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T-169-84
Critty Jairaj (Applicant) v.
R. G. Smith, Adjudicator and Minister of Employment and Immigration (Respondents)
Trial Division, Addy J.—Vancouver, January 30 and 31, 1984.
Immigration — Practice — Minister deciding applicant not Convention refugee — Immigration Appeal Board refusing s. 70 application for redetermination of status pursuant to s. 71(1) Immigration Act, 1976 — S. 28 application to review Board's decision pending before Federal Court of Appeal — Senior immigration officer ordering resumption of inquiry — Applicant seeking prohibition — Relying on Gill v. Minister of Employment and Immigration, [1983j 2 F.C. 815 (C.A.) for argument inquiry cannot be resumed while Board's decision subject of review application by Federal Court — Although inquiry in Gill not resumed until after decision in Court of Appeal, nowhere in decision statement that inquiry must not proceed once Board determines applicant not Convention refugee — Statutory duty under s. 46(1) to resume inquiry as soon "as reasonably practicable" once senior immigration officer informed applicant not Convention refugee — Board's decision on status final in so far as Immigration Act, 1976 concerned — Act not requiring adjournment pending hearing by Federal Court — Prohibition must be based on clear legal right to remedy — Prohibition denied — Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 46(1),(2)(b), 70, 71(1).
CASE JUDICIALLY CONSIDERED
CONSIDERED:
Gill v. Minister of Employment and Immigration, [ 1983] 2 F.C. 815 (C.A.).
COUNSEL:
Andrew Z. Wlodyka for applicant. Cindy Roth for respondents.
SOLICITORS:
Shrimpton & Wlodyka, Vancouver, for applicant.
Deputy Attorney General of Canada for respondents.
The following are the reasons for order ren dered in English by
ADDY J.: UPON motion dated the 25th day of January, 1984 on behalf of the applicant for an order to show cause why a writ of prohibition should not issue and for other relief as set out in the notice of motion,
REASONS FOR ORDER
A decision was made by the Minister that the applicant was not a Convention refugee. The latter then made an application pursuant to section 70 [of the Immigration Act, 1976, S.C. 1976-77, c. 52] for redetermination of his claim to be allowed Convention refugee status. The Immigration Appeal Board, pursuant to subsection 71(1) refused to allow his application for redetermina- tion of his status. There is presently pending before the Federal Court of Appeal an application under section 28 of the Federal Court Act [R.S.C. 1970 (2nd Supp.), c. 10] on behalf of the applicant to set aside the last-mentioned decision.
Following the decision of the Immigration Appeal Board, and notwithstanding the pending application for review before the Federal Court of Appeal, a senior immigration officer has ordered, pursuant to subsection 46(1) that the inquiry before the Adjudicator be resumed.
The applicant is requesting that the Adjudicator be prohibited from proceeding with the inquiry, which is scheduled for resumption on the 1st Feb- ruary, 1984. He argues that the recent decision of the Court of Appeal in the case of Gill v. Minister of Employment and Immigration ([1983] 2 F.C. 815) is authority for the proposition that as long as the determination of the Board under paragraph 46(2) (b) is the subject of an application for review before the Federal Court of Appeal under section 28 of the Federal Court Act, the inquiry cannot be resumed.
I have read the reasons for judgment of Mr. Justice Heald in the Gill case (concurred in by the other two members of the Court) most carefully and I disagree with counsel for the applicant's interpretation of those reasons. Although it is true that in fact the inquiry was not resumed until after
the decision of the Court of Appeal, nowhere in the decision is there any statement that at law the inquiry must not be proceeded with once it has been finally determined by the Board, pursuant to paragraph 46(2)(b), that the applicant is not a Convention refugee. On the contrary, there is a statutory duty under subsection 46(1) to see that the inquiry is resumed as soon "as reasonably practicable" once the senior immigration officer has been informed that the applicant is not a Convention refugee. The application for redetermi- nation under subsection 70(1) was unsuccessful and the senior immigration officer was informed by the Immigration Appeal Board that the appli cant was not a Convention refugee. This constitut ed a final decision on that issue in so far as the Immigration Act, 1976 is concerned. There is nothing in the Act which says that an inquiry is to be adjourned or delayed pending the hearing of the application before the Federal Court of Canada. Prohibition must be based on a clear, legal right to the remedy.
ORDER
The motion is dismissed with costs.
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