A-1140-82
Roy Orlando Green (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
Court of Appeal, Heald J., Lalande and McQuaid
D.JJ.—Toronto, August 15 and 19, 1983.
Immigration — Application to review and set aside deporta
tion order — Applicant allegedly working without permission
and overstaying — Whether Adjudicator obliged to grant
adjournment of inquiry pending Governor in Council's con
sideration of request under s. 115(2) Immigration Act, 1976
for facilitation of admission — Jiminez-Perez case not estab
lishing obligation — Statutory scheme requiring expeditious
proceedings — Regulations empowering to adjourn only to
ensure full and proper inquiry — Inquiry not concerned with s.
115(2) compassionate and humanitarian considerations —
Unusual facts in Tam case distinguishable — Potential paral
ysis of inquiries — Duty not expressly imposed by statute —
Application dismissed — Immigration Act, 1976, S.C. 1976-
77, c. 52, ss. 2(1), 27(2)(b),(e), 45(1), 104, 115(2) — Immigra
tion Regulations, 1978, SOR/78-172, s. 35(1) — Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
Following the applicant's arrest, an inquiry was convoked to
examine allegations that he had worked in Canada without
permission, and that he was an overstaying visitor. Before any
evidence was introduced, counsel for the applicant advised the
Adjudicator that he had delivered a letter to the Commission.
This letter, counsel stated, set forth certain humanitarian and
compassionate factors regarding the applicant's case and, pur
suant to subsection 115(2) of the Immigration Act, 1976 (the
"Act"), requested the Governor in Council to consider those
circumstances with a view to facilitating the applicant's admis
sion into Canada. Counsel asked the Adjudicator to adjourn the
inquiry pending consideration of this request; however, the
Adjudicator refused to grant an adjournment, proceeded to
hear evidence and submissions, and issued a deportation order.
An application was made to the Federal Court under section 28
of the Federal Court Act.
Held, the application is dismissed.
The decision of the Court of Appeal in Jiminez-Perez et al.
v. Minister of Employment and Immigration, et al. is not
relevant in the circumstances of the case at bar. In Jiminez-
Perez, no application was made under subsection 115(2) until
after the completion of the inquiry (which concerned allega
tions against Jiminez-Perez similar to those faced by the
present applicant). Against this background, the Court estab
lished: first, that an application under subsection 115(2) may
be made quite apart from an inquiry being held pursuant to the
Act; and secondly, that if such an application is made, the
officials of the Immigration Department are obliged to accept it
and forward it to the proper authorities, and the applicant is
entitled to a decision upon it. Jiminez-Perez does not stand for
the proposition that, on receipt of a subsection 115(2) applica
tion in the course of an inquiry, an adjudicator is required
immediately to adjourn the proceedings until such time as the
Governor in Council has ruled upon the application.
Quite the contrary, given the scheme of the Act and Regula
tions, the adjudicator clearly is required to pursue the inquiry
with as much dispatch as the particular circumstances allow. In
fact, according to subsection 35(1) of the Regulations, he is
empowered to order an adjournment only "for the purpose of
ensuring a full and proper inquiry"; and the compassionate and
humanitarian considerations with which subsection 115(2) is
concerned were outside the scope of the inquiry in this case.
Another judgment invoked by the applicant is Tam v. Minis
ter of Employment and Immigration. The Tam decision, how
ever, was based on somewhat unusual facts, which are distin
guishable from those presently before the Court. Tam was
granted an adjournment so that he might make an application
(under section 37 of the Act); moreover, the Minister had
undertaken to reply to the application, but had not yet done so
when the inquiry was resumed. In the instant case, though, no
such adjournment was granted, nor was there an undertaking
from anyone in authority to respond to Green's application.
If, on the facts of this case, the Adjudicator were found to be
under an obligation to grant an adjournment, it would follow
that every inquiry under the Act could be stopped for a
considerable period—that is, until the Governor in Council had
rendered a decision—simply by making a subsection 115(2)
application once the inquiry was underway. This in turn would
have the effect of disrupting and paralyzing the conduct of
inquiries under the Act.
The prospect of such a consequence, like the obligation to
proceed expeditiously implied by the statutory scheme, should
preclude a finding that the Adjudicator is under a duty to
adjourn in the circumstances of this case, unless Parliament
has, by appropriate statutory wording, expressly imposed such
a duty. This was indeed done elsewhere in the Act, but not in
any provision relevant to the case at bar.
CASES JUDICIALLY CONSIDERED
DISTINGUISHED:
Tam v. Minister of Employment and Immigration,
[1983] 2 F.C. 31; 46 N.R. 1 (C.A.).
CONSIDERED:
Jiminez-Perez et al. v. Minister of Employment and
Immigration, et al., [1983] 1 F.C. 163; 45 N.R. 149
(C.A.).
COUNSEL:
D. M. Greenbaum, Q.C. for applicant.
M. W. Duffy for respondent.
SOLICITORS:
D. M. Greenbaum, Q.C., Toronto, for
applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
HEALD J.: The principal issue raised by this
section 28 [of the Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10] application is, in essence, the
parameters of two recent decisions of this Court
and their application, if any, to the factual situa
tion in the case at bar.' The applicant herein was
arrested pursuant to section 104 of the Immigra
tion Act, 1976 [S.C. 1976-77, c. 52], and an
inquiry convoked in which it was alleged that he,
being neither a Canadian citizen nor a permanent
resident of Canada, entered Canada as a visitor
and overstayed his visitor's authorization and,
additionally, that he was a person who has worked
in Canada without permission to work, thereby
being a member of the inadmissible classes
described in paragraphs 27(2)(b) and (e) of the
Immigration Act, 1976.
Before any substantive evidence was adduced at
the inquiry, counsel for the applicant advised the
Adjudicator that he had, that day, delivered a
letter to the Commission detailing certain factors
of a humanitarian and compassionate nature relat
ing to the applicant's case and asking that the
Governor in Council consider these circumstances
with a view to facilitating the applicant's admis
sion into Canada. 2 Counsel relied on the provisions
' Jiminez-Perez et al. v. Minister of Employment and Immi
gration, et al., [1983] 1 F.C. 163; 45 N.R. 149 (C.A.); and
Tam v. Minister of Employment and Immigration, [1983] 2
F.C. 31; 46 N.R. 1 (C.A.).
2 Since "admission" is defined in subsection 2(1) as "entry"
or "landing" and since "landing" is therein defined as "lawful
permission to come into Canada to establish permanent resi
dence", the application under subsection 115(2), on these facts,
was an application to the Governor in Council to grant the
applicant permission to establish permanent residence in
Canada.
of subsection 115(2) of the Immigration Act,
1976' and the Jiminez-Perez decision supra and,
as a consequence, requested an adjournment of the
inquiry so that the application under subsection
115(2) could be considered by the Governor in
Council. The Adjudicator refused this request and
after hearing evidence and submissions, proceeded
to issue a deportation order against the applicant.
In so far as the Jiminez-Perez case is concerned,
I have reached the conclusion that it has no
application to the situation in this case. Jiminez-
Perez was the subject of an inquiry alleging that
he, like this applicant, had overstayed as a visitor
and had engaged in unauthorized employment.
The inquiry was completed and a departure notice
was issued requiring Jiminez-Perez to leave
Canada on or before July 15, 1980. Unlike the
case at bar, no subsection 115(2) application was
made during his inquiry. The application to allow
Jiminez-Perez's fiancée to sponsor his application
for permanent residence while he remained in
Canada was refused. This Court, speaking through
Le Dain J., after considering the provisions of
subsection 115(2) supra and, in particular, that
portion of the subsection which authorizes the
Governor in Council to facilitate admission due to
the existence of compassionate or humanitarian
considerations, held [at page 171 F.C.] that:
... a prospective applicant is entitled to an administrative
decision upon the basis of an application, and there is, there
fore, a correlative duty to permit him to make the application.
The application, including the request for exemption and the
sponsorship of the application, must be considered and disposed
of by decision ....
In my view, the Jiminez-Perez case establishes:
1. that a subsection 115(2) application to the
Governor in Council may be made quite apart
from an inquiry being held pursuant to the Immi
gration Act, 1976, and
Subsection 115(2) reads as follows:
115. ...
(2) The Governor in Council may by regulation exempt
any person from any regulation made under subsection (1) or
otherwise facilitate the admission of any person where the
Governor in Council is satisfied that the person should be
exempted from such regulation or his admission should be
facilitated for reasons of public policy or due to the existence
of compassionate or humanitarian considerations.
2. that when an application for special consider
ation has been made under subsection 115(2), the
officials of the Immigration Department are under
a duty to accept that application and forward it to
the proper authorities and that the applicant is
entitled to a decision on his application. I do not,
however, read that decision as requiring an
adjudicator, when he is in receipt of a subsection
115(2) application during the course of an inquiry,
to immediately adjourn the inquiry until such time
as the Governor in Council has made a decision on
that application. The scheme of the Immigration
Act, 1976 and Regulations [Immigration Regula
tions, 1978, SOR/78-172] makes it clear, in my
view, that the adjudicator is required to proceed
with the inquiry as expeditiously as is possible
under the circumstances of each individual case.
Likewise his power to adjourn an inquiry is
restricted to adjournments "for the purpose of
ensuring a full and proper inquiry" (see subsection
35(1) [of the Regulations]). The issues to be deter
mined at the inquiry by this Adjudicator were
whether this applicant was a member of the inad
missible classes as described in paragraphs
27(2)(b) and (e) of the Immigration Act, 1976.
The compassionate or humanitarian considerations
which are relevant to a subsection 115(2) applica
tion were completely outside the scope of the
inquiry being conducted by this Adjudicator.
In view of the scheme of the Act and Regula
tions as summarized supra, I would not be pre
pared to impose a duty to adjourn upon the
Adjudicator in these circumstances, in the absence
of express words in the statute imposing such a
requirement upon him. It is noteworthy to observe
that when Parliament wished to impose such a
mandatory duty to adjourn upon an adjudicator in
the process of conducting an inquiry, it had no
difficulty in choosing apt words to impose that
duty. I refer to subsection 45 (1) of the Act where
it is provided that the adjucator shall adjourn an
inquiry upon receipt of an application for Conven-
tion-refugee status from the subject of the inquiry.
It would take words of similar import in the
statute to persuade me that an adjudicator is
under a similar duty in respect of subsection
115(2) application.
However, as noted supra, at the hearing before
us, counsel for the applicant relied, as well, on the
recent decision of this Court in the Tam case. It is
my opinion that the factual situation in Tam is
distinguishable from the present case. In Tam the
Adjudicator had adjourned the inquiry for the
purpose of enabling the applicant to apply to the
Minister for a permit pursuant to section 37. In
response to this application, the Minister gave to
the applicant an undertaking to write him after he
had received a report from his officials on the
merits of the application. Before he had received
the promised reply from the Minister or from
someone in the Department authorized by the
Minister to give a reply, the inquiry was proceeded
with. Chief Justice Thurlow, with whom Primrose
D.J. concurred, held that it was procedurally
unfair to force the inquiry to a conclusion while
the applicant still awaited the reply which the
Minister had promised. 4 The facts in Tam were
somewhat unusual and, in my view, the Court's
decision was based on those unusual facts. In the
case at bar, there was no adjournment in the first
instance so an application could be made, nor was
there an undertaking by anyone in authority to
give a reply to the applicant in respect of the
application. On the facts of this case, if the appli
cant's position were to prevail, the result would be
that in every inquiry under the Immigration Act,
1976, the proceedings could be stopped for a con
siderable length of time pending a decision by the
Governor in Council, by the simple expedient of
making a subsection 115(2) application during the
course of the inquiry. In my view, such a result
would disrupt and paralyze the conduct of in
quiries under the Act. This is an additional reason
for my earlier conclusion that I would not be
prepared to so decide in the absence of express
statutory provisions to that effect.
For these reasons, I would dismiss the section 28
application.
LALANDE D.J.: I agree.
MCQuAID D.J.: I agree.
^ As the other member of the Court, I wrote reasons concur
ring in the result but on a different basis; i.e., that the applicant
had been denied natural justice and procedural fairness because
of the Adjudicator's failure to allow counsel for the applicant a
reasonable opportunity to make submissions which he desired
to make in the course of the inquiry.
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.