T-2030-78
In re the Immigration Act and in re Patrick
Vincent McCarthy (Applicant)
Trial Division, Cattanach J.—Vancouver, May 16
and 17, 1978.
Prerogative writs — Prohibition — Immigration
Application to prohibit inquiry convened pursuant to Federal
Court judgment setting aside deportation order — Director
ordered inquiry to be held after immigration officer's report
read over telephone, not after receipt of written report —
Procedural requirements of ss. 18 and 25 are not mandatory
but merely directory — Prohibition application dismissed —
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28 —
Immigration Act, R.S.C. 1970, c. I-2, ss. 18, 25.
APPLICATION.
COUNSEL:
J. R. Taylor for applicant.
G. Carruthers for respondent.
SOLICITORS:
John Taylor Associates, Vancouver, for
applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
CATTANACH J.: This is an application for prohi
bition to be directed to the Minister of Employ
ment and Immigration and the Adjudicator named
in the above style prohibiting them from proceed
ing with the conduct of an inquiry convened with
respect to the applicant, Patrick Vincent
McCarthy on May 8, 1978.
In addition mandamus was also sought with
respect to matters specifically set out in the notice
of motion but at the hearing of the matter counsel
for the applicant abandoned these requests so that
only prohibition, as above indicated, was request
ed.
There had been a prior inquiry convened which
resulted in an order of deportation being made by
a Special Inquiry Officer.
By judgment dated May 4, 1978 [see page 121
supra] pursuant to an application to review under
section 28 of the Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, the Court of Appeal set aside
the deportation order so made and the matter was
remitted to the immigration authorities for a new
inquiry.
It is the inquiry convened pursuant to that judg
ment that is presently being sought to prohibit.
The ground for so requesting is predicated upon
sections 18 and 25 of the Immigration Act, R.S.C.
1970, c. I-2, in force when the inquiry was first
convened.
By virtue of section 18, an immigration officer
"shall send a written report to the Director, with
full particulars, concerning" the person described
in subsection (1) of section 18.
By virtue of section 25 "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."
While the immigration officer made a written
report as contemplated by section 18 he did not
send that written report to the Director. Rather he
read the report over the telephone to the Director
and the Director thereupon caused the inquiry to
be held.
There is no doubt that the inquiry is to be
conducted with respect to a person under the
former Immigration Act nor do I think that the
Court of Appeal contemplated that the entire
procedure should be begun afresh. By the former
inquiry the applicant had not been given a fair
hearing because the hearing proceeded in the
absence of the applicant's counsel. It is the inquiry
that was to be convened and conducted anew.
Therefore it is the verbal report of the written
report and the Director's action thereon which
continue to be those which initiate the chain of
circumstances resulting in this inquiry.
The position taken by the counsel for the appli
cant was that the provisions of sections 18 and 25
are mandatory and since they have not been com
plied with the Adjudicator is without jurisdiction
to conduct the inquiry. If this be so then prohibi
tion would be properly awarded.
An express procedural requirement in a statute
may be
(a) mandatory or imperative in which case a
failure to adhere to it will invalidate a purported
exercise of a power of decision, or
(b) directory in which case a failure to adhere
to it will not invalidate a purported exercise of
power.
In my view, from the authorities cited to me, the
procedure indicated by sections 18 and 25 is direc
tory only from which reason prohibition would not
lie.
Further, in response to an inquiry from myself,
counsel for the applicant answered that the action
under section 18 was administrative and purely
procedural, rather than judicial or quasi-judicial
and that the action of the Director under section
25 is discretionary in him. With this I agree.
That being so, the prerogative writ, particularly
prohibition, will not issue to preclude administra
tive or discretionary actions.
For the foregoing reasons I decline to exercise
my discretion to grant prohibition and the applica
tion therefor is dismissed.
I do not condone the failure of the immigration
officials to meticulously follow the provisions of
the statute with which they should be familiar. In
exculpation, however, these events took place on
Good Friday with the consequent difficulties of the
holiday.
Accordingly there shall be no award of costs to
either party.
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.