A-33-74
In the matter of the Immigration Act and in the
matter of Malcolm Lee Morrison
Court of Appeal, Jackett C.J., Pratte J. and
Sheppard D.J.—Vancouver, June 11 and 12,
1974.
Judicial review—Immigration—Temporary admission to
Canada as a visitor—Remaining after expiry of period for
visit Application for employment visa—Found to lack
documents and good faith in application —Deportation order
upheld—Immigration Act, R.S.C. 1970, c. I-2 ss. 2, 5-7, 18,
19, 22, 23, 27, 35, 57(c); (amen. S.C. 1973-74, c. 28, s. 1)
and Immigration Regulations 3A, 28—Federal Court Act, s.
28.
Without having Canadian citizenship or domicile and
without having documents under the Immigration Act and
Immigration Regulations, the applicant caused or permitted
the immigration officer at the border to think that he was
entering as a visitor, for business or recreation, and was
allowed entry in April 1973. In August, the applicant visited
an immigration officer with reference to an employment
visa. In October, the applicant was interviewed by another
immigration officer, whose report to a Special Inquiry Offi
cer led to an inquiry and an order for deportation. The
applicant moved to set aside the order, under section 28 of
the Federal Court Act.
Held, dismissing the application, the applicant, having
obtained entry as a visitor under section 7(1Xc) and (h) of
the Immigration Act, allowed the maximum visiting period,
under section 3A of the Regulations, of three months to
elapse before his partial disclosures to an immigration offi
cer in seeking an employment visa. From that time, the
applicant was deemed to be "a person seeking admission to
Canada" within section 7(3), bringing into play sections 22
and 23 and leading to the subsequent order. The Special
Inquiry Officer's finding under section 5(p) that the appli
cant was not a bona fide non-immigrant was supported by
the evidence and involved no error in law. The finding that
the applicant lacked the documentation required by the
section 28 of the Immigration Regulations, was also justi
fied. The officer's conduct of the inquiry afforded no basis
for attack.
Podlaszecka v. Minister of Manpower and Immigration
[1972] S.C.R. 733, distinguished; The King v. Dominion
Bridge Company Limited [1940] S.C.R. 487,
considered.
APPLICATION.
COUNSEL:
Gerald G. Goldstein for applicant.
G. C. Carruthers for respondent.
SOLICITORS:
John R. Taylor & Associates, Vancouver,
for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
delivered orally in English by
JAcKETT C.J.: This is a section 28 application
to set aside a deportation order made against the
applicant by a Special Inquiry Officer under
section 27(3) of the Immigration Act.
The material facts, as they appear from the
evidence placed before the Special Inquiry Offi
cer, are as follows:
1. The applicant came into Canada on April
25, 1973, intending to reside permanently in
Canada.
2. Prior to coming into Canada, the applicant
had received no visa, letter of pre-examina
tion or other document conferring status
under the Immigration Act, but he was
allowed by the Immigration Officer at the
border to come into Canada because he
caused or permitted that officer to think that
he was coming into Canada as a visitor for
business or recreational purposes.
3. On August 16, 1973, after having been in
Canada for more than three months, the appli
cant visited an Immigration Officer, who
became aware that the applicant had come
into Canada as a visitor and had stayed for
more than three months without any grant of
further status under the Immigration Act and
who informed the applicant, in effect, that, if
he would bring in appropriate documentary
evidence of his situation in Canada, consider
ation would be given to granting him an
employment visa, sometimes referred to as a
work permit.
4. The applicant did not return for a further
interview with an Immigration Officer until
October 25, 1973, when he was interviewed
by a second Immigration Officer to whom the
relevant departmental file had been trans-
ferred. As a result of that interview, the
second Immigration Officer made a report,
expressed to be a report under section 22 of
the Immigration Act, which, as amended on
November 7, 1973, reads as follows:
1. Malcolm Lee Morrison entered Canada as a non-
immigrant at Douglas, B.C. on 25 April, 1973, 7(1Xc)
for a period of six months. He has now reported to the
undersigned in accordance with subsection 7(3) of the
Immigration Act and is seeking admission to Canada as
a non-immigrant.
2. Pursuant to Section 22 of the Immigration Act I have
to report that I have interviewed and examined Mal-
colm Lee Morrison and, in my opinion, he is not a
Canadian citizen or a person who has acquired Canadi-
an domicile.
3. I am also of the opinion that it would be contrary to
the Immigration Act and Regulations to grant him
admission to Canada as a non-immigrant because
(a) he is a member of the prohibited class of person
described in paragraph (p) of Section 5 of the Immi
gration Act in that, in my opinion he is not a bona
fide non-immigrant because
(i) he seeks admission to Canada to avoid prosecu
tion on two criminal indictments presently out
standing in the U.S.A., namely:
1. Inter-State transportation of three United
States Treasury bills valued at one hundred thou
sand dollars each.
2. Inter-State transportation of a number of
United States Stock Certificates in excess of five
thousand dollars
knowing both to have been stolen.
5. On November 15, 1973, a Special Inquiry
Officer commenced an inquiry under the pur
ported authority of section 23 of the Immigra
tion Act and that Inquiry proceeded, with
adjournments from time to time, until January
24, 1974, when it terminated with the Special
Inquiry Officer making the deportation order
that is the subject matter of this section 28
application. That deportation order reads as
follows:
... On the basis of the evidence adduced at the Inquiry
held at the Canada Immigration Centre on the 15th
November 1973, 7th, 13th, 14th and 20th December
1973, 3rd, 11th, 16th, 18th and 24th of January 1974, I
have reached the decision that you may not come into
or remain in Canada as of right in that:
(i) you are not a Canadian citizen,
(ii) you are not a person having Canadian domicile,
(iii) you are a member of a prohibited class•of per
sons described in paragraph 5(p) of the Immigration
Act in that in my opinion you are not a bona fide
non-immigrant because you are an immigrant,
(iv) you are a member of a prohibited class of per
sons described in paragraph 5(t) of the Immigration
Act in that you do not comply with the requirements
of the Immigration Regulations Part I by reason of
the fact that you are not in possession of a letter of
pre-examination in the form prescribed by the Minis
ter as required by subsection 28(2) of the Immigra
tion Regulations, Part I.
I HEREBY ORDER THAT YOU BE DETAINED AND BE
DEPORTED.
6. Not only was no visa or other document
conferring status issued to the applicant under
the Immigration Act before he came to
Canada, but no such document was issued to
him after he came to Canada.
On the facts as they were established by the
Inquiry before the Special Inquiry Officer it
would seem, on first view,
(a) that the applicant should not, if he had
divulged the facts to the Immigration Officer
at the border, have been admitted to Canada
in April, 1973, and
(b) that, once he came into Canada, he was
subject to deportation.
The prohibition against the applicant's admis
sion to Canada, if he had told the truth to the
Immigration Officer, is found in section 5(t) of
the Immigration Act, which prohibits admission
to Canada of any person who does not comply
with, inter alia, any of the requirements of the
Regulations, and Regulation 28, 1 which requires
every "immigrant" 2 who seeks to land 3 in
Canada to have a valid and subsisting immigrant
Regulation 28 is made under section 57(c) of the Immi
gration Act.
2 `immigrant" is defined by section 2 of the Act to be a
person who seeks admission to Canada for permanent
residence.
"landing" is defined by section 2 of the Act to mean the
lawful admission of an immigrant to Canada for permanent
residence.
visa or letter of pre-examination. 4 (See Regula
tion 28(1) and (2).) The applicant came into
Canada intending to reside permanently in
Canada. It follows, it would seem, that he
should have been treated when he came into
Canada as a person seeking to "land", and, as
he had at that time no subsisting immigrant visa
or letter of pre-examination, he did not comply
with Regulation 28, and his admission was pro
hibited by section 5(t).
The authority for the applicant's deportation
once he was in Canada is to be found in section
18(1) of the Immigration Act, which imposes a
duty on inter alia an immigration officer who
has knowledge thereof to send a written report
to the Director of the Immigration Branch of the
Department of Manpower and Immigration, or
to a person authorized to act for the Director,
concerning inter alia any person (other than a
Canadian citizen or a person with Canadian
domicile) who
(a) was a member of a prohibited class at the
time of his admission to Canada (paragraph
(e)(iv)),
(b) entered Canada as a non-immigrant and
remains after ceasing to be a non-immigrant
or to be in the particular class in which he
was admitted as a non-immigrant (paragraph
(e)(vi)), or
(c) came into Canada by reason of misleading
information (paragraph (e)(viii)),
and section 18(2), which provides that a person
who is found upon an inquiry duly held by a
Special Inquiry Officer to be such a person is
subject to deportation. 5
* I do not mean to say that a person planning to come to
Canada cannot, while his application for landing is under
consideration, pay a visit to Canada. A visit to attend a
funeral in Canada is an obvious example. Here, however, it
would appear that the applicant planned a permanent move
and made a permanent move. The stories about visits were
for immigration purposes only.
I am not saying that proceedings should have been
commenced under section 18. As far as I know, it may not
have been evident to the Immigration Officers that the
applicant was an "immigrant" until after the Inquiry. It
nowhere appears that the applicant told them that he had
come to Canada for permanent residence.
The only real difficulty that I encounter in
this matter arises from the fact that the steps
leading up to the Inquiry did not purport to have
been taken under section 18, and the fact that
the deportation order was framed as though the
applicant was seeking admission to Canada,
which, in fact, he was not, and was not framed
as though he was a person in Canada and sub
ject to deportation, which, in fact, he was.
What has to be decided, in that connection, is
whether section 7(3) of the Immigration Act is
sufficient authority, on the facts of this matter,
for the proceedings that were taken and the
form of the deportation order, and, if that ques
tion is decided in the negative and section 7(3)
is not sufficient authority, whether the
irregularities of procedure and form invalidate
the deportation order even though the applicant
was subject to deportation at the time that the
deportation order was made.
Section 7(3) of the Immigration Act' reads as
follows:
(3) Where any person who entered Canada as a non-immi
grant ceases to be a non-immigrant or to be in the particular
class in which he was admitted as a non-immigrant and, in
either case, remains in Canada, he shall forthwith report
such facts to the nearest immigration officer and present
himself for examination at such place and time as he may be
directed and shall, for the purposes of the examination and
all other purposes under this Act, be deemed to be a person
seeking admission to Canada.
The situation in so far as section 7(3) is
concerned must be ascertained by considering
what happened in fact in relation to the relevant
provisions of the statute and of the Regulations.
When the applicant crossed the border into
Canada in April, 1973, he was examined by an
Immigration Officer under section 19 of the
Act, 6 and, as a result of that examination, the
Immigration Officer let him "come into Cana-
6 Section 19(3) reads as follows:
(3) Unless the examining immigration officer is of opin
ion that it would or may be contrary to a provision of this
Act or the regulations to grant admission to or otherwise
let a person examined by him come into Canada, he shall,
after such examination, immediately grant admission to or
let such person come into Canada.
da" as a "visitor" under section 7(1)(c) or as a
business man under section 7(1)(h) of the Act,
which provisions authorize inter alia "visitors"
and "persons engaged in a legitimate ... trade
... entering Canada ... for the temporary exer
cise of their ... callings" to be allowed to enter
Canada "as non-immigrants". The applicant, not
having been issued any document when he was
so admitted, must have been admitted for three
months or less .' The applicant was, therefore,
immediately after he came into Canada, in
April, 1973, a person who had entered Canada
as a non-immigrant as a visitor or business man
for a period of no more than three months, a
period that would expire, at the latest, in July,
1973. 8
7 This follows from regulations adopted in December,
1972, the relevant parts of which read as follows:
3A. (1) Every person who seeks to enter Canada as a
non-immigrant for a limited time longer than three
months, othèr than as a member of a class of non-immi
grants described in paragraph 7(1)(a) or (b) of the Act,
shall make application to an immigration officer at the
port of entry on a prescribed form for registration as a
non-immigrant, and if, after examination by an immigra
tion officer, he is granted entry for a limited time longer
than three months, his entry shall be registered by the
immigration officer on a prescribed form.
(5) Where an immigration officer registers the entry of
a person as a non-immigrant on a form pursuant to
subsection (1), (2) or (3), he shall complete that form in
triplicate and
(a) give one copy thereof to the person whose entry as a
non-immigrant is registered thereon;
(6) Where a person is granted entry as a non-immigrant
and his entry
(a) is registered pursuant to this section, the purpose
and the limited time for which that person is granted
entry are the purpose and the limited time shown on the
copy of the form referred to in paragraph (5)(6); or
(b) is not registered pursuant to subsection (1), (2) or
(3), he shall, unless he was granted entry as a member
of a class of non-immigrants described in paragraph
7(1)(a) or (b) of the Act, be deemed to have been
granted entry for a limited time of not more than three
months.
8 There was no suggestion anywhere during the Inquiry
that this period was extended at any time before it expired.
At all times from August 16, 1973, when the
applicant had an interview with an Immigration
Officer during which he made his situation par
tially known, until the opening of the Inquiry,
the situation was as follows:
(a) the applicant was a person who had
entered Canada as a non-immigrant of a par
ticular class, namely, as a visitor or business
man for a period of not more than three
months, which period had expired;
(b) as the period for which the applicant had
entered as a visitor or business man had
expired, the applicant had "ceased ... to be
in the particular class in which he was admit
ted as a non-immigrant"; and
(c) the applicant had reported the facts estab
lishing the situation set out in paragraphs (a)
and (b) to the Immigration Officer as required
by section 7(3) of the Immigration Act.
It follows that, from August 16, 1973, until the
opening of the Inquiry, the applicant was, by
virtue of section 7(3), deemed to be a person
seeking admission to Canada. 9
' Two notes should be inserted here:
(a) As the applicant was, on the occasion of the August
visit, deemed to be a person seeking admission to Canada,
and as no document had been issued to him in connection
with his immigrant status, the suggestion, which was made
during the Inquiry on behalf of the applicant, that the
Immigration Officer verbally granted him an employment
visa on that occasion, must be rejected. This appears from
subsections (2) and (5) of section 3A of the Regulations
adopted in December, 1972. Those provisions read as
follows:
3A. (2) Where a person who entered Canada as a
non-immigrant reports to an immigration officer in
accordance with subsection 7(3) of the Act and again
seeks entry as a non-immigrant, the immigration officer
who examines that person shall, if he grants entry to
him, register the entry of that person on a prescribed
form.
(5) Where an immigration officer registers the entry
of a person as a non-immigrant on a form pursuant to
subsection (1), (2) or (3), he shall complete that form in
triplicate and
The effect, from a procedural point of view,
of the applicant having been deemed to be a
person seeking admission to Canada was to
bring into play sections 22 and 23 of the Immi
gration Act, which read as follows:
22. Where an immigration officer, after examination of a
person seeking to come into Canada, is of opinion that it
would or may be contrary to a provision of this Act or the
regulations to grant admission to or otherwise let such
person come into Canada, he may cause such person to be
detained and shall report him to a Special Inquiry Officer.
23. (1) Where the Special Inquiry Officer receives a report
under section 22 concerning a person who seeks to come
into Canada from the United States or St. Pierre and Mique-
lon, he shall, after such further examination as he may
deem necessary and subject to any regulations made in that
behalf, admit such person or let him come into Canada or
make a deportation order against such person, and in the
latter case such person shall be returned as soon as practi
cable to the place whence he came to Canada.
(2) Where the Special Inquiry Officer receives a report
under section 22 concerning a person, other than a person
referred to in subsection (1), he shall admit him or let him
come into Canada or may cause such person to be detained
for an immediate inquiry under this Act.
When the Immigration Officer who interviewed
the applicant on October 25, 1973, became
aware of the facts that brought section 7(3) into
play, he was required to treat the applicant as
though he were "a person seeking admission to
Canada". When, therefore, he formed the opin
ion that it would be contrary to the Immigration
Act to let the applicant "come into Canada", he
was required, by section 22, to report him to a
(a) give one copy thereof to the person whose entry
as a non-immigrant is registered thereon;
(b) The application of section 7(3) of the Immigration Act'
to these facts is based on the view that, when section 7(3)
speaks of the "particular class in which he was admitted
as a non-immigrant", the "limited time" for which he was
admitted enters into the definition of the "class" as
opposed to the view that the section refers only to the
classes enumerated in section 7(1), which latter view is
the view suggested by a superficial reading of section 7(1)
and (3). I have adopted this view because the definition of
"entry" in section 2 clearly indicates that a non-immigrant
is to be admitted not only for "a special or temporary
purpose" but is also to be admitted for "a limited time"
and because the machinery of the Act would be useless to
enforce the limitations on time unless such a limitation
enters into the definition of a "particular class" for the
purposes of section 7(3).
Special Inquiry Officer. As already indicated,
this is what he did.
Applying section 23(2), the Special Inquiry
Officer, having decided not to admit the appli
cant or let him come into Canada, was required
to cause him to be detained for an immediate
inquiry and it appears that this is what he did.'°
Having concluded that the Inquiry was duly
authorized by virtue of section 7(3), I turn now
to the substance of the deportation order.
The Special Inquiry Officer's duty, at the
conclusion of the hearing of the Inquiry, was
defined by section 27 of the Immigration Act,
which reads, in part, as follows:
27. (1) At the conclusion of the hearing of an inquiry, the
Special Inquiry Officer shall render his decision as soon as
possible and shall render it in the presence of the person
concerned wherever practicable.
(2) Where the Special Inquiry Officer decides that the
person concerned is a person who
(a) may come into or remain in Canada as of right;
10 When the section 22 report came before the Special
Inquiry Officer, that officer might have asked himself
whether the effect of section 7(3) was
(a) to deem the applicant to be "a person who seeks to
come into Canada from the United States" so as to bring
section 23(1) into play, or
(b) merely to deem the applicant to be "a person who
seeks to come into Canada" so as to bring section 23(2)
into play.
The view that a person who has been admitted as a non-
immigrant from the United States is deemed, by section 7(3)
when the facts make it apply, to be "a person seeking
admission to Canada" from the United States so as to bring
section 23(1) into play is not an untenable view. (Compare
The King v. Dominion Bridge Co. Ltd. [1940] S.C.R. 487.)
However, the words of the statute do not compel such a
view and I am of opinion that the better view is that in
accordance with which section 7(3) brings section 23(2) into
play in the circumstances of this case. The alternative is too
harsh. As I read section 23, in the case of a person seeking
to come into Canada from the United States or St. Pierre
and Miquelon, upon receipt of a section 22 report, a Special
Inquiry Officer may make a deportation order without an
"inquiry" first being held, while, in the case of any other
person seeking to come into Canada, no deportation order
can be made without an inquiry. A deportation order made
without affording the subject the protection of an inquiry is
too harsh a result to be accepted, if it can be avoided, having
regard to section 35, which forbids admission to the subject
of such an order without consent of the Minister.
(b) in the case of a person seeking admission to Canada,
is not a member of a prohibited class; or
(c) in the case of a person who is in Canada, is not proved
to be a person described in paragraph 18(1Xa),(6),(c),(d)
or (e),
he shall, upon rendering his decision, admit or let such
person come into Canada or remain therein, as the case may
be.
(3) In the case of a person other than a person referred to
in subsection (2), the Special Inquiry Officer shall, upon
rendering his decision, make an order for the deportation of
such person.
The result of subsections (2) and (3) of this
section in the case of a person who is deemed to
be "seeking admission to Canada" (leaving
aside persons coming in "as of right") is that, if
the Special Inquiry Officer decides that he is
"not a member of a prohibited class", 11 he must
admit or let such person come into Canada
(subsection (2)) and, if he finds that he is a
member of such a class, he must make a depor
tation order against him (subsection (3)).
As the applicant was deemed to be seeking
admission to Canada, even though he was actu
ally in Canada, it would seem that, for the
purpose of deciding whether the applicant was
in one of the prohibited classes, the Special
Inquiry Officer had to think of him at the con
clusion of the Inquiry as though he were at that
moment actually at the border seeking to be
admitted to Canada. The Special Inquiry Officer
appeared so to look at the matter and concluded
that the applicant was in two different prohib
ited classes, as appears from the following por
tion of the deportation order:
(iii) you are a member of a prohibited class of persons
described in paragraph 5(p) of the Immigration Act in that
in my opinion you are not a bona fide non-immigrant
because you are an immigrant,
(iv) you are a member of a prohibited class of persons
described in paragraph 5(t) of the Immigration Act in that
you do not comply with the requirements of the Immigra
tion Regulations Part I by reason of the fact that you are
not in possession of a letter of pre-examination in the
form prescribed by the Minister as required by subsection
28(2) of the Immigration Regulations, Part I.
" A "prohibited class" is defined by section 2 of the Act
to mean any of the classes of persons designated in
section 5.
The relevant part of section 5 reads as follows:
5. No person, other than a person referred to in subsec
tion 7(2), shall be admitted to Canada if he is a member of
any of the following classes of persons:
(p) persons who are not, in the opinion of a Special
Inquiry Officer, bona fide immigrants or non-immigrants;
(t) persons who cannot or do not fulfil or comply with
any of the conditions or requirements of this Act or the
regulations or any orders lawfully made or given under
this Act or the regulations.
As the applicant, throughout the interview of
October, 1973, with an Immigration Officer and
throughout the Inquiry before the Special Inqui
ry Officer, seemed to have been seeking non-
immigrant status although the evidence adduced
at the Inquiry established that, from some time
prior to coming to Canada, the applicant's inten
tion had always been to reside permanently in
Canada, the finding that the applicant fell within
section 5(p) does not seem to be open to attack.
Moreover, if, in fact, the applicant should have
been treated as an immigrant, 12 then, as already
explained, he fell within the prohibited class set
out in section 5(t) because he did not have the
documentation required by Regulation 28(1) and
(2).
Counsel for the applicant, as I understood
him, put forward no submission against the
validity of the deportation order in so far as it
was based on section 5(p)—that is the finding of
the Special Inquiry Officer that the applicant
was not, in his opinion, a bona fide non-immi-
grant—except that that finding was wrong on
the evidence. It is not, however, for this Court,
on a section 28 application, to re-weigh the
evidence. There was evidence upon which the
Special Inquiry Officer could find as he did and
he did not err in law in doing so. Indeed, on my
reading of the evidence, I do not see how he
12 Compare section 6 of the Immigration Act, which
reads:
6. Every person seeking to come into Canada shall be
presumed to be an immigrant until he satisfies the immi
gration officer examining him that he is not an immigrant.
could have come to any other conclusion. (I
might add that, in my view, that ground is
sufficient to support the deportation order even
if the applicant's attack in law on the deporta
tion order in so far as it is grounded on section
5(t), to which I will now come, were sound.)
The attack on the deportation order in so far
as it is grounded on section 5(t)—that is the
applicant's failure to have the documentation
required by section 28 of the Regulations—is
based on counsel's contention that it is estab
lished by the decision of the Supreme Court of
Canada in Podlaszecka v. Minister of Manpower
and Immigration 13 that such requirement cannot
be applied in such a case as the present. In the
Podlaszecka case, the Supreme Court, of Canada
had under consideration a deportation order one
of the grounds of which was that the person
against whom it had been made was not in
possession of a valid and subsisting immigrant
visa issued pursuant to Regulation 28(1), which
at that time, read as follows:
28. (1) Every immigrant who seeks to land in Canada shall
be in possession of a valid and subsisting immigrant visa
issued to him by a visa officer and bearing a serial number
which has been recorded by the officer in a register pre
scribed by the Minister for that purpose, and unless he is in
possession of such visa, he shall not be granted landing in
Canada.
Laskin J. (as he then was), delivering the judg
ment of the majority of the judges in the
Supreme Court of Canada, said at page 741 that
the person in question "was entitled to apply in
Canada for permanent residence" and that
Regulation 28(1) could not "be applied to her
without destroying her status under section 7(3)
of the Act" and that he "would not give it that
effect when it has subject-matter in its proper
context". Subsequent to that decision, on
November 6, 1972, [SOR/72-443] Regulation
28(1) was revoked and re-enacted to read as
follows:
28. (1) Every immigrant who seeks to land in Canada,
including an immigrant who reports pursuant to subsection
(3) of section 7 of the Act, shall be in possession of a valid
and subsisting immigrant visa issued to him by a visa officer
and bearing a serial number which has been recorded by the
officer in a register prescribed by the Minister for that
13 [1972] S.C.R. 733.
purpose, and unless he is in possession of such visa, he shall
not be granted landing in Canada.
By section 1 of chapter 28 of the Statutes of
1973, it was provided, "for greater certainty"
that Regulation 28(1), as so re-enacted, shall be
deemed for all purposes to have had the same
force and effect "as if it had been made .. .
pursuant to an Act of Parliament that authorized
the making of that subsection". The new Regu
lation 28(1) makes it clear on the face of it that
it applies to an "immigrant" who reports pursu
ant to section 7(3) and any possible doubt as to
its validity has, in my view, been removed by
chapter 28 of the Statutes of 1973. That being
so, there can be no ground in the reasoning in
the Podlaszecka case for not giving full effect to
the words of Regulation 28(2), which reads:
(2) The Minister may exempt any group or class of
persons from the requirements of subsection (1) but no
person coming within any group or class so exempted may
be granted landing in Canada unless at the time of his
application for landing he is in possession of a letter of
pre-examination in the form prescribed by the Minister.
Either there was an exemption order under
Regulation 28(2) that applied to the applicant, in
which event he required a letter of pre-examina
tion, which he did not have, or there was no
such exemption order, in which event he was,
under Regulation 28(1), required to have an
immigrant visa, which he did not have. The
applicant can only escape from the requirement
of Regulation 28(2) by bringing himself under
the requirement of Regulation 28(1). As he did
not comply with either, such an exercise cannot
result in invalidating the deportation order.
For the above reasons, I am of opinion that
the attack on the deportation order in so far as it
is grounded on section 5(p) or 5(t) of the Immi
gration Act must be rejected.
It remains to consider the attacks of the
appellant upon the manner in which the Special
Inquiry Officer conducted the "Inquiry" in this
case.
In so far as such attacks can be ascertained
from the appellant's memorandum in this Court,
they consist of allegations that the Special
Inquiry Officer was biased, did not conduct the
Inquiry fairly and did not discharge his decision-
making function properly. I have read and
reread the transcript of the Inquiry and I am of
opinion that, in spite of the most extraordinary
difficulties, the Special Inquiry Officer carried
on the Inquiry in a manner that more than meets
all the requirements of the law and of natural
justice. The only point of attack that warrants
special consideration is the fact that the Special
Inquiry Officer finally cut off the examination
of one of the applicant's witnesses and the
presentation of further evidence on behalf of
the applicant. Prima facie, such action on the
part of a hearing officer would constitute a
refusal of an opportunity to present the party's
full case. However, the Special Inquiry Officer
in this case had, prior to taking such action and
after having granted the applicant several
adjournments, permitted the very experienced
lawyer acting for the applicant to lead evidence
having nothing to do with the questions to be
decided at great length, and had finally said:
... Unless you have some further relevant information to
present at this time I ask you to submit your summary as
far as your client is concerned.
and the applicant's lawyer had nevertheless per
sisted in the course that he had followed
throughout the Inquiry of giving no indication of
any evidence relevant to the issues that he pro
posed to adduce.
During the course of argument in this Court,
counsel for the applicant was invited to show us
any occasion in the course of the proceedings
before the Special Inquiry Officer where coun
sel for the applicant had sought an opportunity
to bring evidence of any relevant fact and had
been refused it. Counsel was not able to show
us any such occasion. In the circumstances, I
am of the view that there is no basis for attack
ing the manner in which the hearing was con
ducted by the Special Inquiry Officer.
I am, for the aforesaid reasons, of the view
that the section 28 application should be
dismissed.
* * *
PRATTE J. concurred.
* * *
SHEPPARD D.J. concurred.
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