A-537-80
Shane Gregory Brannon (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
Court of Appeal, Heald J., MacKay and Kelly
D.JJ.—Toronto, October 9 and 29, 1980.
Judicial review — Immigration — Application to review
and set aside Adjudicator's deportation order — Order made
before determination by the Immigration Appeal Board of
applicant's claim for refugee status — Whether Adjudicator
made reviewable error — Immigration Act, 1976, S.C. 1976-
77, c. 52, ss. 4(2), 27, 45(1), 46, 47, 70(2), 71(1) — Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
This is a section 28 application to review and set aside a
deportation order made by the Adjudicator against the appli
cant on July 31, 1980. Section 27 of the Immigration Act,
1976, requires an adjudicator holding a hearing pursuant to
that section: (1) to hear the evidence to be adduced together
with the submissions of the person concerned and the Minister;
(2) to render a decision as to the proof of the allegations set out
in the section 27 report of the immigration officer and (3) if his
decision under (2) is in the affirmative, and in the circum
stances of this case, to make either a deportation order or a
departure notice. However, in the case of a claim for refugee
status, subsection 45(1) directs the adjudicator to continue the
inquiry and to make the determination he would have made but
for the claim. The question is whether the Adjudicator erred in
rendering the deportation order when applicant's refugee claim
made in July 1979 has not yet been disposed of.
Held, the application is dismissed and the deportation order
is set aside. The fact that the refugee claim has not yet been
disposed of does not affect the validity of steps (1) and (2)
which have been completed by the Adjudicator. The reconsider
ation of the question of "equivalency" of offences previously
referred back to the Adjudicator by this Court was a part of the
first two steps and was thus within the jurisdiction of the
Adjudicator pursuant to subsection 45(1) of the Act. That
matter and all other matters required to be dealt with in steps
(1) and (2) have been satisfactorily dealt with by the Adjudica
tor. However, the Adjudicator is precluded from taking step (3)
until the adjourned inquiry is "resumed" pursuant to subsection
46(1), i.e. until such time as the Board has determined appli
cant's refugee status.
APPLICATION for judicial review.
COUNSEL:
Glen Bell for applicant.
B. Evernden for respondent.
SOLICITORS:
Glen Bell, c/o Parkdale Community Legal
Services, Toronto, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment of
the Court rendered in English by
HEALD J.: We are all of the view, despite the
very able and detailed argument of counsel for the
applicant, that Adjudicator P. J. Delaney did not
make any error reviewable by this Court in
making the deportation order dated July 31, 1980,
against the applicant. However, on October 9,
1980 (File A-161-80) [not reported] this panel of
the Court set aside the determination of the Immi
gration Appeal Board under subsection 71(1) of
the Immigration Act, 1976, S.C. 1976-77, c. 52,
that the applicant is not a Convention refugee and
referred the matter back to the Board for decision
on the basis that under subsection 71(1) of the
Immigration Act, 1976, the Board cannot take
into consideration evidence other than the docu
ments mentioned in subsection 70(2) of the Act.
Where, as in this case, an adjudicator embarks
upon an inquiry pursuant to the provisions of
section 27 of the Immigration Act, 1976, he is
required, in the ordinary course of events, and, in
the absence of a claim for refugee status, to pro
ceed as expeditiously as possible:
1. to hear the evidence to be adduced together
with the submissions of or on behalf of the
person concerned and the Minister;
2. to render a decision as to whether the allega
tions set out in the section 27 report of the
immigration officer have been proven;
3. in the event his decision under 2 supra is in
the affirmative and in the circumstances of this
case, since this is a paragraph 27(2)(a) and
paragraph 19(2)(a) matter, make either a
deportation order or a departure notice.
Where, however, in a case such as this, the person
concerned has claimed to be a Convention refugee,
(the resolution of which question is reserved to the
Minister and the Immigration Appeal Board,
rather than to the adjudicator), subsection 45(1)
of the Act' directs the adjudicator to continue the
inquiry and to make the determination he would
have made but for the applicant's claim for
refugee status. In proceeding thus far the
adjudicator will have completed step 1 and step 2
as set forth supra. In our view, his authority to
continue to this point is unquestionable under the
provisions of the Act.
At this stage the adjudicator is required to
interrupt the proceedings before him and is not
empowered to "resume" them until the question of
refugee status has been disposed of as provided by
the Act.
After the refugee status has been disposed of
and when that disposition has been to disallow the
claim, upon being directed so to do by a senior
immigration officer, the adjudicator is required to
"resume" the inquiry 2 .
The only restraint on the authority of the
adjudicator occasioned by the claim for refugee
status relates to step 3 supra. So long as the
adjudicator proceeds with step 1 and step 2, he is
authorized to "continue" up to the completion of
step 2 by the provisions of subsection 45(1) supra.
He is however precluded from taking step 3 until
the adjourned inquiry is "resumed" pursuant to
subsection 46(1).
' Subsection 45(1) of the Immigration Act, 1976 reads as
follows:
45. (1) Where, at any time during an inquiry, the person
who is the subject of the inquiry claims that he is a Conven
tion refugee, the inquiry shall be continued and, if it is
determined that, but for the person's claim that he is a
Convention refugee, a removal order or a departure notice
would be made or issued with respect to that person, the
inquiry shall be adjourned and that person shall be examined
under oath by a senior immigration officer respecting his
claim.
2 This procedure is set out in subsection 46(1) of the Immi
gration Act, 1976 and reads as follows:
46. (1) Where a senior immigration officer is informed
pursuant to subsection 45(5) that a person is not a Conven
tion refugee, he shall, as soon as reasonably practicable,
cause the inquiry concerning that person to be resumed by
the adjudicator who was presiding at the inquiry or by any
other adjudicator, but no inquiry shall be resumed in any
case where the person makes an application to the Board
pursuant to subsection 70(1) for a redetermination of his
claim that he is a Convention refugee until such time as the
Board informs the Minister of its decision with respect
thereto.
In the instant case, while the determination of
the refugee claim made in July of 1979 has not yet
been disposed of, because of the order of this panel
of the Court dated October 9, 1980 in File No.
A-161-80, this circumstance does not, in our view,
affect the validity of steps 1 and 2 which have been
completed by the Adjudicator. The reconsideration
of the question of the "equivalency" of offences
referred back to the Adjudicator by this Court in
File No. A-213-80 [[1981] 2 F.C. 141] was a part
of the first two steps and, consequently, was within
the jurisdiction of the Adjudicator as set out in
subsection 45(1) supra. That matter and all other
matters required to be dealt with in steps 1 and 2
have, in our view, been satisfactorily dealt with by
the Adjudicator.
The position therefore is that, because of the
order of October 9, 1980 in File No. A-161-80
referred to supra, the question of the applicant's
refugee status has not been determined by the
Board. Accordingly, pursuant to subsection 46(2) 3 ,
the Adjudicator cannot "resume" the inquiry until
such time as the Board has made that determina
tion and thus, he clearly cannot embark on step 3
at this juncture.
Thus, it is our opinion that the deportation order
against the applicant must be set aside and the
matter referred back to Adjudicator Delaney or to
another adjudicator to be designated by the appro
priate senior immigration officer. The reference
back must be on terms that the inquiry is to be
resumed only after the Board has advised the
Minister pursuant to subsection 46(1) of its deci
sion with respect to the applicant's claim.
3 Subsection 46(2) reads as follows:
46....
(2) Where a person
(a) has been determined by the Minister not to be a
Convention refugee and the time has expired within which
an application for a redetermination under subsection
70(1) may be made, or
(b) has been determined by the Board not to be a Conven
tion refugee,
the adjudicator who presides at the inquiry caused to be
resumed pursuant to subsection (1) shall make the removal
order or issue the departure notice that would have been
made or issued but for that person's claim that he was a
Convention refugee.
In the event the Board determines the applicant
not to be a Convention refugee, then the Adjudica
tor is required to proceed pursuant to subsection
46(2). In the event that the Board determines that
the applicant is a Convention refugee, subsection
47(1) 4 requires a senior immigration officer to
cause the inquiry to be resumed for the purpose of
determining whether the applicant is a person
described in subsection 4(2) of the Act 5 .
Since we have already expressed our view that
in the proceedings leading up to the deportation
order of July 31, 1980, Adjudicator Delaney made
no reviewable error, it is clear that, if subsequent
circumstances dictate proceeding under subsection
46(2), the Adjudicator would, at that juncture, be
required to make either the removal order or
departure notice contemplated by that section. If,
however, subsequent circumstances require that he
proceed under section 47, upon receipt of the
4 Section 47 of the Act reads as follows:
47. (1) Where a senior immigration officer is informed
that a person has been determined by the Minister or the
Board to be a Convention refugee, he shall cause the inquiry
concerning that person to be resumed by the adjudicator who
was presiding at the inquiry or by any other adjudicator, who
shall determine whether or not that person is a person
described in subsection 4(2).
(2) Where an adjudicator determines that a Convention
refugee is not a Convention refugee described in subsection
4(2), he shall make the removal order or issue the departure
notice, as the case may be, with respect to that Convention
refugee.
(3) Where an adjudicator determines that a Convention
refugee is a Convention refugee described in subsection 4(2),
he shall, notwithstanding any other provision of this Act or
the regulations, allow that person to remain in Canada.
5 Subsection 4(2) of the Act reads as follows:
4....
(2) Subject to any other Act of Parliament, a Canadian
citizen, a permanent resident and a Convention refugee while
lawfully in Canada have a right to remain in Canada except
where
(a) in the case of a permanent resident, it is established
that that person is a person described in subsection 27(1);
and
(b) in the case of a Convention refugee, it is established
that that person is a person described in paragraph
19(1)(c), (d), (e), (f) or (g) or 27(1)(c) or (d) or 27(2)(c)
or a person who has been convicted of an offence under
any Act of Parliament for which a term of imprisonment
of
(i) more than six months has been imposed, or
(ii) five years or more may be imposed.
necessary direction from a senior immigration offi
cer, he would have to conduct the inquiry contem
plated by section 47.
* * *
MACKAY D.J.: I concur.
* * *
KELLY D.J.: I concur.
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.