it
should not be followed.
The Ergul decision also appears to me to be in
conflict with the opinion expressed by Ryan J.,
with the concurrence of the other members of the
Court, in Brannson v. Minister of Employment
and Immigration'.
Having regard to the doubt expressed in the
Vakili case and to the conflict with the opinion
expressed in the Brannson case, I think the Court
7 [1981] 2 F.C. 141 (C.A.) at pp. 147, 148 and 155.
can and should adopt what now appears to be the
better interpretation of subsection 45(1) and
should indicate that the interpretation put on it in
the Ergul decision should not be followed.
The application should be dismissed.
HEALD J.: I agree.
LALANDE D.J.: I concur.
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.