. A-348-75
Sultan Ali Wazir Ali (Applicant)
v.
Minister of Manpower and Immigration
(Respondent)
Court of Appeal, Jackett C.J., Urie J. and
MacKay D.J.—Toronto, August 5 and 6, 1975.
Judicial review—Citizenship and immigration—Deporta-
tion—Document purporting to be a section 25 direction—
Whether proof of Ministerial authority—Whether proof that
signing party within that authority—Immigration Act, R.S.C.
1970, c. 1-2, ss. 2, 14, 15, 22, 23, 25-27 and 60—Immigration
Inquiries Regulations, ss. 6, 7(b).
Applicant claims that a document purporting to be a section
25 direction is deficient in that it lacks (1) proof of authority
from the Minister for someone to act for the "Director"; (2)
proof that the signing party comes within such authority.
Held, the application is dismissed. The party purports to sign
"for" the Director, and until rebutted, there is a presumption
that he had the authority that he purported to exercise. What
was involved was an administrative departmental inquiry, and
there is at least a prima facie presumption that the Special
Inquiry Officer knew who had appropriate authority, and
would not have proceeded until he had a proper direction.
When section 25 is read with the definition of Director, it
authorizes such action if the official was authorized by the
Minister to act "for" the Director. Under section 60, appli
cant's claim can be argued only by the Minister, or someone
acting for him, or Her Majesty.
Ramjit v. Minister of Manpower and Immigration [1976]
1 F.C. 184, distinguished.
JUDICIAL review.
COUNSEL:
J. P. French for applicant.
G. R. Garton for respondent.
SOLICITORS:
Hughes, Amys, Toronto, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment of
the Court delivered orally in English by
JACKETT C.J.: After this section 28 application
had been fixed for hearing at Toronto on August
5, 1975—but some days prior to that day—a
consent to judgment setting aside the deportation
order attacked by that section 28 application was
filed in the Court but, as the Court is of the view
that it cannot give such a judgment based merely
on a consent, and as it was not apparent to the
Court on the face of the record that the deporta
tion order should be set aside, counsel were
informed that the matter would have to come on
for hearing at the time and place originally fixed.
When the matter came on for hearing, it
appeared that the consent to judgment was based
on the view that the matter was governed by this
Court's decision in Ramjit v. The Minister of
Manpower and Immigration [[1976] 1 F.C. 184]
in which judgment was delivered from the Bench
at Toronto on June 20, 1975.
After hearing counsel on the point in question,
the Court concluded that the point on which the
Ramjit case was decided had no application in this
case and declined to give judgment based on the
consent. The applicant's counsel was thereupon, at
his request, given further time to prepare argu
ment on other aspects of the case. Such further
argument was heard this morning and counsel for
the respondent was not required to, reply thereto.
These reasons have been prepared for the pur
pose of explaining why, in our view, the Ramjit
case has no application in this case.
By way of introduction, it should be remem
bered that a Special Inquiry Officer may make a
deportation order (see section 27 of the Immigra
tion Act) at the conclusion of an inquiry following:
(a) a section 22 report (see section 23(2)),
(b) an arrest under section 14 or 15 (see section
24), or
(c) a section 18 report (see section 25);
but that, while an inquiry following a section 22
report or a section 14 or 15 arrest must be held as
a matter of course, the statute only authorizes the
holding of an inquiry following the making of a
section 18 report where the "Director" considers
"that an inquiry is warranted" and, as a result,
takes action to "cause an inquiry to be held". This
is the effect of section 25, which reads as follows:
25. Subject to any order or direction by the Minister, the
Director shall, upon receiving a written report under section 18
and where he considers that an inquiry is warranted, cause an
inquiry to be held concerning the person respecting whom the
report was made. R.S., c. 325, s. 26.
Section 25 must be read with the definition of
"Director" in section 2, which reads as follows:
"Director" means the Director of the Immigration Branch of
the Department of Manpower and Immigration or a person
authorized by the Minister to act for the Director;
It is also to be remembered that, while the
"inquiry" contemplated by section 25 is an inquiry
by an administrative officer into a matter which
must be investigated to implement the prohibitory
aspects of the Immigration Act, such inquiry must
be carried on in accordance with certain provisions
of that Act (sections 26 and 27(1)) and regulations
made by the Minister under section 58 of the Act,
and that such regulations require inter alia that
the section 25 direction be made in writing
(regulation 6) and that such direction be filed as
an exhibit at the commencement of the inquiry
(regulation 7(b))'.
Finally, it is to be remembered that, in both the
Ramjit case and this case, the matter before this
Court is a proceeding under section 28 of the
Federal Court Act, whereby a person against
whom a deportation order has been made is
attacking the validity of that order and that the
basic rule is that the onus of proof of facts—where
they are necessary for his attack—is on the attack
er. (This onus only becomes of consequence when
an attack depends upon a fact that has not been
established on the material otherwise before this
Court in the section 28 proceeding.) This onus is
not to be confused with the onus in the inquiry
before the Special Inquiry Officer of establishing
facts sufficient to support a deportation order. In
an inquiry following a section 22 report, the
burden of proving that he is not prohibited from
coming into Canada is on the person concerned
(section 26(4)) whereas a deportation order can
probably not be made following an inquiry ini
tiated by a section 18 report unless the Special
The regulations in question—the Immigration Inquiries
Regulations—were made when the present sections 18 and 25
of the Immigration Act were sections 19 and 26 respectively.
Inquiry Officer has found "evidence considered
credible or trustworthy by him" (section 26(3)) of
all the facts necessary to support a deportation
order.
Turning to the Ramjit case, the reasons for
judgment in that case read as follows:
In our opinion the document marked "Exhibit A", which
appears in the record before us, does not correspond to what is
described in the transcript of proceedings as being the direction
pursuant to which the inquiry was being held and which was
then read. As the report of the inquiry contains no note of the
filing as "Exhibit A" of the direction so read, it does not appear
to us to be established either that the document marked
"Exhibit A" was the direction pursuant to which the inquiry
was held or that Rule 7(b) of the Immigration Inquiries
Regulations was complied with.
Moreover, in our opinion, nothing in the record shows that
the person who issued the direction that was read at the inquiry
was the Director of Immigration or a person authorized by the
Minister to act for the Director of Immigration.
The deportation order is therefore set aside.
What that says, as we understand it, is that it did
not appear to the Court in that case that the
inquiry was preceded by a direction that satisfied
the requirements of section 25. 2
We do not read the final paragraph of the
Ramjit reasons as making it a ground of the
decision that the omission from the "record" of the
inquiry of something to show that the person who
issued the direction had authority to do so, of
itself, invalidated the inquiry. In our view, whether
such person had that authority is a question of fact
that, in an appropriate case, can be made the
subject of evidence in this Court. This, however, is
not a matter that has to be decided on this applica
tion although our understanding is that the Court
has, in other cases, received such evidence.
Turning to the relevant facts in this matter,
during the early stages of the inquiry, a document
purporting to be a section 25 direction was made
2 In any event, as we understand it, such a direction had not
been made an exhibit at the inquiry and, in view of the
requirements of section 7(b) of the Immigration Inquiries
Regulations, this omission could, in our view, properly be
regarded as negating any presumption that might otherwise
arise that the inquiry had been held in accordance with a
proper direction.
an "exhibit" and the only defects argued against it
are based on the fact that the document in ques
tion was signed as follows:
D. Lalonde
Assistant Director General (Immigration Operations), Ontario
Region
For Director of Immigration Branch
Department of Manpower and Immigration
Unlike the Ramjit case, we have here as an
"exhibit" at the inquiry the "direction" pursuant
to which the inquiry was held. What seems to be
put forward as being deficient in the direction is:
(a) a lack of any proof of an authority from the
minister for some person to act for the "Director
of the Immigration Branch of the Department
of Manpower and Immigration" as contemplat
ed by the definition of "Director",
and
(b) proof that the person who signed the direc
tion fell within that authority.
The first answer to that attack, in our view, is
that, on the face of the direction, the person who
signed it purports to do so "for" the Director of
the Immigration Branch and, in accordance with
the ordinary rules regarding departmental
administration, until such time as it is rebutted,
there is a presumption that he had the authority
that he purported to exercise. In this case, we
think that there is the supporting fact, that what
was involved was an administrative departmental
inquiry and that there is at least a prima facie
presumption that the Special Inquiry Officer knew
who had, and who had not, appropriate authority
and that he would not have proceeded with an
inquiry until he had a proper direction.'
The matter does not, however, rest there as
section 60(1) of the Immigration Act would seem
to have dealt expressly with how documents pur -
3 Indeed, the Special Inquiry Officer stated, when putting the
direction in as "exhibit", that it was made "as authorized by
section 25".
porting td have been made under the Act are to be
considered. 4 The relevant words of section 60(1)
read as follows:
60. (1) Every document purporting to be a ... document
over the name in writing of the ... person authorized under this
Act to make such document is, in any ... proceeding under or
arising out of this Act..., evidence of the facts contained
therein, without proof of the signature or the official character
of the person appearing to have signed the same, unless called
in question by the Minister or some other person acting for him
dr Her Majesty.
Here we have a document purporting to show
that an immigration official acting "for" the
Director of the Branch has caused an inquiry to be
held as contemplated by section 25, and when
section 25 is read with the definition of "Director",
it authorized such action if the official was author
ized by the Minister to act "for" the Director. In
our view, the legislation has adequately manifested
by section 60 that the point taken here on behalf of
the applicants cannot be taken except by the Min
ister or some person acting for him or Her
Majesty.
In the circumstances, the section 28 application
will be dismissed.
4 Section 60(1) reads as follows:
60. (1) Every document purporting to be a deportation
order, rejection order, warrant, order, summons, direction,
notice or other document over the name in writing of the
Minister, Director, Special Inquiry Officer, immigration offi
cer or other person authorized under this Act to make such
document is, in any prosecution or othèr proceeding under or
arising out of this Act or the Immigration Appeal Board Act,
evidence of the facts contained therein, without proof of the
signature or the official character of the person appearing to
' have signed the same, unless called in question by the
Minister or some other person acting for him or Her
Majesty.
5 Which is, in effect, an attack on the "official character of
the person appearing to have signed" the direction as a person
who falls within the definition of "Director".
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.