T-223-79
In re Immigration Act, 1976, and in re Miroslav
Hudnik
Trial Division, Walsh J.—Vancouver, January 10;
Ottawa, January 26, 1979.
Prerogative writs — Mandamus — Immigration — Refugee
status — Application made for refugee status after order
made for deportation — Applicant informed that application
could not be entertained because of deportation order
Whether or not mandamus should issue requiring the Minister
to process and adjudicate upon the applicant's application for
refugee status — Immigration Act, 1976, S.C. 1976-77, c. 52,
ss. 2(1),(2), 3 (g), 6 ( 2 ), 27(2)(j).
Applicant seeks a writ of mandamus ordering the Minister of
Employment and Immigration to process and adjudicate upon
his application for refugee status made to the Employment and
Immigration Commission. After leaving his ship, applicant, a
Yugoslavian merchant seaman, approached the immigration
authorities and asked permission to remain permanently in
Canada. As a result of a report, an inquiry was held and an
order for deportation issued. After the dismissal of an applica
tion to extend the delay for appeal, applicant informed the
Immigration Officer that he wished to place before the Com
mission a claim for refugee status. He was informed that as he
had already been ordered deported the Commission could not
entertain such an application. It is contended that it is the
statutory responsibility of the Minister of Employment and
Immigration to process applicant's application and claim for
refugee status made pursuant to the Immigration Act, 1976,
and to adjudicate upon the application, and that for him to
refuse to process the application is contrary to the United
Nations Convention on Refugee Status.
Held, the application is granted. There should be some
procedure whereby an applicant for refugee status can make an
application and cause an inquiry to be instituted, rather than
being forced to await the commencement of an inquiry based
on a report seeking his deportation and then making his claim
for refugee status as an incident in the course of this inquiry.
Whether applicant is a political refugee or not within the
meaning of the International Convention is not an issue to be
determined in the present proceedings, but natural justice
would appear to require that he be given an opportunity to be
heard. Although it is not desirable that there should be a
multiplicity of inquiries, and that when an inquiry has been
terminated and deportation properly ordered it should then be
possible to reopen the whole matter by raising a new issue,
natural justice and compliance with the United Nations Con
vention Relating to the Status of Refugees requires that some
means be found of giving a hearing to applicant on his claim for
refugee status.
APPLICATION.
COUNSEL:
D. J. Rosenbloom for applicant.
G. Donegan for Minister of Employment and
Immigration.
SOLICITORS:
Rosenbloom & McCrea, Vancouver, for
applicant.
Deputy Attorney General of Canada for Min
ister of Employment and Immigration.
The following are the reasons for order ren
dered in English by
WALSH J.: Although the notice of motion herein
seeks a writ of mandamus ordering the Minister of
Employment and Immigration to process and
adjudicate upon the applicant's application for
refugee status made to the Employment and
Immigration Commission on the 9th of January
1979 and also a writ of prohibition to prevent the
execution of an order of deportation made against
said applicant on July 28, 1978, and an injunction
to the same effect until such time as his applica
tion for refugee status has been processed and
adjudicated upon, it is only the question of the
issue of writ of mandamus which is now in issue
since at the hearing representatives of the Minister
and his counsel agreed not to carry out the depor
tation until a final decision has been made on the
issues raised in this motion. I am not of the view
that a writ of prohibition would be an appropriate
remedy in any event as there is no suggestion that
the conduct of the inquiry leading to the issue of
the order of deportation or the issue of that order
was in any way irregular or improper on the basis
of the evidence before the Inquiry Officer at the
time.
Applicant's argument is based on the contention
that it is the statutory responsibility of the Minis
ter of Employment and Immigration to process his
application and claim for refugee status made
pursuant to the Immigration Act, 1976,' and to
adjudicate upon the application according to law,
and that for him to refuse to process applicant's
application is contrary to the United Nations Con
' S.C. 1976-77, c. 52.
vention on Refugee Status. The facts are set out in
the affidavit of applicant Miroslav Hudnik, that he
is a citizen of Yugoslavia and has been a resident
of that country for most of his life. He entered
Canada at the Port of Vancouver as a crew
member of a merchant vessel on July 4, 1978 and
left the vessel without the captain's permission
about one hour before the vessel was due to sail on
July 5, 1978. He thereupon approached the immi
gration authorities and asked permission to remain
permanently in Canada. On July 7 a report was
made pursuant to section 27 of the Immigration
Act, 1976. It was properly made by virtue of
section 27(2)(j) of the Act which calls for such
report in the case of a person other than a Canadi-
an citizen or a permanent resident who
27. (2) ...
(j) came into Canada as or to become a member of a crew
and, without the approval of an immigration officer, failed to
be on the vehicle when it left a port of entry,
As a result of the report an inquiry was held on
July 28, 1978 and an order of deportation was
issued on that date. He was not represented by
counsel during the inquiry proceedings although it
is conceded that he was asked if he wished counsel,
nor was he specifically asked whether he claimed
refugee status under the United Nations Conven
tion for Refugee Status, and he made no such
claim.
He subsequently retained counsel who filed a
motion in the Federal Court of Appeal for an
order to extend the time to file an originating
notice of motion pursuant to section 28 of the
Federal Court Act, R.S.C. 1970 (2nd Supp.),
c. 10. Examination of the Appeal Record bearing
No. 78-A-71 discloses that Richard R. Babb his
then solicitor filed an affidavit indicating that
applicant wished to immigrate to Canada but was
denied the right by the Government of Yugoslavia
on the grounds that he had no relatives in Canada,
that he left the ship in British Columbia as indicat
ed, he wishes to live in Canada and has a sponsor
who will ensure his financial responsibility and
that if he is deported to Yugoslavia he will receive
3 years of imprisonment for leaving his ship and
upon his release be given only the most menial job
for the rest of his life as a lifetime punishment.
Counsel for the Minister replied that there is no
suggestion that the applicant is a Convention
refugee within the meaning of section 2(2) of the,
Immigration Act, 1976, that his reluctance to
return to Yugoslavia is a result of his fear of
persecution for leaving his ship and not the result
of any "well-founded fear of [being persecuted]
for reasons of race, religion, nationality, member
ship of a particular social group or political opin
ion" within the meaning of Article 1A(2) of the
Convention. The application to extend the delay
for appeal was dealt with under Rule 324 and in
due course on December 13, 1978, Urie J. ren
dered the following order:
The Applicant having failed to satisfy the Court that he had a
reasonable arguable ground for review, the application for an
extension of time for filing the section 28 application is refused.
It cannot be concluded that his proposed
application for refugee status has in any way been
dealt with on the merits, the decision of the Court
of Appeal being merely to the effect that there was
no reason to extend the delay for a review of the
decision of the Inquiry Officer, which decision, as
is clearly apparent, was proper and the only one
which could have been made on the basis of the
information before the Inquiry Officer. He
engaged his present counsel on January 5, 1979.
On January 9 he attended the Canadian Immigra
tion Centre in Vancouver with him and informed
an Immigration Officer there that he wished to
place before the Commission a claim for refugee
status. He was informed that as he had already
been ordered deported from Canada the Commis
sion could not entertain such an application. He
was in due course ordered to report to the Immi
gration Centre on January 11, 1979 for deporta
tion, which by agreement has now been postponed
until the decision on the present application.
Applicant's ground for a consideration of his
application for refugee status despite an order for
deportation having already been issued is based on
section 6(2) of the Act which reads as follows:
6....
(2) Any Convention refugee and any person who is a
member of a class designated by the Governor in Council as a
class, the admission of members of which would be in accord
ance with Canada's humanitarian tradition with respect to the
displaced and the persecuted, may be granted admission subject
to such regulations as may be established with respect thereto
and notwithstanding any other regulations made under this
Act. [Underlining is mine.]
Convention refugee is defined in section 2(1) of
the Act as follows:
2. (1) In this Act,
"Convention refugee" means any person who, by reason of a
well-founded fear of persecution for reasons of race, religion,
nationality, membership in a particular social group or politi
cal opinion,
(a) is outside the country of his nationality and is unable
or, by reason of such fear, is unwilling to avail himself of
the protection of that country, or
(b) not having a country of nationality, is outside the
country of his former habitual residence and is unable or,
by reason of such fear, is unwilling to return to that
country;
Section 2(2) reads as follows:
2....
(2) The term "Convention" in the expression "Convention
refugee" refers to the United Nations Convention Relating to
the Status of Refugees signed at Geneva on the 28th day of
July, 1951 and includes the Protocol thereto signed at New
York on the 31st day of January, 1967.
The procedure for such an application is dealt with
in sections 45 to 48 of the Act under the heading
Determination of Refugee Status. Section 45(1)
refers to the making of such a claim "during an
inquiry" and upon such a claim being made con
tinuation of the inquiry seeking a removal order or
departure notice. He is then to be examined under
oath by a senior Immigration Officer as to this
claim and the transcript of the examination is
referred to the Minister who then refers it to the
Refugee Status Advisory Committee established
pursuant to section 48, and after having obtained
the advice of that Committee determines whether
or not the person is a Convention refugee. Accord
ing to section 47 when it has been determined by
the Minister or by the Board that the person is a
Convention refugee the inquiry shall then be con
tinued to ascertain whether or not he is a person
described in subsection 4(2). An examination of
this subsection indicates that section 27(2)(j) by
virtue of which the report was made leading to the
deportation order is not one of those coming within
the exceptions preventing an applicant from re
maining in Canada notwithstanding being a Con
vention refugee. The problem in the present case
arises from the fact that while sections 45 and
following set out the procedure when an applicant
claims to be a Convention refugee during the
course of an inquiry no provision seems to be made
for the initiation of an inquiry for this specific
purpose. As counsel points out this appears to be
contrary to the spirit of the Act set out in section 3
under the heading "Canadian Immigration Poli
cy". Paragraph 3(g) recognizes the need to "fulfil
Canada's international legal obligations with
respect to refugees and to uphold its humanitarian
tradition with respect to the displaced and the
persecuted". Read in conjunction with section 6(2)
(supra) it would appear that there should be some
procedure whereby an applicant for refugee status
can make such an application and cause an inquiry
to be instituted, rather than being forced to await
the commencement of an inquiry based on a report
seeking his deportation and then making his claim
for refugee status as an incident in the course of
this inquiry. As applicant's counsel pointed out an
applicant might quite possibly enter Canada legal
ly, on a student visa for example, and, before it has
expired, as the result of changed conditions in his
country of origin, find it impossible to return there
and wish to claim refugee status, but as he is still
legally in the country on the student visa there
would be no inquiry to make such claim during the
course thereof. In the present case it must be said
that applicant had an opportunity to claim refugee
status during the course of the inquiry and failed
to do so, but he was without benefit of counsel at
the time, and newly arrived in this country and no
doubt unaware of its laws. In his favour it must be
pointed out that he immediately reported to an
Immigration Officer after leaving his ship. Wheth
er he is a political refugee or not within the
meaning of the International Convention is not an
issue to be determined in the present proceedings,
but natural justice would appear to require that he
be given an opportunity to be heard. Section 35 of
the Act reads as follows:
35. (1) Subject to the regulations, an inquiry by an
adjudicator may be reopened at any time by that adjudicator or
by any other adjudicator for the hearing and receiving of any
additional evidence or testimony and the adjudicator who hears
and receives such evidence or testimony may confirm, amend or
reverse any decision previously given by an adjudicator.
(2) Where an adjudicator amends or reverses a decision
pursuant to subsection (1), he may quash any order or notice
that may have been made or issued and where he quashes any
such order or notice, he shall thereupon take the appropriate
action pursuant to section 32.
(3) Where an order or notice is quashed pursuant to subsec
tion (2), that order or notice shall be deemed never to have
been made or issued.
The original adjudicator who made the inquiry
confirming that section 27(2)(j) applied, could
reopen the inquiry and then adjourn same pursu
ant to section 45 to permit applicant to be exam
ined under oath by a senior Immigration Officer
respecting his claim for refugee status. While the
words "Subject to the regulations" in the begin
ning of section 35 raise some problems since there
is no specific regulation providing for the reopen
ing of the inquiry under these circumstances, they
might perhaps be interpreted broadly so as to
permit the inquiry to be reopened subject to sec
tions 45 and following, and certainly this would be
within the spirit of section 6(2) which provides for
the granting of admission to such a refugee "sub-
ject to such regulations as may be established with
respect thereto and notwithstanding any other
regulations made under this Act."
The question is a difficult one especially since
the inquiry was completed and the deportation
order made. In such circumstances even a Minis
ter's permit under section 37(1)(b) permitting a
person to remain notwithstanding such report
cannot as a result of the provisions of section 37(2)
be issued once a removal order or departure notice
has been issued. It is certainly not desirable that
there should be a multiplicity of inquiries, and that
when an inquiry has been terminated and deporta
tion properly ordered it should then be possible to
reopen the whole matter by raising a new issue.
However against this it must be said that natural
justice and compliance with the United Nations
Convention Relating to the Status of Refugees
requires that some means should be found of
giving a hearing to applicant on his claim for
refugee status.
A question was raised as to the jurisdiction of
the Court and whether proceedings under section
18 of the Federal Court Act were properly appli
cable. In the case of Russo v. Minister of Man
power and Immigration 2 Sweet D.J. found that an
order for prohibition or injunction did not properly
lie under the provisions of section 18 of the Feder
al Court Act, against the Minister, the words
"person or persons" in that section not including
persons authorized only to implement a decision
made by a tribunal, so that the respondent was not
a "person". In that case an application for refugee
status had already been heard and denied, how
ever, and an application for leave to appeal the
deportation order had been refused by the Immi
gration Appeal Board. In the case of McDonald 3
an application for mandamus was granted from
the Bench unopposed by counsel for the Minister,
and an application for injunction was also granted.
In the Court of Appeal in the case of Tsiafakis 4
the decision of the Trial Court to issue a writ of
mandamus ordering the Minister to provide the
petitioner with the appropriate form for her to
complete for the sponsorship of her parents for
landed immigrant status in Canada was sustained.
I conclude that this Court has the authority to
issue a writ of mandamus as sought by applicant
and that such a writ should be issued on the facts
of this case.
2 [1977] 1 F.C. 325.
3 [1977] 1 F.C. 704.
4 [1977] 2 F.C. 216.
ORDER
A writ of mandamus is hereby issued to the
Minister of Employment and Immigration order
ing the said Minister to process and adjudicate
upon the applicant Miroslav Hudnik's application
for refugee status made to the Employment and
Immigration Commission on the 9th day of Janu-
ary 1979 with costs.
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.