A-498-82
Narinder Singh Gill (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 — Application to review and set aside deporta
tion order — S. 27 inquiry adjourned by Adjudicator follow
ing refugee status claim — Refugee status denied after all
available remedies exhausted — Whether applicant entitled,
upon resumption of inquiry, to second application for refugee
status and to second adjournment because procedure followed
first time not in accordance with Ergul v. Minister of Employ
ment and Immigration — Interpretation of ss. 45 and 46 of
Immigration Act, 1976 — Application dismissed — Immigra
tion Act, 1976, S.C. 1976-77, c. 52, ss. 27, 32(6), 45, 46, 70, 71
— Immigration Regulations, 1978, SOR/78-172, s. 35.
Judicial review — Applications to review — Immigration —
Deportation order — Whether, following refusal of refugee
status claim after all available remedies exhausted, applicant
entitled to second application for refugee status and to second
adjournment because procedure followed first time not in
accordance with Ergul v. Minister of Employment and Immi
gration — Interpretation of ss. 45 and 46 of Act — Applica
tion dismissed — Immigration Act, 1976, S.C. 1976-77, c. 52,
ss. 27, 32(6), 45, 46, 70, 71 — Immigration Regulations, 1978,
SOR/78-172, s. 35 — Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, s. 28.
During an inquiry under section 27 of the Immigration Act,
1976, the applicant claimed that he was a Convention refugee.
The inquiry was adjourned, and after all available remedies had
been exhausted, the applicant was denied refugee status. When
the inquiry was resumed, the applicant asked for a second
adjournment in order to make a second claim for refugee
status. The Adjudicator refused this request and issued a
deportation order. The applicant alleges reviewable error
because the "depart/deport" decision not having been made
before the adjournment, that adjournment and the resumption
were not, as decided in the Ergul case, made under sections 45
and 46 respectively, entitling the applicant to his "first" section
45 adjournment for determination of his claim for refugee
status.
Held, the application should be dismissed. The interpretation
of sections 45 and 46 in the Ergul case was unduly restrictive
and disregarded the legislative scheme of the Act. It failed to
take into consideration the adjudicator's duties under subsec
tion 32(6) before making a "depart/deport" decision and issu-
ing a departure notice: to consider all the circumstances of the
case and to specify a date of departure. That obligation would
also be unrealistic since the adjudicator is not, at that point, in
a position to realistically determine the departure date. The
time for consideration of these matters is clearly the time when
he is making the final "depart/deport" decision. The interpreta
tion in Brannson is to be preferred to that in Ergul because it
renders the legislative scheme workable and in accordance with
the legislative intention of Parliament. Accordingly, the origi
nal adjournment in this case was a section 45 adjournment and
the resumption, a section 46 resumption. The procedure fol
lowed by the Adjudicator was therefore correct.
CASES JUDICIALLY CONSIDERED
APPLIED:
Brannson v. Minister of Employment and Immigration,
[1981] 2 F.C. 141 (C.A.).
NOT FOLLOWED:
Ergul v. Minister of Employment and Immigration,
[1982] 2 F.C. 98 (C.A.).
REFERRED TO:
Vakili v. Minister of Employment and Immigration, et
al., judgment dated December 16, Federal Court—
Appeal Division, A-482-82, not yet reported.
COUNSEL:
K. Zaifman for applicant.
B. Hay for respondent.
SOLICITORS:
Margolis, Kaufman, Cassidy, Zaifman,
Swartz, Winnipeg, for applicant.
Deputy Attorney General of Canada, for
respondent.
The following are the reasons for judgment
rendered in English by
HEALD J.: This is a section 28 application to
review and set aside the deportation order made on
June 11, 1982 by Adjudicator K. C. Flood against
this applicant.
Following a report made pursuant to section 27
of the Immigration Act, 1976 [S.C. 1976-77, c.
52], Adjudicator Flood held the inquiry called for
by the Act and found, on the basis of the evidence
adduced at the inquiry:
(a) that the applicant was a person described in
paragraph 27(2)(b) of the Act (a person engag-
ing in employment in Canada contrary to the
Immigration Regulations, 1978 [SOR/78-172]);
(b) that the applicant was also a person
described in paragraph 27(2)(e) of the Act (a
person in Canada who entered Canada as a
visitor and who has remained in Canada after
ceasing to be a visitor); and
(c) that the applicant was also a person
described in paragraph 27(2)(f) of the Act (a
person in Canada who is not a Canadian citizen
and who is not a permanent resident of Canada,
who eluded inquiry under the Immigration Act,
1976).
At this juncture, the applicant made a claim for
Convention refugee status. The transcript discloses
that the following exchange then took place (Case,
page 20):
ADJUD.: Mr. Gill, I want to read you Section 45 of the
Immigration Act and I would like to have Mrs. Nanra interpret
this so that I am sure that you understand it.
"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 adjourned and that person shall
be examined under oath by a Senior Immigration Officer
respecting his claim."
"Convention refugee means any person who, by reason of a
well-founded fear of persecution for reasons of race, religion,
nationality, membership in a particular social group or politi
cal opinion, (a) is outside the country of his nationality and is
unable or, by reason of such fear, is unwilling to avail himself
of the protection of that country, or (b) not having a country
of nationality, is outside the country of his former habitual
residence and is unable or, by reason of such fear, is unwill
ing to return to that country."
Do you believe yourself to be a Convention refugee according
to that definition?
SUBJECT: Yes.
ADJUD.: In that event the Inquiry will be adjourned in order to
permit you to make a claim to refugee status. You will be
examined by a Senior Immigration Officer under oath concern
ing your claim to refugee status. At that time you have the
right to be represented by Counsel if you choose. You will be
provided with a copy of the statement that is taken from you by
the Senior Immigration Officer and you will be given an
opportunity to review that statement before it is sent to the
Refugee Status Advisory Committee. That Committee will
consider your claim and will make a recommendation to the
Minister concerning whether or not you are a Convention
refugee.
There was then a discussion as to whether the
applicant could be released from custody and
thereafter the inquiry was adjourned.
Subsequently the respondent Minister refused
the applicant's claim to Convention refugee status
and the Immigration Appeal Board refused to
allow the applicant's application for redetermina-
tion to proceed and determined that the applicant
was not a Convention refugee pursuant to subsec
tion 71(1) of the Act. The applicant then made a
section 28 application to this Court to review and
set aside that decision of the Immigration Appeal
Board. The section 28 application was dismissed
with costs [Federal Court, A-47-81, judgment
dated January 25, 1983 (C.A.)]. Following that
decision, Adjudicator Flood resumed the inquiry.
The transcript reveals that at the commencement
of the resumed inquiry, Adjudicator Flood said
(Case, page 21):
This is a resumption of an inquiry concerning Narinder Singh
Gill. The Inquiry is resumed pursuant to section 35(1) of the
Regulations.
Section 35 of the Immigration Regulations, 1978,
reads as follows:
35. (1) The adjudicator presiding at an inquiry may adjourn
the inquiry at any time for the purpose of ensuring a full and
proper inquiry.
(2) Where an inquiry is adjourned pursuant to these Regula
tions or subsection 29(5) of the Act, it shall be resumed at such
time and place as is directed by the adjudicator presiding at the
inquiry.
(3) Where an inquiry has been adjourned pursuant to the
Act or these Regulations, it may be resumed by an adjudicator
other than the adjudicator who presided at the adjourned
inquiry with the consent of the person concerned or where no
substantive evidence has been adduced.
(4) Where substantive evidence has been adduced at an
adjourned inquiry and the person concerned refuses to consent
to the resumption of the inquiry by an adjudicator other than
the adjudicator who presided at the adjourned inquiry, the
inquiry shall be recommenced.
At this point in the proceedings, applicant's coun
sel objected to the Adjudicator's jurisdiction to
resume the inquiry, basing his objection on the
decision in this Court in Ergul v. Minister of
Employment and Immigration.' The Adjudicator
distinguished Ergul from the present case on the
basis that in Ergul the resumption of the inquiry
after the matter of refugee status had been finally
determined was conducted by a different adjudica
tor than the one who conducted the inquiry before
the adjournment to determine refugee status
' [1982] 2 F.C. 98 [C.A.].
whereas in the case at bar the same adjudicator
presided at both the original inquiry prior to the
refugee status adjournment and at the resumed
inquiry after final determination of the refugee
status claim. Accordingly, he decided that he had
jurisdiction to continue the inquiry and to proceed
to make the decision which he was, required to
make pursuant to subsection 32(6) of the Act,
namely, whether this case was a proper one for the
issuance of a deportation order or a departure
notice. However, as the Adjudicator was about to
hear evidence on the matter of the subsection
32(6) determination, applicant's counsel made a
second claim for refugee status and asked that the
inquiry be adjourned pursuant to the provisions of
subsection 45 (1) of the Act. 2 The Adjudicator
thereupon deferred his decision on this request
pending his decision under subsection 32(6) as to
whether this was a proper case for a deportation
order or a departure notice. His reason for this
deferral was expressed as follows (Case, page 28):
I think ERGUL makes it abundantly clear that I have to at least
make a decision on depart/deport before considering an
application for adjournment pursuant to 45(1).
He then proceeded to hear evidence on the subsec
tion 32(6) determination, thereafter concluding as
follows (Case, page 35):
Based on the circumstances of your case and based on my belief
that you are not willing to leave Canada, I order that you be
deported from Canada.
At this point, he proceeded to deal with the request
of counsel for an adjournment to enable the appli
cant to make a second claim for refugee status and
in rejecting counsel's request, he had this to say
(Case, pages 37 and 38):
2 Said subsection 45(1) reads as follows:
45. (1) Where, at any time during an inquiry, the person
who is the subject of the inquiry claims that he is a Conven
tion 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 immigration officer respecting his
claim.
There is nothing in the ERGUL decision which would suggest
that the person ought to be given another opportunity to claim
refugee status.
It seems to me, in your situation, that the Act requires that at
an Inquiry you should be given an opportunity to claim refugee
status and to pursue that claim, both through the Refugee
Status Advisory Committee the Immigration Appeal Board and
the Federal Court. That has now been done and I am not in a
position to look at the decision rendered by those bodies and to
find fault with them.
It seems to me that the scheme of the Act requires that you be
given such an opportunity. You have had that opportunity.
That obligation has been disposed of and without an express
view of the Court that that process was tainted, by a premature
adjournment, I do not believe that I am now compelled to
adjourn this Inquiry in order that you may make another claim
to refugee status. Accordingly the request for an adjournment
under Section 45(1) is denied.
It was the submission of counsel for the applicant
that the adjournment to be made when a person
claims refugee status during the course of an
inquiry, is made mandatory pursuant to the provi
sions of subsection 45 (1) of the Act supra. He
characterized this adjournment as a statutory
adjournment. He further submitted that the
resumption of the inquiry after the final determi
nation of refugee status is required by section 46 of
the Act. 3 He described that resumption as a statu-
3 Section 46 reads as follows:
46. (1) Where a senior immigration officer is informed
pursuant to subsection 45(5) that a person is not a Conven
tion refugee, he shall, as soon as reasonably practicable,
cause the inquiry concerning that person to be resumed by
the adjudicator who was presiding at the inquiry or by any
other adjudicator, but no inquiry shall be resumed in any
case where the person makes an application to the Board
pursuant to subsection 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
Convention 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.
tory resumption. Counsel then referred to the
statement of Adjudicator Flood referred to supra,
(Case, page 20) to the effect that subject inquiry
was being resumed pursuant to subsection 35(1) of
the Immigration Regulations, 1978 quoted supra.
On this basis, it was counsel's submission that
since, according to subsection 45(1), adjournments
to determine refugee status must always be made
pursuant to that provision of the Act, and since
resumptions after final determination of that
status must always be made under the provisions
of section 46 of the Act, a resumption pursuant to
subsection 35 (1) of the Regulations was improper
and amounted to a nullity. Thus, in his view, since
there had not been a section 45 adjournment and a
section 46 resumption in this case, the applicant
was entitled to make a second claim for refugee
status which would result in a section 45 adjourn
ment, a determination of that second refugee claim
and then a section 46 resumption of the inquiry
after the final determination of the second refugee
claim. He therefore alleges reviewable error
because the Adjudicator refused the applicant's
second claim for refugee status and the adjourn
ment application which accompanied it. He said
that in refusing the section 45 adjournment, the
Adjudicator was depriving the applicant of his
statutory right to an adjournment under that
section.
In respect of these submissions, I would observe,
initially, that I agree with counsel for the applicant
that the adjournment which is mandatory upon a
claim for refugee status being advanced during an
inquiry is an adjournment pursuant to the provi
sions of section 45 of the Act. It is also clear from
this transcript (Case, page 20 supra) that the
Adjudicator purported to adjourn pursuant to
section 45 since he read to the applicant the
relevant portions of subsection 45 (1) and then
adjourned the inquiry to permit the applicant's
refugee claim to be processed. That adjournment
took place on February 19, 1980. The inquiry
resumed on June 11, 1982. During that interval,
this Court decided the Ergul case on October 9,
1981. In Ergul the facts were similar to those in
the case at bar with one exception, namely that on
the resumption of the inquiry after the determina
tion of refugee status, a different adjudicator was
presiding. The applicant did not consent to the
change of adjudicator and submitted that since
substantive evidence had been adduced, the inqui
ry could not be resumed by a new adjudicator
pursuant to Regulation 35(3) supra. He also relied
on Regulation 35(4) supra, in submitting that the
new adjudicator erred in not recommencing the
inquiry in the circumstances of this case. This
Court allowed the applicant's section 28 applica
tion. The basis for this decision appears on pages
101 and 102 of the report and reads as follows:
It is clear, in my opinion, that subsection 35(3) of the
Regulations does not apply to the resumption of an inquiry
pursuant to section 46 of the Act. If it did, the result would be
that the Regulation would make illegal a course of conduct
expressly authorized by the Act. This cannot be. A regulation
made by the Governor in Council cannot amend the Act.
What is not so clear, however, is whether the inquiry here in
question was resumed pursuant to section 46. If it was, it could
be resumed before a different adjudicator without the appli
cant's consent (subsection 46(1)), but if it was not, a different
adjudicator could not, without the applicant's consent, preside
at the resumption of the inquiry (subsection 35(3) of the
Regulations).
Subsection 46(2) describes the duty of the adjudicator at the
resumption of an inquiry following an adjournment pursuant to
subsection 45(1). That duty is neither to make an investigation
nor to determine anything but, merely, to "make the order or to
issue the departure notice that would have been made or
issued" if the subject of the inquiry had not claimed to be a
refugee. Subsection 46(2) does not require the adjudicator to
do anything more than that because, in the usual course of
events, that is all that remains to be done to conclude the
inquiry. When subsection 45(1) is read with subsection 46(2) it
clearly provides, in my view, that the adjudicator presiding at
the commencement of the inquiry must, before adjourning, not
only find that the allegations of the report made in respect of
the subject of the inquiry are well founded, but also determine
whether a removal order should be made or a departure notice
issued.
If an adjudicator presiding over an inquiry during which a
claim to refugee status is made, adjourns the inquiry prema
turely without having made the determination required by
subsection 45(1), the inquiry is not, strictly speaking, adjourned
pursuant to subsection 45(1). And when that same inquiry is
later resumed, its resumption is not governed by subsection
46(1) since the inquiry is not resumed for the sole purpose
mentioned in subsection 46(2) but also for the purpose of
making the determination that should normally have been
made before the adjournment. It follows that in such a case,
subsection 35(3) of the Regulations applies and the inquiry
cannot, without the consent of the person concerned, be
resumed by an adjudicator other than the adjudicator who
presided at the commencement of the inquiry.
In the present case, it is common ground that the Adjudica
tor who commenced the inquiry adjourned it immediately after
finding that the allegations of the section 27 report were well
founded without determining whether a deportation order
should be made or a departure notice be issued. The inquiry,
therefore, could not, without the applicant's consent be
resumed by a different adjudicator.
For these reasons, I would grant this application, set aside
the decision under attack and refer the matter back to the
appropriate senior immigration officer who shall cause the
inquiry concerning the applicant to be resumed by the
Adjudicator who commenced it or, if this is not possible, cause
a new inquiry to be held.
In my view, the ratio in Ergul is to the effect that
the adjudicator must, before adjourning the inqui
ry for determination of refugee status, in addition
to finding that the allegations in the section 27
report have been proven, also decide whether in
the circumstances of the case, a deportation order
or a departure notice should issue. 4 The panel of
the Court hearing Ergul apparently reached this
conclusion based on its interpretation of subsec
tions 45(1) and 46(2) when the two subsections
are read together. It was their view that the duty
of the adjudicator at the resumed inquiry was to
make the order or to issue the departure notice
that would have been made or issued if a refugee
claim had not been made. In my opinion, and with
every deference to the panel of the Court deciding
Ergul, such an interpretation of the words used in
sections 45 and 46 is unduly restrictive and fails to
have regard to the legislative scheme of the Act
when considered in its entirety. Sections 45 and 46
are contained in that section of the Act dealing
with the Determination of Refugee Status. How
ever, it seems clear that those sections should, if
possible, be read and construed so as not to frus
trate or distort the clear purpose and objects of
other provisions of the Act. In this context, I refer
4 This determination which was necessary in Ergul and is
also necessary in the case at bar pursuant to subsection 32(6) is
sometimes referred to as a "depart/deport" determination.
specifically to subsection 32(6) of the Act 5 which
sets out the adjudicator's duty in respect of persons
described in certain paragraphs as being
inadmissible. 6 Pursuant to subsection 32(6), the
adjudicator must make the depart/deport decision:
(a) having regard to all the circumstances of the
case, and
(b) after he has decided whether or not the
person concerned will leave Canada on or before
a date to be specified by him.
If the Ergul decision is correct, the adjudicator
must make that depart/deport decision before he
adjourns the inquiry for the refugee determination.
The scheme for refugee determination is contained
in sections 45, 70 and 71 of the Act. Section 45
provides that upon a claim being made, the claim
ant is examined under oath as to the details of his
claim. The transcript of that examination together
with the claim is referred to the Minister who is
required to refer the claim and the transcript to
the Refugee Status Committee. After having
obtained the advice of that Committee, the Minis
ter is required to determine whether or not the
claimant is a Convention refugee. Where the Min
ister's determination is unfavourable to the claim
ant, section 70 entitles the claimant to apply to the
Immigration Appeal Board for a redetermination
of his claim. Sections 70 and 71 require the Board
to make a preliminary determination in respect of
each refugee claim and to form an opinion as to
5 Subsection 32(6) reads as follows:
32....
(6) Where an adjudicator decides that a person who is the
subject of an inquiry is a person described in subsection
27(2), he shall, subject to subsections 45(1) and 47(3), make
a deportation order against the person unless, in the case of a
person other than a person described in paragraph 19(1)(c),
(d), (e), (/) or (g) or 27(2)(c), (h) or (i), he is satisfied that
(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.
6 The applicant here and the applicant in Ergul were found
to be inadmissible under paragraphs which, pursuant to subsec
tion 32(6) require a depart/deport determination.
whether or not there are reasonable grounds to
believe that a claim could, upon a full hearing of
the claim, be established. The Board is required to
form this opinion on the basis of the transcript of
the examination under oath required by section 45
and a declaration under oath made by the claim
ant. Subsection 70(2) enumerates the material
which may be included in that declaration under
oath. If the Board decides, on this material, in
favour of the claimant, the application is allowed
to proceed to a full hearing before the Board. If
the Board's opinion is adverse to the claimant, it is
required to refuse to allow the application to pro
ceed and to determine that the person concerned is
not a Convention refugee. In the case at bar, the
Minister's decision was unfavourable to the appli
cant. Likewise, the section 71 determination of the
Immigration Appeal Board was also unfavourable
to the applicant, the claim was not allowed to
proceed to a full hearing and a determination was
made that the applicant was not a Convention
refugee. The applicant then launched a section 28
application to review and set aside that decision of
the Board. This Court dismissed that section 28
application. The inquiry was then resumed. A
period of almost 16 months was consumed by this
three step appeal procedure which every claimant
to refugee status is entitled to pursue. It is my
experience, after hearing innumerable section 28
applications of this nature, that the 16-month time
delay in this case is not unusual. The time con
sumed by the appeal procedures will vary from
case to case depending on the particular circum
stances of each case but a time interval of a year
or more is not unusual.
The significant factor relating to this time delay
as applied to the adjudicator's duty under subsec
tion 32(6) is that if Ergul is right and the
adjudicator must make that decision before the
refugee determination, he is put in an impossible
position. Before he can issue a departure notice, he
must satisfy himself that the applicant will leave
Canada on or before a certain date. That date
must be inserted in the departure notice. Because
the refugee determination procedure realistically
and customarily takes considerable time to be
finalized, how would it ever be possible for an
adjudicator to order a departure notice? When he
adjourns the inquiry, he really has no idea of when
it can be resumed and completed. Thus, I cannot
conceive of a case where he could insert a realistic
date in a departure notice at the time he adjourns
the inquiry for refugee determination.
Furthermore, the reasons in Ergul suggest that
the adjudicator, upon resumption pursuant to sub
section 46(2), is required to issue the departure
notice or removal order that was decided by the
adjudicator at the section 45 adjournment. In this
regard, Pratte J., speaking for the Court, said [at
pages 101-102]:
Subsection 46(2) does not require the adjudicator to do any
thing more than that because, in the usual course of events,
that is all that remains to be done to conclude the inquiry.
With every deference, I must respectfully disagree
with that view of the matter because it fails to take
into consideration the duties imposed upon the
adjudicator under subsection 32(6) before he
makes his depart/deport decision. As stated earlier
herein, the adjudicator must consider all the cir
cumstances of the case and must satisfy himself
that the applicant will leave Canada on or before a
specified date before he is entitled to issue a
departure notice. It is clear to me that the time for
a consideration of these matters is the time when
he is making the final depart/deport decision, not
some date a year or two earlier. The circumstances
may have changed considerably. The applicant's
willingness and/or ability may also have changed
drastically.
If the construction adopted in Ergul of sections
45 and 46 is correct, then the adjudicator's origi
nal depart/deport decision made before refugee
determination is, in a sense, a meaningless deci
sion. I agree with respondent's counsel's descrip
tion of it as a decision made in a vacuum. It would
not really be a decision at all but merely an
expression of opinion as to the state of affairs at a
point in time months or even years before the
decision on depart/deport is required to be made.
We were advised by respondent's counsel that,
before the Ergul decision, the practice adopted by
the Adjudicator in this case was uniformly fol
lowed by the adjudicators conducting inquiries
where claims for refugee status were advanced
during the course of an inquiry. That practice was
approved in an earlier decision in this Court in the
case of Brannon v. Minister of Employment and
Immigration.' In that case, Ryan J. said at pages
155 and 156:
At the resumed inquiry, the Adjudicator should proceed on
the basis that Mrs. Healy had erred in law in deciding that the
offence of which the applicant had been convicted would, had it
been committed in Canada, constitute an offence against sec
tion 339 of the Criminal Code. Such a determination is not
final. It may be changed after an inquiry has been recom
menced under subsection 46(1) of the Immigration Act, 1976. I
would refer to this passage from the reasons for judgment of
Mr. Justice Pratte in Pincheira v. Attorney General of Canada
dated February 8, 1980 ([1980] 2 F.C. 265 [C.A.] at page
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 ....
Having in mind the applicant's second submission of error, I
would also make it clear that the resumed inquiry may proceed
before Mr. Delaney or another designated Adjudicator whether
or not the applicant consents. In his submission that a person
under inquiry must consent where an inquiry is continued under
subsection 46(1) of the Act, counsel for the applicant relied on
subsection 35(3) of the Immigration Regulations, 1978, SOR/
78-172. I quote section 35:
35. (1) The adjudicator presiding at an inquiry may
adjourn the inquiry at any time for the purpose of ensuring a
full and proper inquiry.
(2) Where an inquiry is adjourned pursuant to these
Regulations or subsection 29(5) of the Act, it shall be
resumed at such time and place as is directed by the
adjudicator presiding at the inquiry.
(3) Where an inquiry has been adjourned pursuant to the
Act or these Regulations, it may be resumed by an adjudica
tor other than the adjudicator who presided at the adjourned
inquiry with the consent of the person concerned or where no
substantive evidence has been adduced.
(4) Where substantive evidence has been adduced at an
adjourned inquiry and the person concerned refuses to con
sent to the resumption of the inquiry by an adjudicator other
than the adjudicator who presided at the adjourned inquiry,
the inquiry shall be recommenced.
This section of the Regulations must be read against the
terms of subsection 46(1) of the Act itself. The subsection
provides:
46. (1) Where a senior immigration officer is informed
pursuant to subsection 45(5) that a person is not a Conven
tion refugee, he shall, as soon as reasonably practicable,
cause the inquiry concerning that person to be resumed by
the adjudicator who was presiding at the inquiry or by any
other adjudicator, but no inquiry shall be resumed in any
case where the person makes an application to the Board
pursuant to subsection 70(1) for a redetermination of his
claim that he is a Convention refugee until such time as the
7 [1981] 2 F.C. 141 [C.A.].
Board informs the Minister of its decision with respect
thereto.
The language of subsection 46(1) is imperative. The inquiry
must in the circumstance specified be resumed. I cannot read
subsection 35(3) of the Regulations as being intended to vest in
the person under inquiry a power to prevent the statutory
mandate from being performed by refusing consent; I construe
it as not being applicable to such a case. The subsection of the
Regulations has ample scope within which to operate apart
from an inquiry resumed under subsection 46(1) of the Act.
I agree with that view of the matter. Accordingly,
I think that the original adjournment of this case
on February 19, 1980 was a section 45 adjourn
ment and that the resumption on June 11, 1982
was a section 46 resumption regardless of the fact
that it was characterized by the Adjudicator as
being a Regulation 35 adjournment. That being so,
the procedure followed by the Adjudicator was
correct. It follows therefore that the applicant was
not entitled to make a second application for
refugee status and that the Adjudicator was right
to refuse that application and the adjournment
application made in furtherance thereof.
Before concluding, I observe that in a very
recent decision of this Court, 8 Pratte J. who wrote
the reasons for the Court in Ergul said at page 3
of his reasons:
Comme je l'ai indiqué â l'audience, cependant, les nombreux
inconvénients pratiques qui résultent de l'arrêt rendu dans
l'affaire "Ergul" me font maintenant douter de la valeur de
cette décision que cette Cour devra peut-être, un jour, déclarer
ne pas devoir être suivie.
I agee with Mr. Justice Pratte that the effect of
the Ergul decision, from a practical point of view
is to give rise to innumerable problems in the
administration of the Immigration Act, 1976.
That, in itself, is not sufficient, in my view, to
refuse to follow the Ergul decision. If the interpre
tation given to the language used in sections 45
and 46 is the only one of which the words used are
reasonably capable, then the resulting administra
tive difficulties and uncertainty arising therefrom
would have to be remedied by Parliament through
such amendments as it considered necessary and
desirable. However, in my opinion, the interpreta
tion to the sections which was given by the Court
in Brannson (supra) is the correct one and one
B Vakili v. Minister of Employment and Immigration, et al.,
File No. A-482-82 [judgment dated December 16, 1982].
which renders the legislative scheme workable and
in accordance with the legislative intention of Par
liament. I am satisfied that what is intended in
these two sections is that the adjudicator, upon
receipt of a refugee claim in the course of an
inquiry, must continue the inquiry to the point
where he is in a position to decide whether a
removal order or a departure notice should be
made, but for the refugee claim. He must then
adjourn the inquiry so that the refugee claim can
be processed. But he does not and should not
decide at this juncture which of the two orders
should be made. He is required only to conclude
that one or the other should be made. Then, upon
the resumption, pursuant to subsection 46(2), he is
required to decide which of the two orders should
be made in the circumstances of each particular
case. At this point, he must observe the provisions
of subsection 32(6) supra. In my view, this proce
dure, which was the pre-Ergul procedure, is the
correct one to be followed since it conforms to the
true meaning of the words used in the statute.
For, these reasons, I would dismiss the section 28
application.
THURLOW C.J.: I concur.
LALANDE D.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.