T-5381-81
Blossom Patricia Reece (Petitioner)
v.
Minister of Employment and Immigration, Guy
Bachand, in his capacity as Manager of Canadian
Immigration Service and Deputy Solicitor Gener
al of Canada (Respondents)
and
D. Lapointe in her capacity as Immigration Offi
cer (Mis -en-cause)
Trial Division, Walsh J.—Montreal, December 14;
Ottawa, December 21, 1981.
Judicial review — Prerogative writs — Mandamus, prohibi
tion — Application for permanent residence made from within
Canada — Application sponsored by petitioner's husband, a
Canadian citizen — Expiry of petitioner's visitor status —
Letter from immigration officer to petitioner that application
for permanent residence cannot be considered in Canada,
pursuant to s. 9 of Act, and that report under s. 27(2)(e) of Act
would follow as petitioner now without status — Visitor
required, under s. 9, to make application for and obtain visa
before appearing at port of entry — Petitioner seeking man-
damus ordering Minister to render decision on pending
application, and prohibition to prevent holding of inquiry
under s. 27(3) of Act until decision on application rendered —
Whether letter constitutes decision on merits of application —
Whether Act permits consideration of sponsored application
made from within Canada — Letter amounts to refusal to
consider application — Such refusal not appealable — No
requirement that application be considered when not made
from abroad — Application for mandamus dismissed —
Application for prohibition consequently dismissed — Prohi
bition not designed to prevent official from performing duty
imposed on him by statute — Immigration Act, 1976, S.C.
1976-77, c. 52, ss. 6(1), 9(1), 27(2)(e), 79(1),(2)(b), 115(2) —
Immigration Regulations, 1978, SOR/78-172, ss. 19(3)(e),
41(1),(2).
Gressman v. The Queen, Federal Court, T-5078-78, judg
ment dated January 9, 1979, applied. Haywood v. Minis
ter of Canada Employment and Immigration, Federal
Court, T-2904-78, judgment dated August 14, 1978,
applied. In re the Immigration Act and in re McCarthy
[1979] 1 F.C. 128, applied. Lawrence v. Minister of
Employment and Immigration [1980] 1 F.C. 779, applied.
Minister of Manpower and Immigration v. Tsakiris
[1977] 2 F.C. 236; 73 D.L.R. (3d) 157, referred to. Samra
v. Minister of Employment and Immigration [1981] 1
F.C. 626; (1980) 110 D.L.R. (3d) 693, referred to. Taabea
v. Refugee Status Advisory Committee [1980] 2 F.C. 316,
referred to.
APPLICATIONS.
COUNSEL:
J. Westmoreland- Traoré for petitioner.
N. Lemyre for respondents.
SOLICITORS:
J. Westmoreland- Traoré & Ass., Montreal,
for petitioner.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for judgment
rendered in English by
WALSH J.: The petitioner applies for the issue of
a writ of mandamus ordering that the Minister of
Employment and Immigration render a decision
on her pending application for permanent resi
dence and for an ancillary writ of prohibition
preventing the holding of an inquiry at any date
until the decision has been rendered on her spon
sored application for residence. In the original
petition CLAUDE GRISSE, in his capacity as Direc
tor of Enforcement, Canada Immigration Centre,
980 Guy Street, Montreal, Quebec, was named as
a respondent but it has since been determined that
GUY BACHAND, Manager of the Canadian Immi
gration Service, Jean-Talon Street in Montreal,
signed the order to convene an inquiry under sub
section 27(3) of the Immigration Act, 1976' so at
the opening of the hearing the petition was amend
ed so as to name him as a respondent in place of
CLAUDE GRISSE and the style of cause was amend
ed accordingly. A second amendment was also
made and granted to amend paragraph 4(ii) of the
conclusions of the petition so as to delete the words
"scheduled for November 10, 1981" by the words
"pursuant to the report of the senior Immigration
Officer E. Gilbert dated October 21st, 1980 at any
time" since although the date for convening the
inquiry had been postponed from November 10,
1981 to December 14, 1981, it was December 14
before the petition was heard and that date would
have expired before judgment was rendered. The
affidavit supporting petitioner's application states
that she was admitted to Canada as a visitor on
August 24, 1979, her visitor's authorization having
' S.C. 1976-77, c. 52.
been renewed on several occasions. On
September 7, 1979 she married Richard Boyd, a
Canadian citizen in Toronto and on September 11
he indicated to the Canadian Immigration authori
ties that he wished to sponsor her application for
permanent residence in Canada. One child was
born of the marriage on March 24, 1981. On or
before January 21, 1980, her husband signed an
undertaking sponsoring her application for perma
nent residence, including a daughter born to her on
April 26, 1968. She received at the same time an
authorization to seek employment. She submitted
her own written application for permanent resi
dence and passed the medical examination. The
last extension of her status expired on April 30,
1980. Her file was transferred from the Toronto
office to the Montreal office in about February
1981. In May 1980 her husband returned to his
studies at George Brown College in Toronto but
she remained with her brother in Montreal
because of his studies and her pregnancy, with her
husband visiting whenever he was able. In June
1981 she received a letter from D. Lapointe, immi
gration officer, stating that her application could
not be considered in Canada as section 9 of the
Act requires that such an application be made
from abroad and that as she was now without
status in Canada a report under paragraph
27(2)(e) would be prepared. Subsection 9(1) reads
as follows:
9. (1) Except in such cases as are prescribed, every immi
grant and visitor shall make an application for and obtain a visa
before he appears at a port of entry.
and subsection 27(2) reads:
27....
(2) Where an immigration officer or peace officer has in his
possession information indicating that a person in Canada,
other than a Canadian citizen or a permanent resident, is a
person who
(e) entered Canada as a visitor and remains therein after he
has ceased to be a visitor,
he shall forward a written report to the Deputy Minister setting
out the details of such information unless that person has been
arrested without warrant and held in detention pursuant to
section 104.
Petitioner's affidavit goes on to state that it
would impose great hardship on her if she were
forced to leave Canada and her husband and
return to Jamaica where her former residence is no
longer available and that she would have to take
her son, a natural born Canadian citizen with her
because of his age and that it would practically be
impossible for her to find employment in Jamaica
and that the expenses involved in returning to
Jamaica while awaiting a decision on her applica
tion for a visa to immigrate to Canada would be
very great. The affidavit concludes that she has
received no decision on her pending sponsored
application for permanent residence in Canada.
She seeks a mandamus on the basis that the
decision to convene an inquiry is ultra vires and
based on an error of law on the face of the record
to the effect that the Immigration Act, 1976 does
not permit the study of a sponsored application
made from within Canada. The petitioner also
alleges that she is being treated unfairly in that she
is convened to an inquiry before her application for
residence has been decided and also in an arbitrary
and discriminatory manner since her sponsored
application for permanent residence has not been
processed in a manner similar to other identical
cases of members of a family class.
Considerable argument was directed to the
question of whether the letter from Ms. Lapointe
is a decision or not since in effect what it did was
state that no further consideration could be given
to petitioner's application for permanent residence
in Canada. Reference was made to the case of
Lawrence v. Minister of Employment and
Immigration 2 . In that case the facts were some
what different in that Mrs. Lawrence was sponsor
ing the application of her husband who might well
have otherwise been inadmissible, and no separate
application had been made by the husband, the
letter stating that our legislation does not permit
the officer to consider an undertaking in isolation
from an application for admission made by the
husband, which could only be made at a visa office
abroad so that her sponsorship application could
not be considered until her husband had so
applied. Reference was made to the appeal case
before the Immigration Appeal Board of Minister
of Employment and Immigration v. Sleiman
decided on February 26, 1979, No. V78-6209
2 [1980] 1 F.C. 779.
which dealt with an appeal by Mrs. Sleiman of a
refusal by the Department by letter, as in the
present case, of her application to sponsor her
husband. The Minister contended that the Immi
gration Appeal Board did not have jurisdiction on
her appeal by virtue of subsection 79(2) of the Act
because there had been no refusal for landing of
the husband, and did not permit the consideration
of an undertaking by a sponsor in isolation from an
application for admission made in accordance with
section 9 of the Act. The Board decision agreed
that it had no jurisdiction to hear an appeal of the
sponsor on behalf of her husband. As Smith D.J.
pointed out therefore in the Lawrence case such an
appeal by Mrs. Lawrence would have been futile.
He goes on to say however at page 786:
What the applicants in the present motion want is a decision
by the Department on the admissibility of Donald Wayne
Lawrence as a permanent resident. The letter of December 21,
1979 is not a direct decision on that matter, but a refusal to
give further consideration to her sponsorship application until
he applies for permanent residence in Canada at any one of
Canada's visa offices abroad. [Emphasis mine.]
At pages 788-789 he states:
In my opinion Mrs. Lawrence is entitled to have her applica
tion to sponsor her husband's application dealt with. Once the
application of Mr. Lawrence is refused, which on the law would
be the likely decision, her sponsoring application may be
refused, on the ground that, under section 79(1)(b) he does not
meet the requirements of the Act or the Regulations. One of
the requirements of the Act is the condition that he must apply
for and obtain a visa at a visa office outside Canada.
The Department owes a duty to Mr. Lawrence to treat him
fairly. Having in mind the existence of compassionate and
humanitarian grounds which might possibly be deemed to
justify granting him landing, that duty means that the Depart
ment should make a decision on his application. Further, since
Mr. Lawrence is obligated under the departure notice issued
against him to leave Canada not later than April 1, 1980, the
decision should be made soon. In fairness it should be made
sufficiently soon that his rights of appeal and those of his
sponsor will not be thwarted in advance. There will be an order
accordingly.
While the affidavit of Ms. Lapointe indicates
that the application was studied in Canada and the
conclusion reached that it should not be recom
mended from within Canada the letter indicates
that the law does not permit an application such as
that made by petitioner to be made within
Canada, and this despite the fact that it was only
after coming to Canada that she was married in
Canada to a Canadian citizen and in due course
gave birth to a child born in Canada as a result of
this marriage. Reference was made by petitioner's
counsel to subsection 6(1) of the Act which reads
as follows:
6. (1) Subject to this Act and the regulations, any immigrant
including a Convention refugee, a member of the family class
and an independent immigrant may be granted landing if he is
able to establish to the satisfaction of an immigration officer
that he meets the selection standards established by the regula
tions for the purpose of determining whether or not an immi
grant will be able to become successfully established in Canada.
pointing out that she only became a member of the
family class after being admitted to Canada as a
visitor, and while her visitor's authorization was
still in effect and contends that it can be inferred
from the wording of the said subsection that the
said application could be made from within
Canada under the circumstances.
With reference to the applicability of subsection
9(1) of the Act petitioner stresses the significance
of the words "Except in such cases as are pre
scribed" indicating that there are cases where the
application can be made after appearing at a port
of entry. Reference was also made to subsection
115(2) of the Act which reads as follows:
115....
(2) The Governor in Council may by regulation exempt any
person from any regulation made under subsection (1) or
otherwise facilitate the admission of any person where the
Governor in Council is satisfied that the person should be
exempted from such regulation or his admission should be
facilitated for reasons of public policy or due to the existence of
compassionate or humanitarian considerations.
It is contended that there are compassionate or
humanitarian considerations in the present case
which justify a consideration of her application.
Reference was made to the very frequent orders
for exemption from the regulations appearing
regularly in the Canada Gazette. It is contended
that if, as the Lapointe affidavit indicates, an
examination has in fact been made of her applica
tion despite her letter of May 29, 1981 to the
effect that no consideration can be given to such
an application made from within Canada, which is
certainly contradictory, then any examination
which has been made has not been done fairly
because she has been given no opportunity of being
heard or correcting or explaining any errors or
misunderstandings as to her places of residence,
relationships with her husband, and so forth which
appear to have been considered during such study.
Petitioner contends that to hold a section 27 inqui
ry at this stage would have the effect of depriving
her of any right of appeal since it would be con
fined to a finding that she had entered Canada as
a visitor and has remained therein after ceasing to
be a visitor, which is of course correct and the
Sleiman case (supra) has established that there is
no appeal in such a case. The case of Jean v. The
Minister of Employment and Immigration, No.
M79-1219 dated January 16, 1981, which again,
unlike the present case was an application by the
sponsor to the Immigration Appeal Board held
that although there was a right of appeal under
subsection 79(2) from a letter somewhat similar to
that written to the petitioner in the present case
the refusal of the sponsorship application based on
the provisions of subsection 9(1) of the Act was
proper as this section is absolute and cannot be
overruled even by a valid marriage contracted in
good faith. The Board did however consider apply
ing paragraph 79(2)(b) but found that there were
no compassionate or humanitarian considerations
requiring special relief. Petitioner contends that
she has a right to have this considered but unless
the inquiry under paragraph 27(2)(e) is stopped
and a decision on the merits of her application for
permanent residence is made which she contends
would be appealable she is deprived of this right. It
should be pointed out however that section 79
appeals refer to appeals by sponsors and it must be
noted that petitioner's husband who sponsored her
application is not only not the petitioner in the
present application but is not even joined as party.
The principal issue appears to be whether the
letter of May 29, 1981, constitutes a consideration
of the application or merely a refusal to consider it
which appears to be more probable as Smith D.J.
found in the Lawrence case (supra) in connection
with a similar letter. Even the Minister himself in
his motion to the Immigration Appeal Board con
tending that it did not have jurisdiction to hear the
appeal in the Sleiman case stated on page 2 of the
decision with respect to a similar letter: "Neither
the letter to Roxanne Sleiman dated December 1,
1978, nor the letter to Mohammed Sleiman dated
December 1, 1978 is a notice of refusal of an
application for landing." However the Immigra
tion Appeal Board in the Jean case (supra) heard
some nineteen months subsequently considered
that a similar letter was apparently an appealable
decision. I find it difficult to conclude that the
letter is itself a decision, rather than a mere refusal
to consider.
Respondent further argues that subsection
115(2) of the Act (supra) refers to the Governor
in Council being able by regulation to exempt any
person from any regulation made under subsection
(1) but this does not, and of course it could not,
authorize the making of regulations exempting any
person from application of any of the sections of
the Act. Further, petitioner has made no applica
tion yet, according to counsel for respondent, for
the application of the latter part of subsection
115(2) of the Act for facilitating her admission
due to the existence of compassionate or humani
tarian considerations, which might well be appli
cable in her case.
In support of her contention that the letter
refusing to deal with the application does not
constitute a decision with respect to it, petitioner's
counsel refers by analogy to various sections of the
Act. Subsection 79(1) respecting appeals by spon
sors requires that "the person who sponsored the
application shall be informed of the reasons for the
refusal". This merely requires that when an appeal
by a sponsor is made and refused, reasons must be
given for such refusal, while in the present case we
are dealing with a refusal to provide an initial
hearing to an applicant applying from within
Canada. Subsections 41(1) and (2) of the Immi
gration Regulations, 1978, SOR/78-172, provide
that when an immigration officer refuses to
approve an application for landing that has been
made by a member of the family class and has
been sponsored he shall make a summary of the
information on which his reason for his refusal is
based and shall inform the sponsor in writing that
if he is a Canadian citizen he has a right of appeal
to the Board pursuant to subsection 79(2) of the
Act. It should be pointed out however that this
Regulation deals with procedure when sponsored
applications have been considered and refused and
confers no right to a hearing of such sponsored
applications, which respondent contends can only
take place if the application for permanent resi
dence has been made from abroad. Petitioner fur
ther contends that by analogy the letter refusing to
consider the application cannot be considered as
being a decision since a decision must be motivated
in order to enable a fair appeal to be made (see in
a different context Taabea v. Refugee Status
Advisory Committee 3 ). Petitioner further points
out that the letter of May 29, 1981, merely states
that a report under paragraph 27(2)(e) has been
prepared and that it is on the basis of this that the
dates of the inquiry were set. It should be noted
however that the letter does state "As you are
presently without status in Canada", thereby stat
ing the reason for the report, and the letter further
declares the reason for not considering the applica
tion for admission by stating that it had to be
made at one of the offices abroad.
Petitioner contends that there is no justification
for such a report since by application of Regula
tion 19(3)(e) she was given an employment
authorization, being a person who had made an
application for landing that had not been disposed
of. The fact of being given a temporary work
permit would not appear to establish any right to
landed immigrant status as same could be can
celled when the pending application was disposed
of, nor does it add any support to the argument
that the application was not disposed of by the
letter of May 29, 1981. In short although I have
found that the letter does not constitute a finding
on the merits of the application constituting an
appealable decision, I do find that there is no
requirement that such an application must be con
sidered when not made from abroad.
While it does appear unfair that after having
had her visitor's permit extended from time to
time for a period of over a year and a half, and
3 [1980] 2 F.C. 316.
being given a work permit to work in the mean
while it was then very belatedly decided that her
application for landed immigrant status made
from within Canada cannot be considered, the
Court however must not give any consideration to
this but must confine itself to deciding whether in
fact the decision was ever properly made in
accordance with the provisions of the law and
regulations.
The application for mandamus must therefore
be dismissed. The fact that petitioner cannot
appeal and seek a finding by the Immigration
Appeal Board pursuant to paragraph 79(2)(b) on
compassionate or humanitarian considerations that
warrant the granting of special leave does not
appear to me to interfere with the right of the
Governor in Council pursuant to subsection 115(2)
(supra) to facilitate her admission due to the
existence of compassionate or humanitarian con
siderations if such an application is made. As the
issue is not before me I make no finding as to the
proper interpretation of subsection 115(2).
Respondent's counsel argues that the Governor in
Council may by regulation exempt any person
from any regulation made under subsection (1)
but that this cannot exempt any person from com
plying with the provisions of the Act. The second
portion of said subsection (2) refers to "otherwise"
facilitating the admission, and as petitioner's coun
sel points out exemptions appear to be made with
considerable frequency.
The second prayer of petitioner seeks the issue
of a writ of prohibition preventing the convening of
the inquiry until a decision has been rendered on
petitioner's sponsored application for residence,
but since the application for mandamus has been
rejected I find that the writ of prohibition cannot
be granted. In any event in the case of Minister of
Manpower and Immigration v. Tsakiris 4 Pratte J.
in referring to sections of the old Act and Regula
tions, which in this area do not differ substantially
from the present Act stated at page 238 [Federal
Court Reports]:
Once a section 22 report has been made in respect of a
person seeking (or deemed to be seeking) admission to Canada,
section 23(2) provides that the Special Inquiry Officer, unless
he decides to admit that person, must hold "an immediate
inquiry". I cannot find anything in the statute from which it
[1977] 2 F.C. 236; 73 D.L.R. (3d) 157.
could be inferred that the making of a sponsorship application
under section 31(1)(h) of the Regulations relieves the Special
Inquiry Officer from that statutory duty or deprives him of his
power to hold the inquiry. The result would be the same if the
decision to hold the inquiry had been made under section 25
pursuant to a section 18 report. I consider it to be obvious that
the making of an application by a sponsor does not have the
effect either of depriving the Director of his power to order an
inquiry under section 25 or of relieving the Special Inquiry
Officer from his duty to hold such an inquiry once it is ordered.
While this is sufficient to dispose of this appeal, I cannot
refrain from observing, before concluding, that counsel for the
respondents did not seem to fully understand the real nature of
prohibition. Prohibition lies to prevent an inferior tribunal from
exceeding its jurisdiction; it must not, therefore, be mistaken
for an injunction or a mere stay of proceedings.
See also the case of Gressman v. The Queen, No.
T-5078-78, a judgment of Smith D.J. dated Janu-
ary 9, 1979 in which at pages 4-5 he states:
Prohibition is a remedy by which a superior court prevents an
inferior tribunal, board or commission from taking some action
which it has no power to take, in other words doing something
in excess of its jurisdiction. It is not designed nor is it proper to
use it to prevent an inferior body or official from performing, in
a normal way, a duty imposed upon him by statute, which is the
situation in the present case.
A similar finding was made by my brother
Marceau J. in the case of Haywood v. Minister of
Canada Employment and Immigration*, No.
T-2904-78, judgment dated August 14, 1978,
stating:
The sponsorship request made by the applicant's wife on the
22nd day of June 1978 cannot have, nor be given by an order of
this Court, the effect of relieving the mis -en-cause from his
statutory duty to hold the special inquiry opened on June 4,
1978.
In the case of Samra v. Minister of Employment
and Immigrations where a writ of prohibition was
sought to stop the continuation of an inquiry pur
suant to paragraph 27(2)(e) of the Act pending
the outcome of an appeal to the Immigration
Appeal Board by the sponsor of petitioner refer
ence was made at page 630 [Federal Court
Reports] to the case In re the Immigration Act
and in re McCarthy [ 1979] 1 F.C. 128 where at
page 130 Cattanach J. held that an inquiry under
* [Reasons for judgment not distributed—Ed.]
5 [1981] 1 F.C. 626; (1980) 110 D.L.R. (3d) 693.
the Act was administrative and not judicial or
quasi-judicial, and accordingly, a prerogative writ
such as prohibition will not issue to preclude
administrative or discretionary powers. Following
this and other jurisprudence referred to the writ of
prohibition sought in the Samra case was refused.
The application for a writ of prohibition must
therefore also be dismissed.
ORDER
Petitioner's applications for a writ of mandamus
and for a writ of prohibition are dismissed with
costs if demanded.
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.