A-1043-83
Minister of Employment and Immigration and
Adjudicator R. G. Smith (Appellants) (Respond-
ents)
v.
Hae Soo Han (Respondent) (Applicant)
Court of Appeal, Heald, Mahoney and Marceau
JJ.—Vancouver, February 13; Ottawa, February
22, 1984.
Immigration — Appeal from certiorari quashing refusal of
adjournment by Adjudicator — After commencement of
inquiry respondent meeting requirements of s. 5(1) of Citizen
ship Act and entitled as of right to citizenship — Respondent
seeking adjournment pending processing of citizenship
application — Adjournment refused — Trial Judge quashing
refusal on ground decision concerning adjournments discre
tionary and discretion to be exercised fairly, in accordance
with principles of natural justice — Trial Judge finding
refusal unfair because resulting in deportation order thus
prejudicing respondent's right to citizenship — Appeal
allowed S. 35(1) Immigration Regulations, 1978 permitting
Adjudicator to adjourn inquiry at any time for purpose of
ensuring full and proper inquiry — Whether respondent meet
ing citizenship requirements outside scope of inquiry under
Immigration Act, /976 — Purpose of adjournment not to
better conduct inquiry but to ensure inquiry never held —
Adjudicator not having power to grant adjournment — Legal
notion of fairness and natural justice pertaining to procedural
requirements, not to substance of decision — Trial Judge
perceiving unfairness in decision itself, not in method of reach
ing decision Ramawad v. Minister of Manpower and Immi
gration distinguishable because there rights affected: (1) exist
ing before commencement of inquiry, not during it; and (2)
arising under scheme of Immigration Act whereas right to
citizenship arising under Citizenship Act Respondent
having recourse to Immigration Appeal Board under ss. 72 and
76 Immigration Act, 1976 Immigration Act, /976, S.C.
1976-77, c. 52, ss. 24(1), 27(1)(b),(4), 32(2), 45(1), 47(3),
72(/)(b), 76 — Immigration Regulations, /978, SOR/78-/72,
s. 35(1) — Citizenship Act, S.C. 1974-75-76, c. 108, s. 5(1).
Judicial review Prerogative writs — Certiorari — Duty
of fairness — Appeal from order for certiorari quashing
Adjudicator's decision not to adjourn immigration inquiry
pending processing of citizenship application — Trial Judge
reasoning decision concerning adjournments discretionary and
discretion to be exercised fairly, in accordance with principles
of natural justice — Trial Judge finding unfairness because
decision likely to result in deportation order thus prejudicing
citizenship application — Appeal allowed — Fairness, natural
justice pertaining to procedural requirements not to substance
of decision.
An appeal was taken from an order for certiorari quashing
the refusal of an adjournment by an Adjudicator. The respond
ent was admitted to Canada as a permanent resident June 1,
1980 conditional upon his marrying within 90 days. The mar
riage did not take place. The respondent notified the immigra
tion authorities and requested cancellation of the condition.
The request was refused and a report that he was a person
described in paragraph 27(1)(b) of the Immigration Act, 1976
was made. An inquiry began September 22, 1982. By virtue of
subsection 24(1) a person who is landed in Canada on condition
and thereafter stays in Canada remains a permanent resident
notwithstanding his failure to fulfil the condition. His status
terminates only when a deportation order is made. On June 1,
1983, no deportation order having been made, the respondent
met the requirements of subsection 5(1) of the Citizenship Act
and was entitled as of right to a grant of citizenship. When the
inquiry resumed June 7, 1983 the respondent sought an
adjournment so his application for citizenship could be
processed. The adjournment was refused. The Trial Judge
quashed the refusal on the ground that the decision to grant or
deny an adjournment is always a matter of discretion and that
discretion is to be exercised fairly or in accordance with the
principles of natural justice. He concluded that the refusal of
the adjournment was unfair because it would quite likely result
in the making of a deportation order which would prejudice the
respondent's right to become a Canadian citizen.
Held, the appeal should be allowed.
Per Heald J.: The scheme of the Immigration Act, 1976 and
Immigration Regulations, 1978 requires an Adjudicator to
proceed with an inquiry as expeditiously as possible. Subsection
35(1) of the Regulations gives the Adjudicator the power to
adjourn "for the purpose of ensuring a full and proper inquiry."
The question of whether the respondent met the citizenship
requirements was outside the scope of an inquiry under the
Immigration Act, 1976.
Per Mahoney J.: The respondent relied on Ramawad v. The
Minister of Manpower and Immigration. In that case the right
to have the Minister consider an application for a new employ
ment visa was made before proceedings leading to the deporta
tion order were instituted. Here, the respondent's right to apply
for citizenship arose during the course of the inquiry. Tam v.
Minister of Employment and Immigration, relied upon by the
respondent is distinguishable because the question there was
whether, having already adjourned the inquiry for a particular
purpose, the Adjudicator was entitled to resume it before that
purpose had been fulfilled. Subsection 35(1) of the Immigra
tion Regulations, 1978 gives the Adjudicator the power to
adjourn the inquiry at any time for the purpose of ensuring a
full and proper inquiry. The purpose for which the adjournment
was sought here had nothing to do with a better conduct of the
inquiry. The purpose was to ensure that the inquiry could never
be held. The Adjudicator could not grant the request for
adjournment because his power to adjourn did not allow him to
do so and also because the indefinite postponement would have
amounted to a declining of jurisdiction by him. Also, the legal
notion of fairness pertains to procedural requirements as does
the broader notion of natural justice in which it is embedded; it
refers to the manner in which the tribunal has reached its
conclusion, not to the substance of the conclusion itself. The
"taint of unfairness" that the Trial Judge saw was directed to
the decision itself because of its possible prejudicial effects to
the respondent. It had nothing to do with the manner in which
the decision had been reached.
Per Marceau J.: The Ramawad and subsequent decisions are
distinguishable because in those cases the opportunity to either
exercise a right or seek the granting of a privilege, which had
been abrogated by the decision, was one given by the Immigra
tion Act itself, so that the scheme of the Act was directly and
exclusively involved. Here the right, the assertion of which
could be affected, is one given by the Citizenship Act which has
no connection with the immigration scheme. Also, while in
those cases the prejudice caused to the applicant was definitive,
a deportation order having already been made, the effect
apprehended here is only eventual and not without remedy.
Under sections 72 and 76 of the Immigration Act, 1976 the
Immigration Appeal Board is expressly vested with the jurisdic
tion to take all circumstances of a case into consideration and
to decide whether or not the removal order made therein should
be quashed or stayed. The Adjudicator is not empowered to
decide on the equities of a particular case, his role being strictly
to verify the allegations in the report made against the subject
of the inquiry.
CASES JUDICIALLY CONSIDERED
APPLIED:
Green v. Minister of Employment and Immigration,
[1984] 1 F.C. 441; (1983), 49 N.R. 225 (C.A.).
DISTINGUISHED:
Ramawad v. The Minister of Manpower and Immigra
tion, [1978] 2 S.C.R. 375; Tam v. Minister of Employ
ment and Immigration, [1983] 2 F.C. 31; (1982), 46
N.R. I (C.A.).
REFERRED TO:
Louhisdon v. Employment and Immigration Canada,
[1978] 2 F.C. 589 (C.A.); Stalony v. Minister of
Employment and Immigration (1980), 36 N.R. 609
(F.C.A.); Murray v. Minister of Employment and Immi
gration, [1979] I F.C. 518; (1978), 23 N.R. 345 (C.A.);
Oloko v. Canada Employment and Immigration et al.,
[1978] 2 F.C. 593; 24 N.R. 463 (C.A.); Jiminez-Perez et
al. v. Minister of Employment and Immigration et al.,
[1983] I F.C. 163; (1982), 45 N.R. 149 (C.A.); Re
Gasparetto et al. and City of Sault Ste. Marie (1973), 35
D.L.R. (3d) 507 (Ont. H.C.).
COUNSEL:
Mary Humphries for appellants (respond-
ents).
Dennis McCrea for respondent (applicant).
SOLICITORS:
Deputy Attorney General of Canada for
appellants (respondents).
Rosenbloom, McCrea & Aldridge, Vancou-
ver, for respondent (applicant).
The following are the reasons for judgment
rendered in English by
HEALD J.: I have had the advantage of reading
the reasons for judgment prepared in this appeal
by Mr. Justice Mahoney and Mr. Justice Marceau
and agree with them that the Adjudicator correct
ly refused the respondent's request for an adjourn
ment of the inquiry until his application for citi
zenship could be processed and finally determined.
In my view the scheme of the Immigration Act,
1976 [S.C. 1976-77, c. 52] and Regulations
[Immigration Regulations, 1978, SOR/78-172]
requires an Adjudicator conducting an inquiry to
proceed with that inquiry as expeditiously as possi
ble having regard to the particular circumstances
of that case. Immigration Regulation 35(1)
empowers him to grant adjournments "for the
purpose of ensuring a full and proper inquiry."
The question as to whether or not this respondent
had complied with the provisions of the Citizen
ship Act [S.C. 1974-75-76, c. 108] so as to entitle
him to a grant of citizenship thereunder was clear
ly outside the scope of this inquiry under the
Immigration Act, 1976.
This Court's decision in the case of Green v.
Minister of Employment and Immigration' is
relevant to the issues in the instant case. There the
refusal of an adjournment by the Adjudicator
related to the applicant's application to the Gover
nor in Council pursuant to subsection 115(2) of
the Immigration Act, 1976. In that case it was
stated:
The issues to be determined at the inquiry by this Adjudicator
were whether this applicant was a member of the inadmissible
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)
application were completely outside the scope of the inquiry
being conducted by this Adjudicator.
' File A-1140-82, judgment dated August 19, 1983—see
reasons for judgment, page 3 ([1984] 1 F.C. 441, at p. 445;
(1983), 49 N.R. 225 (C.A.), at p. 227).
In view of the scheme of the Act and Regulations as summa
rized supra, I would not be prepared to impose a duty to
adjourn upon the Adjudicator in these circumstances, in the
absence of express words in the statute imposing such a require
ment upon him. It is noteworthy to observe that when Parlia
ment 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
adjudicator shall adjourn an inquiry upon receipt of an applica
tion for Convention-refugee status from the subject of the
inquiry.
In my view, that reasoning applies equally to the
case at bar. Accordingly, since I conclude that the
Adjudicator was right to refuse the adjournment
request in the circumstances of this case, it follows
that the Trial Judge [In re Immigration Act, 1976
and in re Han, judgment dated July 4, 1983,
Federal Court—Trial Division, T-1348-83, not yet
reported] was in error in his view that the refusal
of the request to adjourn was "... an exercise of
discretion tainted with unfairness ...".
Accordingly, I agree with my brothers Mahoney
and Marceau JJ. that the appeal should be allowed
without costs either here or in the Trial Division
and that the order of the Trial Division should be
set aside.
* * *
The following are the reasons for judgment
rendered in English by
MAHONEY J.: This is an appeal from an order
in the nature of certiorari quashing the refusal of
an adjournment by an Adjudicator in the course of
an inquiry under section 27 of the Immigration
Act, 1976. The respondent was admitted to
Canada as a permanent resident June 1, 1980,
conditional upon his marrying within 90 days. The
marriage did not take place. Before the 90 days
had expired, he notified immigration authorities
that he would be unable to meet the condition and
requested its cancellation. That request was even
tually refused and a report that he was a person
described in paragraph 27(1)(b) was made. A
notice of inquiry issued August 17, 1982 and the
inquiry began September 22. By virtue of subsec
tion 24(1), a person who is landed in Canada on
condition and thereafter stays in Canada, remains
a permanent resident notwithstanding his failure
to fulfil the condition. His status terminates only
when a deportation order is made against him.
Thus, on June 1, 1983, no deportation order
having been made, the respondent met the require
ments of at least paragraphs 5(1)(b) and (e) of the
Citizenship Act: he was a person who (1) had been
lawfully admitted to Canada for permanent resi
dence; (2) had not ceased to be a permanent
resident pursuant to section 24 of the Immigration
Act, 1976; (3) had, within the immediately preced
ing four years accumulated at least three years
residence in Canada calculated in the prescribed
manner and (4) was not under a deportation order.
He applied for Canadian citizenship.
Accepting for purposes of this judgment that he
met the other requirements of subsection 5(1), he
was entitled as of right, on June 1, 1983, to a grant
of Canadian citizenship.
5. ( 1 ) The Minister shall grant citizenship to any person who,
not being a citizen, makes application therefor and
The Minister has no discretion but to grant citi
zenship if the applicant meets the prescribed con
ditions. However, some time is necessarily taken in
processing the application. If, before citizenship
were to be granted, a deportation order had been
made, the respondent would no longer meet the
prescribed conditions. When the inquiry resumed
June 7, 1983, the respondent sought an adjourn
ment so his application for citizenship could be
processed and determined. Its refusal is subject of
these proceedings.
In quashing that refusal, the learned Trial Judge
premised that the decision to grant or deny a
request for adjournment is always a matter of
discretion for the tribunal concerned and that the
discretion is to be exercised fairly or in accordance
with the principles of natural justice. He conclud
ed that the refusal of the adjournment was unfair
because it would quite likely result in the making
of a deportation order which would prejudice the
respondent's right to become a Canadian citizen.
The respondent relies on Ramawad v. The Min
ister of Manpower and Immigration, [1978] 2
S.C.R. 375. The case arose under the previous
legislation but that is not a basis for distinction.
The person concerned had been admitted to
Canada as a non-immigrant and given an employ-
ment visa. He had been dismissed without notice
when he asked for a raise. He took another job
without obtaining the authorization of an immi
gration officer as required by a condition of his
visa. As set forth in the judgment at page 377, the
following transpired:
The immigration authorities were apprised of this change in
the "conditions of employment" of the appellant on July 15,
1975, when he applied for an extension of his visa which he
thought to be valid until July 26, 1975. The appellant was then
told that his employment visa had ceased to be valid upon his
starting employment with Charles Jewellers Company without
the authorization of an immigration officer and that he had to
leave the country. The appellant immediately terminated his
employment with Charles Jewellers Company and apparently
applied to the immigration officer for a new employment visa;
he was considered to be seeking entry into Canada under the
deeming provisions of s. 7(3) of the Immigration Act, as a
result of which the appellant was examined by an immigration
officer under s. 22 of the said Act; the officer, being of the
opinion that it would be contrary to the provisions of the Act
and the Regulations to grant the appellant admission to
Canada, reported him to a Special Inquiry Officer.
In deciding to make a deportation order the Spe
cial Inquiry Officer determined that no "special
circumstances" existed that would permit the Min
ister to exercise his discretion to issue a new
employment visa. That was not a determination
the Special Inquiry Officer was authorized to
make. The Court held that the determination was
invalid and then proceeded to consider its effect on
the deportation order which he was, of course,
authorized to make. The Court held, at pages
383-384, that:
Under para. 3G(d), the appellant was entitled to have the
Minister rule as to the "existence of special circumstances";
this was a substantive right of the appellant which flowed to
him directly from the Regulations and which the Special
Inquiry Officer had no authority to abrogate whether directly
or indirectly.
In purporting to exercise the Minister's authority under para.
3G(d) of the Regulations and in proceeding immediately there
after to issue a deportation order against the appellant, the
Special Inquiry Officer effectively denied the appellant his
right to have the Minister decide whether the special circum
stances envisaged in para. 3G(d) existed.
To hold that the invalidity of the decision of the Special
Inquiry Officer as to the existence of special circumstances
under para. 3G(d) has no effect on the validity of the deporta
tion order would lead one to the untenable conclusion that a
Special Inquiry Officer could, through an improper exercise of
the Minister's authority under para. 3G(d), nullify the right of
a non-immigrant under said paragraph by preventing the Min-
ister from exercising the discretion with which he was
entrusted.
In my view, the making of an application seeking the opinion
of the Minister pursuant to para. 3G(d) has the effect of
suspending the authority of the Special Inquiry Officer to issue
a deportation order, and the only possible course of action for
the Special Inquiry Officer under such circumstances is to
adjourn making his decision until such time as the Minister has
disposed of the application.
It is not, in my view, necessary to distinguish
Ramawad by recourse to this Court's decision in
Louhisdon v. Employment and Immigration
Canada, [1978] 2 F.C. 589 (C.A.). A crucial fact
in Ramawad is that the application for the new
employment visa had been made and, thus, the
right to have the Minister consider it had arisen
before proceedings leading to the deportation
order were even instituted. Here, the respondent's
right to apply for citizenship arose during the
course of the inquiry.
Another decision relied on is Tam v. Minister of
Employment and Immigration, [1983] 2 F.C. 31;
(1982), 46 N.R. 1 (C.A.). There, the Adjudicator
had adjourned the inquiry to permit the person
concerned to apply for a Minister's permit under
section 37 of the present Act and the Minister had
acknowledged the application and advised the
person that he had requested a report and would
be writing again when he had it. The Chief Jus
tice, for the majority, held, at page 18 [at page 44
F.C.], that:
In my opinion, having had the inquiry adjourned on May 28,
1982 for the purpose of enabling him to apply to the Minister
and having received the Minister's undertaking to write him
after receiving a report, fairness required that the inquiry not
be pursued until he had been given an answer by the Minister
or by someone in the Department authorized by the Minister to
give it for him.
and concluded, at page 19 [at page 46 F.C.], that:
I am accordingly of the view that the applicant's request for a
permit had not in fact been considered by an official in a
position to decide it and that it was procedurally unfair to force
the inquiry to a conclusion while the applicant still awaited the
reply which the Minister had promised.
The issue there was not, as here, whether the
Adjudicator should have adjourned the inquiry for
the particular purpose in the first place but wheth-
er, having so adjourned it, he was entitled to
resume it before that purpose had been fulfilled.
The Immigration Act, 1976, and Regulations
make specific provision for the adjournment of an
inquiry for certain purposes. The only one conceiv
ably in play is that provided by subsection 35(1) of
the Regulations:
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.
The sole purpose of this inquiry was to ascertain
whether or not the respondent was a person
described by paragraph 27(1)(b). If he were a
Canadian citizen, that would be relevant; that he
might have a right to become one would not.
The Act provides:
32....
(2) Where an adjudicator decides that a person who is the
subject of an inquiry is a permanent resident described in
subsection 27(1), he shall, subject to subsections 45(I) and
47(3), make a deportation order against that person.
Subsections 45(1) and 47(3) are not in play. The
Adjudicator's function is exclusively to find facts.
If he finds the facts adversely to the permanent
resident he has no discretion but to make a depor
tation order. It seems to me that, in characterizing
the Adjudicator's refusal of the adjournment as
unfair in the circumstances, the learned Trial
Judge has attributed to the Adjudicator a discre
tion the legislation has not given him.
I would allow the appeal and set aside the order
of the Trial Division. Costs were not awarded in
the Trial Division nor asked for on appeal.
In conclusion, I should note that, if a deporta
tion order is, in fact made, the respondent is not
without recourse. Discretion is vested in the Immi
gration Appeal Board by subsection 72(1), whose
material provision, in the present circumstances, is:
72. (1) Where a removal order is made against a permanent
resident ... that person may appeal to the Board on either or
both of the following grounds, namely,
(b) on the ground that, having regard to all the circum
stances of the case, the person should not be removed from
Canada.
Parliament has entrusted the Board, not the
Adjudicator and not the courts, to exercise an
"equitable" jurisdiction in all the circumstances.
* * *
The following are the reasons for judgment
rendered in English by
MARCEAU J.: This is an appeal against a judg
ment of the Trial Division which, granting the
respondent's application for relief in the nature of
certiorari, quashed the denial by the Adjudicator
who was presiding over an inquiry held under
subsection 27(4) of the Immigration Act, 1976,
(hereinafter the Act) of a request for an
adjournment.
The factual context is quite simple and straight
forward. The respondent entered Canada on June
1, 1980 as a permanent resident on condition that
he marry his sponsoring fiancée, a Canadian citi
zen, within 90 days of landing. Being unable to
comply with the condition, his fiancée having
changed her mind regarding the marriage, and his
application to have the condition removed having
finally, after close to two years, been denied, a
report that he was a person described in paragraph
27(1)(b) of the Act was made and a notice of
inquiry was prepared. Commenced on August 17,
1982, the inquiry was adjourned several times for
different reasons. When the inquiry resumed on
June 7, 1983, the respondent informed the
Adjudicator that he had just filed an application
for Canadian citizenship to which he was now
entitled and he requested a further adjournment
until his application is processed and determined.
The Adjudicator refused and it is that refusal
which was attacked in the Trial Division and
quashed by the decision appealed from.
The whole reasoning of the learned Trial Judge
is clearly set out in the three following paragraphs
of his reasons:
The decision to grant or deny a request for an adjournment,
whether by a civil or criminal court, a quasi-judicial body, or an
administrative one, is always a matter in the discretion of the
particular tribunal. That does not mean that a supervisory body
cannot, in an appropriate case, intervene. It may do so where
that discretion has not been exercised fairly, or to put it in the
legal phraseology, not in accordance with the principles of
natural justice. The law on this subject has been summarized in
a number of cases.
I appreciate that supervisory intervention, in respect of the
exercise of a discretion by the tribunal attacked, should only
occur, where a denial of natural justice is asserted, in clear
cases. Nor should there be merely a substitution of opinion for
that of the lower tribunal. The court from which relief is sought
should not, as well, be affected by considerations that the
refusal to grant the request was perhaps unwise, or that the
court, if it had been sitting in first instance, might have made a
different ruling.
I have nevertheless, concluded that the refusal to adjourn the
inquiry proceedings, pending the results of the citizenship
application was, in the circumstances, an exercise of discretion
tainted with unfairness; a denial of natural justice. When I use
those words, I use them in the strict legal sense. I am not for a
moment suggesting the adjudicator was, in the layman's par
lance, unfair. The effect of the refusal to adjourn, with the
quite likely result of a deportation order being made, would be
to seriously, and perhaps permanently, prejudice the applicant's
right, if he meets all the requirements of the Citizenship Act, to
become a Canadian citizen.
This reasoning no doubt contains several sound
propositions, but on the whole I must, with respect,
dispute its validity. Its main flaw, as I see it, is in
its opening statement. While it is undeniable that
the decision to grant or deny a request for an
adjournment is one that generally brings into play
the exercise of a certain discretion on the part of
the particular tribunal involved, the suggestion
that it is always a matter of discretion is unaccept
able. There are obviously instances where the tri
bunal has no choice but to grant the request. The
law may impose on it the duty to do so as is the
case, for example, under subsection 45(1) of the
very Act here involved, where it is provided that
the adjudicator shall adjourn an inquiry upon
receipt of an application for Convention-refugee
status; or it may be apparent that a refusal to
adjourn would be contrary to common sense or
likely to cause an irreparable injustice. Similarly,
and for corresponding reasons, there are instances
where the tribunal has no choice but to refuse the
request. The tribunal may have been formally
denied by law the power to delay its proceedings
for any or for some specified reasons or it may be
apparent that the adjournment in the circum
stances of the particular case would result in the
tribunal's declining to fulfil the object of its very
existence. In my respectful opinion, the Trial
Judge was mistaken in taking for granted that the
request for adjournment in the case at bar was a
matter in the discretion of the Adjudicator. It was
not, in my view. Section 35 of the Regulations to
the Immigration Act, 1976 restricts the power of
an adjudicator to adjourn an inquiry to adjourn
ments required "for the purpose of ensuring a full
and proper inquiry". 2 That the purpose for which
the adjournment was sought here had nothing to
do with a better conduct of the inquiry is obvious;
on the contrary, it was to ensure that the inquiry
could never be held. The original premise is wrong.
The Adjudicator could not grant the request for
adjournment because his power to adjourn did not
allow him to do so and also, in any event, because
the indefinite postponement sought would have
amounted to a declining of jurisdiction by him.
I may add, with respect, that I see another flaw
in the reasoning of the learned Trial Judge. It does
not appear to me that the legal notion of fairness
on which the reasoning hinges is taken in its
proper sense. This notion of fairness as developed
and applied by supervisory bodies in reviewing
purely administrative decisions pertains to proce
dural requirements, as does the broader notion of
natural justice in which it is embedded; it refers to
the manner in which the tribunal has reached its
conclusion, not to the substance of the conclusion
itself. The tribunal has, of course, a strict duty to
act in good faith, within the purview of the law
from which it draws its authority and for relevant
motives, its discretion, as it is usually said, must be
exercised "judicially", but the suitability and the
fairness of the decision are matters left to its sole
appreciation. It is apparent from the reasons of the
learned Trial Judge that the "taint of unfairness"
he was seeing was directed to the decision itself
because of its possible prejudicial effects to the
respondent; it had nothing to do with the manner
in which the decision had been reached. It seems
to me therefore that even if the Adjudicator had
been free to grant the request for adjournment in
the circumstances of the case at bar, his refusal to
do so could not be judicially reviewed and set aside
on the sole ground set forth by the Trial Judge.
Thus reads the first paragraph of section 35:
35. (I) The adjudicator presiding at an inquiry may
adjourn the inquiry at any time for the purpose of ensuring a
full and proper inquiry.
Counsel for the respondent sought support for
the decision appealed from in the judgment of the
Supreme Court in the case of Ramawad v. The
Minister of Manpower and Immigration, [1978] 2
S.C.R. 375. In his contention, the Ramawad judg
ment was firm authority for the proposition that
an adjudicator presiding over an immigration
inquiry cannot refuse a request for adjournment
when the effect of such refusal would be to deprive
the applicant of the opportunity to exercise a right,
a proposition that this Court has since respected
and acted upon, as shown by a proper analysis of
cases like Stalony v. Minister of Employment and
Immigration (1980), 36 N.R. 609 (F.C.A.);
Murray v. Minister of Employment and Immigra
tion, [1979] 1 F.C. 518; (1978), 23 N.R. 345
(C.A.); Oloko v. Canada Employment and Immi
gration et al., [1978] 2 F.C. 593; 24 N.R. 463
(C.A.); Jiminez-Perez et al. v. Minister of
Employment and Immigration et al., [1983] 1
F.C. 163; (1982), 45 N.R. 149 (C.A); Re Gas-
paretto et al. and City of Sault Ste. Marie (1973),
35 D.L.R. (3d) 507 (Ont. H.C.). On the basis of
that proposition, says counsel, the Adjudicator was
precluded from denying the request for adjourn
ment in the present case, since the effect of the
refusal was to seriously prejudice, if not definitely
abrogate, the right to become a Canadian citizen
that the applicant had under the Citizenship Act,
S.C. 1974-75-76, c. 108, until a deportation order
was made against him'.
'This is so because subsection 5(I) of the Citizenship Act
reads as follows:
5. (I) The Minister shall grant citizenship to any person
who, not being a citizen, makes application therefor and
(a) is eighteen years of age or over;
(b) has been lawfully admitted to Canada for permanent
residence, and has, within the four years immediately
preceding the date of his application, accumulated at least
three years of residence in Canada calculated in the fol
lowing manner:
(i) for every day during which he was resident in
Canada before his lawful admission to Canada for per
manent residence he shall be deemed to have accumulat
ed one-half of a day of residence, and
(ii) for every day during which he was resident in
Canada after his lawful admission to Canada for perma
nent residence he shall be deemed to have accumulated
one day of residence;
(c) has an adequate knowledge of one of the official
languages of Canada;
(d) has an adequate knowledge of Canada and of the
responsibilities and privileges of citizenship; and
(e) is not under a deportation order and is not the subject
of a declaration by the Governor in Council made pursuant
to section 18.
I will not have to review all of those cases
referred to by counsel where the Ramawad judg
ment had been invoked either to be followed or
distinguished. The reason is that, in my view, the
Ramawad decision and those decisions that later
came under its influence can have no application
here. On the one hand, in all of these cases, the
opportunity to either exercise a right or seek the
granting of a privilege, which had been abrogated
by the decision, was one given by the Immigration
Act itself, so that the scheme of the Act was
directly and exclusively involved. Here, on the
contrary, the right, the assertion of which could be
affected, is one given by the Citizenship Act,
which has no connection whatever with the immi
gration scheme (compare on that point: Green v.
Minister of Employment and Immigration, [ 1984]
1 F.C. 441; (1983), 49 N.R. 225 (C.A.)). On the
other hand, while in all of these cases, the preju
dice caused to the applicant was definitive, a
deportation order having already been made, the
effect apprehended here is only eventual and not
without remedy. The inquiry may still go on for
some time, its result, although very likely to come
out as expected, is not without some uncertainty,
and above all, the applicant will not be left without
remedy. Under sections 72 and 76 of the Immi
gration Act, 1976 the Immigration Appeal Board
is expressly vested with the jurisdiction to take all
circumstances of a case into consideration and to
decide whether or not the removal order made
therein should be quashed or stayed. Indeed, such
is the scheme of the Act: whereas the Adjudicator
is not empowered to decide on the equities of a
particular case, his role being strictly to verify the
allegations in the report made against the subject
of the inquiry, the Immigration Appeal Board is.
The Ramawad judgment is clearly distinguishable
and, in my view, is not relevant.
My conclusion therefore is that the Adjudicator
was right in declining to delay the inquiry for the
purpose set forth by the respondent in his request
for adjournment; he could not even decide other
wise. The appeal must then be granted and the
judgment of the Trial Division must be set aside.
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.