T-1093-86
Robert Leslie Mensinger (Applicant)
v.
Minister of Employment and Immigration and
Division Chief of Adjudications (Respondents)
INDEXED AS: MENSINGER V. CANADA (MINISTER OF EMPLOY
MENT AND IMMIGRATION)
Trial Division, Rouleau J.—Toronto, July 25;
Ottawa, August 6, 1986.
Immigration — Deportation — Whether person subject of
removal order may compel Minister to allow him to select
country of choice — Removal order to country where arrest
warrants outstanding not disguised extradition — Execution
of removal order may not be stayed pending s. 28 application
— Procedural obligations resulting from principle of fairness
— Not incumbent on Minister to give reasons for removal
order — Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 23,
27(2)(g), 51, 54(1),(2) (as am. by S.C. 1984, c. 40, s. 36), 104(6)
— Canadian Charter of Rights and Freedoms, being Part I of
the Constitution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.), s. 7 — Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, ss. 18, 28.
Judicial review — Prerogative writs — Duty of fairness —
Certiorari, mandamus and prohibition sought in relation to
Minister's order directing removal of applicant to country
where arrest warrants outstanding, instead of to country
chosen by latter and of which citizen — Mandamus denied as
duty performed and writ not available to compel exercise of
discretion in certain way — Prohibition unavailable to stay
execution of removal order as ss. 18 and 28 applications not
included in Immigration Act s. 51 cases where execution
stayed — Applicant failing to discharge onus of proving
removal order disguised extradition — Extent and form of
procedure necessary to comply with principles of fairness
Whether duty of fairness requiring Minister to provide reasons
for decision — Immigration Act, 1976, S.C. 1976-77, c. 52, ss.
23, 27(2)(g), 51, 54(1),(2) (as am. by S.C. 1984, c. 40, s. 36),
104(6) — Canadian Charter of Rights and Freedoms, being
Part I of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.), s. 7.
The applicant, a citizen of both the United States of Ameri-
ca, where he resided most of his life, and Great Britain, entered
Canada from the United States in April 1986. He was arrested
shortly after entry when it was discovered that there were
outstanding warrants for his arrest in the United States.
After an inquiry pursuant to section 23 of the Immigration
Act, 1976 and a hearing, the applicant was ordered deported on
the basis that he was a person described in paragraph 27(2)(g)
of the Act in that he had come into Canada by misrepresenting
a material fact.
The applicant wanted to go to Britain. He had a plane ticket
to Britain and a British passport. Furthermore, he felt that his
life was in danger if he returned to the United States where he
was allegedly being pursued for outstanding debts. The immi
gration official in charge nevertheless ordered him removed to
the United States. That official gave the following reasons for
his decision in an affidavit: 1) that was the country from which
the applicant came to Canada; 2) that was the country in which
the applicant last resided before coming here; 3) the applicant
was also a citizen of the United States, and 4) it was more
expedient and less costly to remove the applicant to the United
States.
This is a section 18 application for certiorari to quash that
decision; for mandamus directing the Minister to provide the
applicant with an opportunity to make submissions prior to the
Minister exercising his discretion pursuant to section 54 of the
Act and to provide the applicant with procedural fairness by
giving the reasons for the exercise of such discretion; for
mandamus directing the respondents to permit the applicant to
leave Canada voluntarily, for departure to Great Britain pursu
ant to section 54 of the Act, and for a writ of prohibition
preventing the applicant's removal pending any further legal
proceedings.
Held, the application should be dismissed.
As to mandamus, pursuant to section 54, the only obligation
imposed on the Minister is to make a decision as to whether or
not the applicant should be allowed to voluntarily leave Canada
and to depart for Britain, the country of his choice. The
Minister discharged that duty in deciding that the applicant
should be removed to the United States. Mandamus lies to
compel the performance of a public duty but it cannot be used
to order an official to exercise a statutory discretion in a certain
way.
The request for a writ of prohibition cannot be granted.
Section 51 of the Act specifies the cases in which the execution
of a removal order is stayed. Neither a section 18 nor a section
28 application is included among those cases.
On the facts, the applicant has failed to discharge the onus of
proving that the decision to remove him to the United States
was tantamount to a form of disguised extradition proceedings.
There is a common law duty of fairness even in cases, such as
the present one, where a highly discretionary function is exer
cised. The real issue is to define the content of the duty of
fairness as it applies to the specific situation. The basic objec
tive of the doctrine of fairness is to ensure that the interested
individual is entitled to have the degree of participation neces
sary to set out relevant facts or arguments. But the procedure
necessary to achieve this goal must be compatible with the
ability of the public authority to discharge its statutory obliga-
tions in an efficient and effective manner. In this case, the
decision was made in accordance with the principles of fairness.
The applicant was not unjustly deprived of a right nor was he
otherwise treated unfairly by the failure of the Minister to
provide reasons for his decision. There was no duty incumbent
on the Minister in this case to provide reasons for his decision.
To require reasons to be given would interfere with the exercise
of the discretionary power and the efficient carrying out of
statutory duties. Furthermore, since there is no statutory right
of appeal against a section 54 decision, the lack of reasons will
not prejudice the possibility of a fair and full redetermination,
as there is no entitlement to one.
CASES JUDICIALLY CONSIDERED
APPLIED:
Karavos v. The City of Toronto and Gillies, [1948]
O.W.N. 17 (C.A.); Kindler v. Macdonald, [1985] 1 F.C.
676 (T.D.); Nicholson v. Haldimand-Norfolk Regional
Board of Commissioners of Police, [1979] 1 S.C.R. 311;
Martineau v. Matsqui Institution Disciplinary Board,
[1980] 1 S.C.R. 602.
COUNSEL:
Cecil L. Rotenberg, Q.C., for applicant.
G. Sparrow for respondents.
SOLICITORS:
Cecil L. Rotenberg, Q.C., Toronto, for
applicant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for order ren
dered in English by
ROULEAU J.: This motion by the applicant is
made pursuant to section 18 of the Federal Court
Act [R.S.C. 1970 (2nd Supp.), c. 10] for an order
in the nature of certiorari quashing the adminis
trative decision of the Minister of Employment
and Immigration and his delegate, directing the
deportation of the applicant to the United States
of America; an order for mandamus directing the
Minister to provide the applicant with an opportu
nity to make submissions prior to the Minister
exercising his discretion pursuant to subsections
54(1) and (2) [as am. by S.C. 1984, c. 40, s. 36] of
the Immigration Act, 1976, S.C. 1976-77, c. 52 as
amended and to provide the applicant with proce
dural fairness by granting the reasons for the,
exercise of such discretion; an order for mandamus
directing the respondents to permit the applicant
to leave Canada voluntarily, for departure to
Great Britain pursuant to subsection 54(1) of the
Immigration Act, and a writ of prohibition pre
venting the respondents from removing the appli
cant from Canada pending any further legal
proceedings.
The applicant, a citizen of both the United
States and Great Britain, entered Canada from the
United States at Fort Frances, Ontario on April
10, 1986. Although he was allowed entry into
Canada as a documented visitor for a twenty-four
hour period, he was arrested by the Fort Frances
police shortly after entry when they discovered
that the applicant had outstanding warrants for his
arrest in the United States. The applicant had
failed to appear for sentencing in Pecos, Texas
after having been released on a $50,000 bond
subsequent to having been found guilty for an
offence involving possession of a restricted sub
stance (marijuana) for the purpose of distribution.
A second warrant for the applicant's arrest was
issued on April 3, 1986 in Berin County, Michigan
after he failed to appear for trial.
At the time the applicant sought entry into
Canada he was asked by immigration officials
whether there existed any outstanding warrants
against him. He responded in the negative. Canada
immigration officials became aware of outstanding
warrants for the applicant's arrest in the United
States by means of a computer check conducted by
the Fort Frances police at the request of Canada
Customs. The applicant was arrested for inquiry
pursuant to the provisions of the Immigration Act.
Subsequent to his arrest, the applicant retained
counsel, Mr. Theo Wolder, who had a conversation
with Mr. Raymond Caldwell, the Manager of the
Canada Immigration Centre of Fort Frances on
April 11, 1986 during which Mr. Caldwell indicat
ed that he might release the applicant within
forty-eight hours of his detention if the applicant
was able to prove that he had the means to travel
to Britain and the capacity to enter the country
legally. The applicant subsequently obtained his
plane ticket to England through his solicitor on the
weekend of April 12 and 13, 1986 with money sent
by his mother who resided in the United States
and his British passport was issued by the British
consulate on May 2, 1986.
On May 7, 1986 an inquiry was held pursuant
to section 23 of the Immigration Act and after a
hearing which was approximately four hours in
duration the applicant was ordered deported on the
basis that he was a person described in paragraph
27(2)(g) of the Immigration Act in that he had
come into Canada by reason of the misrepresenta
tion of a material fact. The applicant has remained
in custody since April 10, 1986, the date of his
arrest by the Fort Frances police.
At all material times, Mr. Philip Pirie was
Acting Director General of Immigration Opera
tion for Ontario Region of Employment and Immi
gration and as such had been delegated the author
ity under section 54 of the Immigration Act to
either allow the applicant to voluntarily leave
Canada and to select the country for which he
would depart or to direct to which country the
applicant would be removed. On May 16, 1986
Mr. Pirie was briefed on the details of the appli
cant's case by his officials. He was advised that the
applicant was a British citizen, that he was in
possession of a plane ticket to Britain and a British
passport and that the applicant did not want to
return to the United States as he felt his life was in
danger in that he was being pursued by a group of
Mexicans in connection with outstanding debts.
The applicant maintained that he had received
four of five threats on his life prior to seeking entry
into Canada. On the basis of the information
provided to him by his officials, Mr. Pirie decided
that the applicant should not be allowed to leave
the country voluntarily to go to Britain but rather
should be removed to the United States.
On May 23, 1986 Mr. Pirie received a further,
more thorough briefing of the applicant's case
from his officials, and on the same date swore an
affidavit wherein he listed the following reasons
underlying his decision to remove the applicant to
the United States rather than allowing voluntary
departure to Britain:
(a) the country from which the applicant came to Canada was
the United States;
(b) the country in which he last resided before he came to
Canada was the United States. The applicant was clearly in the
United States in 1985 and 1986 prior to his arrival in Canada
and had resided during that time in more than one State. The
applicant was born in Britain and had resided there for approx
imately the first year of his life after which his family moved to
the United States. The applicant once again lived in Britain
during part of 1983 and 1984 which confirmed that almost all
his life had been spent in the United States;
(c) the applicant was a citizen of the United States as well as
England; and
(d) it was more expedient and less costly to remove the
applicant to the United States. If the applicant was allowed to
voluntarily leave Canada to go to Britain, arrangements would
have to be made with the airline concerned which, in these
circumstances would most likely have required that the appli
cant be accompanied by an immigration official.
It is the applicant's position that he should be
allowed to leave Canada voluntarily and to select
the country for which he wishes to depart. The
applicant argues that the Minister's direction that
he be removed to the United States is not justified
and is not in keeping with the purpose of the
Immigration Act and would only be so if the
applicant's choice of country was one which would
create difficulties in removal or the country was
not willing to accept him or substantial costs
would be incurred in removing the applicant to the
country of his choice.
The applicant maintains that certain representa
tives of the respondents have suggested that the
applicant should not be allowed to depart for
Britain and thereby avoid due process of law in the
United States nor should he be permitted to make
Canada or the Immigration authorities a means to
escape justice. Those considerations, in the appli
cant's opinion, are entirely irrelevant and the
deportation of an individual to meet uncompleted
criminal proceedings is not one of the reasons
which should compel the Minister to act.
With regards to Mr. Pirie's consideration of
costs in making his decision, applicant's counsel
argues that the cost of the applicant's detention
and of the proceedings so far involved far exceed
the costs which would have resulted from allowing
the applicant to voluntarily depart from Canada to
Britain. Further, the suggestion by Mr. Pirie that
there was a more substantial connection between
the applicant and the United States than between
the applicant and Britain does not, in the appli-
cant's opinion, constitute a logical reason for, and
is irrelevant to, the decision to remove the appli
cant to the United States.
The applicant submits that the decision of the
respondent amounts to a disguised form of extradi
tion; that is, the applicant argues, the only conclu
sion one can reach upon examining the facts in
that there were simply no logical or rational rea
sons for removing the applicant to the United
States as compared to allowing him to voluntarily
leave for Britain.
Finally, the applicant maintains that the deci
sion made by the respondents is an administrative
decision and accordingly attracts the duty of pro
cedural fairness, both in terms of the requirement
to provide an opportunity to be heard in the form
of making submissions and the duty incumbent on
the Minister to provide reasons for making his
decision. Alternatively, the applicant submits that
the Minister's decision and subsequent direction to
remove the applicant to the United States contra
venes the rights guaranteed under section 7 of the
Canadian Charter of Rights and Freedoms [being
Part I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.)] in that it
constitutes a denial of the principles of fundamen
tal justice.
It' is the respondents' position that the decision
of the Minister's delegate, that the applicant be
deported to the United States was made fairly and
within the bounds of his jurisdiction. The decision
was made in accordance with the principles of
fairness in that representations were made orally
by both the applicant and his counsel upon several
occasions prior to the decision being made. The
testimony of Mr. Pixie, the respondents argue,
clearly indicates that he was well aware of the
applicant's position before the decision was made.
In addition, representations were made in writing
by counsel for the applicant. The decision of the
Minister's delegate was made within the bounds of
his discretion with consideration given only to
relevant factors. The respondents maintain that
there is no evidence to support the applicant's
allegation that Mr. Pixie's decision was made par
tially or totally in response to requests from
United States immigration or police authorities.
Further, the respondents submit that mandamus
will not lie to compel the delegate of the Minister
to permit the applicant to voluntarily leave
Canada and depart to the country of his choice.
The Minister has no such statutory duty; the only
duty imposed upon him by the legislation is to
make a decision as required by section 54 of the
Immigration Act and as that duty has been per
formed, mandamus cannot issue.
The final argument of the respondents is that
prohibition will not lie to prevent the respondents
from removing the applicant from Canada pending
the outcome of further proceedings in the matter.
The Minister is under a statutory duty to obey and
carry out a valid deportation order. The execution
of a removal order, argues the respondents, may
only be stayed in the situations enumerated in
section 51 of the Immigration Act. By implication,
the section excludes any other stays, including a
stay pending a section 28 application before the
Federal Court of Appeal.
To begin with, I intend to dispose of the appli
cant's request for an order in the nature of man-
damus compelling the respondents to permit the
applicant to voluntarily leave Canada and depart
to Great Britain or in the alternative compelling
the respondents to remove the applicant to Britain.
Mandamus, one of the more common prerogative
writs, is used to compel the performance of a
statutory duty. There are four requirements for the
issue of a writ of mandamus: there must be a legal
right to performance of the duty by the statutory
authority; there must be proof that performance of
the duty is due because the court will not enforce a
future obligation; the function must be ministerial,
that is, there must be no discretion in the decision-
maker to perform the duty and there must be a
prior demand that the duty be performed and a
refusal to do so. Karavos v. The City of Toronto
and Gillies, [1948] O.W.N. 17 (C.A.).
Section 54 of the Immigration Act provides as
follows:
54. (1) Unless otherwise directed by the Minister, a person
against whom a removal order is made may be allowed to leave
Canada voluntarily and to select the country for which he
wishes to depart.
(2) Where a person is not allowed to leave Canada voluntari
ly and to select the country for which he wishes to depart
pursuant to subsection (1), he shall, subject to subsection (3),
be removed from Canada to
(a) the country from which he came to Canada;
(b) the country in which he last permanently resided before
he came to Canada;
(c) the country of which he is a national or citizen; or
(d) the country of his birth.
I am satisfied that, pursuant to these legislative
provisions, the only obligation imposed on the
Minister is to make a decision as to whether or not
the applicant should be allowed to voluntarily
leave Canada and to depart for Britain, the coun
try of his choice. The Minister performed that
duty; he decided that the applicant should not be
allowed to do so, but should be removed to the
United States. The applicant may take exception
to the manner in which the decision was made and
disagree with how the Minister's discretion was
exercised but there is no question that a decision
was made. Mandamus lies to compel the perform
ance of a public duty but it cannot be used to order
an official to exercise the discretion afforded to
him by statute in a certain way. The remedy is
commonly used in immigration matters to order an
official to exercise a jurisdiction he has declined.
However, there is no evidence in the present case
that the Minister refused to perform his public
duty, in fact, the evidence is to the contrary.
Accordingly, the applicant's request for an order
in the nature of mandamus compelling the Minis
ter to allow the applicant to voluntarily leave for
Britain or compelling the Minister to remove the
applicant to Britain instead of the United States is
refused.
The applicant asks for a writ of prohibition to
issue prohibiting the respondents from proceeding
with the removal of the applicant to the United
States pending a possible section 28 application
before the Federal Court of Appeal. As argued by
counsel for the respondents, section 51 of the
Immigration Act specifies the cases in which the
execution of a removal order is stayed. Removal
must be stayed pending appeals from the Immigra
tion Appeal Board in the Federal Court of Appeal,
and appeals from the Federal Court of Appeal to
the Supreme Court of Canada. There is no stay of
removal guaranteed either in law or by operation
of the Immigration Act, where there is a section 18
application before the Federal Court Trial Divi
sion or where a section 28 application is pending
before the Federal Court of Appeal. For these
reasons the applicant's request for a writ of prohi
bition is refused.
This leaves for determination the issue of dis
guised extradition and the issue of whether the
threshold requirements of procedural fairness have
been met by the respondents in rendering the
decision in question.
As previously stated, applicant's counsel main
tains that the decision to remove the applicant to
the United States is in fact, tantamount to a form
of disguised extradition proceedings. In Kindler v.
Macdonald, [1985] 1 F.C. 676 (T.D.), I examined
this issue in some depth. On pages 684-685, I
stated:
In theory, there should be no confusion between extradition
and deportation. They are clearly distinct in purpose. As was
noted by G. V. La Forest (now Mr. Justice La Forest of the
Supreme Court of Canada) in Extradition To and From
Canada, 2nd ed., Toronto, Canada Law Book Limited, 1977, at
page 38:
The object of extradition is to return a fugitive offender to
the country which has requested him for trial or punishment
for an offence committed within its jurisdiciton. Deportation,
on the other hand, is governed by the public policy of the
state that wishes to dispose of an undesirable alien. In this
respect the deporting state has little preference where the
deportee goes as long as he is outside its own territorial
boundaries. The Immigration Act [subsection 33(1)], how
ever, provides that a person against whom a deportation
order has been issued shall be deported to the place from
which he came to Canada or to the country of which he is a
national or citizen or to the country of his birth, or to such
country as may be approved by the Minister.
Where the destination selected is one in which the authorities
ar&anxious to prosecute or punish the deportee for a criminal
offence, the deportation may result in a de facto extradition.
However, where deportation is ordered to the State of embar
kation or the national State, the description "disguised extradi
tion" is really a conclusion drawn by those who assert it as
being the intent of the deporting authorities. While the motive
of restoring a criminal to a competent jurisdiction may indeed
be paramount in the intention of the deporting State, it may
also in many cases be a genuine coincidence that deportation
has this result. (See Ivan A. Shearer, Extradition in Interna
tional Law, Manchester 1971, Manchester University Press.)
[Emphasis added.]
The onus of proving that deportation proceed
ings generally, or, as in this case, that the exercise
of the Minister's discretion pursuant to section 54
of the Act culminating in the decision to remove
the applicant to the United States, are in fact
disguised extradition proceedings rests with the
party who alleges it. The onus is a heavy one which
in most cases will be difficult to discharge. In this
case, the applicant relies on a number of facts
from which, it is argued, the inference can be
drawn that the direction made by the Minister
amounted to a disguised form of extradition. I
have carefully considered the arguments put for
ward by the applicant's counsel during the course
of the proceedings before me and as set out in
paragraph 18 of the applicant's memorandum of
fact and law. In conjunction, I have considered the
reasons as set out by Mr. Pirie, the Minister's
delegate, in his affidavit of May 23, 1986 for
making the decision which he did. Having weighed
all these factors, I am satisfied that the proceed
ings taken under the Immigration Act are valid on
their face and the evidence is not sufficient to
discharge the onus on the applicant when he chal
lenges these proceedings as a sham aimed at
achieving an unlawful purpose. There were reason
able grounds for the Fort Frances police to arrest
the applicant when they discovered that he had
obtained entry into the country by misrepresenting
a material fact contrary to the provisions of the
Immigration Act. The computer check conducted
by them at the request of Canada Customs and
which led to the discovery of the outstanding
warrants was undertaken at the initiative of
Canadian officials; United States authorities were
not involved at this stage in any manner. There is
no evidence that the Minister's decision was in
some way influenced by or based upon some form
of agreement between Canadian and United States
officials, wherein it was agreed that the applicant
should be returned to the United States in order to
face the charges against him. The only communi
cations between any official of the Canada Immi
gration Service and United States police authori
ties were in the form of one telephone conversation
and one telex, both for the purpose of verifying the
applicant's outstanding charges. The applicant's
allegation that these two communications are
indicative of some prearranged plan or agreement
between Canada and United States officials for
the return of the applicant to the United States is,
in my opinion, far-fetched. Far more meaning is
being extracted from these communications by the
applicant than a reasonable interpretation will
allow them to bear. I am satisfied that the evi
dence clearly establishes that no arrangements
were ever made with United States police officials
for the return of the applicant to the United States
and no request was ever made by the United
States police or immigration authorities for the
return of the applicant.
In addition to the attack on the direction of the
respondents to remove the applicant to the United
States as being a disguised form of extradition
proceedings, the applicant also challenges the
direction on the grounds that the Minister or his
delegate failed to act fairly, in that he did not give
the applicant an opportunity to make written or
oral representations before the decision was made
and further failed to observe the principles of
natural justice by not giving reasons for the said
decision.
Since the decision of the Supreme Court of
Canada in Nicholson v. Haldimand-Norfolk
Regional Board of Commissioners of Police,
[1979] 1 S.C.R. 311, the law has recognized that a
common law duty of fairness is applicable notwith
standing that a decision-maker is exercising a
highly discretionary function. Accordingly, in per
forming an administrative function of the type in
the present case, there is owed to the applicant by
the Minister or his delegate a general duty of
fairness. The problem facing the court in cases of
this nature is to define the content of the duty of
fairness as it applies to the specific situation. The
real issue becomes one of tailoring the procedural
requirements to the nature of the power being
exercised. This requires a consideration of certain
factors, such as the importance of the interests
that may be adversely affected by the administra
tive decision, the impact of the decision upon the
interests affected, the differing degrees to which
the decision may depend upon individual facts and
the interpretation and application of statutory
standards or upon broader considerations of public
interest and the statutory and administrative con
text of a particular situation. See J. M. Evans,
"Remedies in Administrative Law", Special Lec
tures of the Law Society of Upper Canada—New
Developments in the Law of Remedies (Toronto,
1981), 429, at page 434.
The main consequence of the Nicholson case
(supra) and subsequent judicial developments has
been to focus the court's attention less on the
threshold issue of whether any procedural require
ments are to be imposed upon a public authority in
the exercise of its powers and more upon the
specific procedures appropriate to the individual
dispute in question. This provides the court with a
broad power of supervision and ability to tailor
procedures to a greater extent than previously
existed. In determining whether the applicant in
this case has been treated fairly it is necessary to
bear in mind the basic objective of the doctrine of
fairness. That basic objective is to ensure that
individuals are entitled to the degree of participa
tion necessary to bring to the attention of the
decision-maker any fact or argument of which a
fair-minded official or authority would need to be
informed in order to reach a rational decision.
Balanced against this however, is the realization
that the extent and form of the procedure neces
sary to achieve this goal must be compatible with
the ability of the public authority to discharge its
statutory obligations in an efficient and effective
manner. It is this consideration which has con
tributed to the court's reluctance to be unduly
involved in devising the procedures to be followed
by administrative authorities. That is a function
which properly rests with the authority itself. In
exercising a supervisory jurisdiction, it is the
court's function to ensure that minimum standards
of procedural decency are observed and a reluc
tance to interfere should prevail unless there is
sufficient evidence to satisfy the court that the
administrative authority's decision was unreason
able and caused a serious injustice to the
applicant.
Applying the law as stated above to the facts of
the case before me, I am satisfied that the decision
of the Minister to remove the applicant to the
United States was made in accordance with the
principles of fairness. The evidence supports a
finding that at the time Mr. Pirie made the deci
sion to remove the applicant to the United States,
he had before him all the facts and the arguments
of which he needed to be informed in order to
reach a rational decision. The applicant's reasons
for wishing to go to Britain were known by the
Canada Immigration officials who briefed Mr.
Pixie at the meeting of May 16, 1986. The appli
cant and his counsel, Mr. Theo Wolder, made
these submissions at the applicant's inquiry of
May 7, 1986 and at the subsequent detention
reviews held pursuant to subsection 104(6) of the
Immigration Act. Mr. Pirie was aware that the
applicant was in possession of a British passport,
that he had obtained a plane ticket to Britain and
of the applicant's allegations that his life would be
in danger should he be returned to the United
States. In addition to these facts however, it was
also known by Mr. Pirie that the applicant had
resided in the United States for virtually his entire
life, that the applicant was a citizen of the United
States as well as Britain, that he had entered
Canada from the United States and that there
were outstanding warrants for his arrest in the
United States. Mr. Pirie was also aware that
should he decide to remove the applicant to Britain
it was most likely that a Canadian Immigration
official would be required to escort him on the
plane. I am satisfied that Mr. Pixie had a thorough
knowledge of all the pertinent facts and, that being
so, there are no grounds to justify the Court's
interference. The facts before me support a finding
that there was sufficient evidence upon which the
respondents could reasonably have come to the
conclusion and make the decision they did.
The remaining question is whether the applicant
was unjustly deprived of a right or was otherwise
treated unfairly by the failure of the Minister to
provide reasons for his decision.
Generally speaking, there is no general rule of
law that reasons must be given for administrative
decisions and in particular, there is no duty incum
bent on the Minister in this case to provide reasons
for his decision. It is the facts, the circumstances
and the nature of the decision being made which
will determine whether a decision-maker is
required to give reasons in order to comply with
the principles of fairness. After reviewing the facts
and circumstances that are before me, it is my
opinion that the failure on the part of the Minister
to provide reasons for his decision to remove the
applicant to the United States does not amount to
unfair treatment. To require reasons to be given in
administrative cases of this nature would impede
the respondents' ability to exercise their discretion
and carry out their statutory duties in an efficient
and effective manner. The Immigration Act does
not provide for a statutory right of appeal against
a decision made pursuant to section 54 of the Act
and therefore the lack of reasons by the Minister
will not in any way prejudice the possibility of
applicant having a fair and full redetermination as
he is not entitled to one in any event.
As stated by Mr. Justice Dickson (as he then
was) in Martineau v. Matsqui Institution Disci
plinary Board, [1980] 1 S.C.R. 602, at page 631:
8. In the final analysis, the simple question to be answered is
this: Did the tribunal on the facts of the particular case act
fairly toward the person claiming to be aggrieved?
My answer to that question based on the facts of
this case is that there was no violation of the duty
of fairness nor has there been a violation of any
guaranteed right under the Charter.
For these reasons the applicant's motion is dis
missed with costs.
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