Gana v. Minister of Manpower and Immigration, [1970] SCR 699

Supreme Court of Canada

Gana v. Minister of Manpower and Immigration, [1970] S.C.R. 699

Date: 1970-04-28

Koula Gana Appellant;

and

The Minister of Manpower and Immigration Respondent.

1970: March 17; 1970: April 28.

Present: Fauteux, Abbott, Martland, Spence and Pigeon JJ.

ON APPEAL FROM THE IMMIGRATION APPEAL BOARD

Immigration—Appellant admitted to Canada as non-immigrant visitor—Application for permanent residence refused by immigration officer—Decision confirmed by Special Inquiry Officer—Appeal to Immigration Appeal Board dismissed—Jurisdiction to review assessment of applicant—Immigration Act, R.S.C. 1952, c. 325—Immigration Appeal Board Act, 1966-67 (Can.), c. 90.

The appellant arrived in Canada on January 20, 1968, as a non-immigrant visitor, being permitted to remain in Canada for a period of two months. Within that period she made application for permanent residence in Canada. In her application she gave her intended occupation as “dressmaker & frame fitter on suit cases”. Her application was refused by an immigration officer, who later made a report to a Special Inquiry Officer. After the report was received, the Special Inquiry Officer notified the appellant that she was required to appear for an examination in relation to the points that had been assigned to her by the immigration officer. Following the examination, the Special Inquiry Officer rendered his decision in which he confirmed the decision of the immigration officer and ordered that the appellant be detained for deportation. An appeal from the decision of the Special Inquiry Officer was dismissed by the Immigration Appeal Board. A right of reassessment was refused to the appellant (who proposed to change her intended employment to that of housekeeper) in both places.

Subsequently, this Court gave leave to appeal on two points: (i) Did the Immigration Appeal Board err in holding that neither the Board nor the Special Inquiry Officer had jurisdiction to consider and vary the units allowed to the applicant by the immigration officer under the provisions of regulation 34 of the Immigration Regulations? (ii) Did the Immigration Appeal Board err in holding that the Special Inquiry Officer was correct in ordering the deportation of

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the applicant on the ground that she was not in possession of a medical certificate in the form prescribed by the Minister although the applicant had not been permitted to obtain such medical certificate upon her applying to the Special Inquiry Officer for the right to do so?

With respect to the second question, counsel for the Minister conceded, on appeal, that under the relevant regulations, as amended on August 16, 1967, the applicant’s lack of a medical certificate in the form prescribed by the Minister was not a valid ground for the deportation order in question.

Held: The appeal should be allowed and the matter returned to the Immigration Appeal Board so that it could exercise its jurisdiction to consider and, if it deemed proper, vary the number of units allowed to the appellant.

Section 11 of the Immigration Appeal Board Act provides that a person against whom an order of deportation has been made under the provisions of the Immigration Act may appeal to the Board on any ground of appeal that involves a question of law or fact or mixed law and fact, and s. 14(c) provides that the Board may dispose of an appeal under s. 11 or s. 12 by rendering the decision and making the order that the Special Inquiry Officer who presided at the hearing should have rendered and made. The Immigration Appeal Board, therefore, had the right to make whatever order the Special Inquiry Officer could make and the Special Inquiry Officer, by virtue of s. 11(2) of the Immigration Act, had authority to inquire into and determine whether any person shall be allowed to come into Canada and remain in Canada or be deported. The determination of whether any person should be allowed to remain in Canada or be deported involved a determination of whether that person was a member of any of the prohibited classes set out in s. 5 of the Immigration Act, and para. (t) of the said s. 5 defined one of these classes as being persons who cannot or do not fulfil or comply with any of the conditions or requirements of the Act or regulations. One of the requirements of the regulations was that a person should, in the opinion of the immigration officer, be entitled to be awarded 50 units upon examination in accordance with Schedule A to the regulations. This was, therefore, a matter within the consideration of the Special Inquiry Officer.

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The contention that the review was prohibited by the opening words of regulation 34(3) (f), “in the opinion of an immigration officer”, failed. Calgary Power Ltd. et al. v. Copithorne, [1959] S.C.R. 24, distinguished; Swain et al. v. Denison et al., [1967] S.C.R. 7, applied.

APPEAL from a decision of the Immigration Appeal Board, dismissing an appeal from a decision of a Special Inquiry Officer, in which latter decision it was ordered that the appelant be detained for deportation. Appeal allowed.

Bernard Reis, for the appellant.

C.R. O. Munro, Q.C., for the respondent.

The judgment of Fauteux, Martland, Spence and Pigeon JJ. was delivered by

SPENCE J.—This is an appeal by the applicant for permanent admission to Canada from a decision of the Immigration Appeal Board pronounced on August 7, 1968. By that decision the Board dismissed an appeal from the decision of a Special Inquiry Officer made on July 20, 1968. The Special Inquiry Officer in such latter decision ordered that the applicant be detained for deportation.

Miss Koula Gana, a native of Greece, arrived in Canada on January 20, 1968, as a non‑immigrant visitor in accordance with the provisions of s. 7 (1) (c) of the Immigration Act, R.S.C. 1952, c. 325, being permitted to remain in Canada for a period which was to expire on March 19, 1968. On February 28, 1968, she attended the immigration office in Montreal and completed an application for permanent residence in Canada. In that application, which appears in the material filed on this appeal, the applicant gave her intended occupation in Canada as “dressmaker & frame fitter on suit cases”. The latter had been the applicant’s occupation during a stay of eight years in Australia.

The applicant did not carry on any work in Canada between the time of her arrival until after May 29, 1968, when she had official permission from the Special Inquiry Officer.

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Miss Gana’s application for permanent residence was considered by one R.A. Lavallée, an immigration officer in Montreal. Miss Gana testified before the Special Inquiry Officer that she was asked to present herself to the immigration office on February 28, 1968, “and then I was told that my application was refused because I did not have the qualifications required and I didn’t get the required points …”.

The immigration officer, in his report to the Special Inquiry Officer under date April 2, 1968, said in part:

2. Pursuant to section 23 of the Immigration Act, I have to report that I have examined Koula Gana and in my opinion she is not a Canadian citizen or a person who has acquired Canadian domicile.

In para. 3, the immigration officer sets out his opinion as to the applicant’s count of units under Schedule A of the Immigration Regulations which shall be dealt with hereafter.

It was submitted before this Court by counsel appearing for the Minister that the immigration officer had carried out a hearing before coming to his conclusion embodied in the said report dated April 2, 1968. It would appear from Miss Gana’s uncontradicted testimony that her counsel’s submission that all that had taken place was the mere perusal of the application and the assessing of a unit count based on such perusal would probably be more accurate. At any rate, upon whatever hearing took place Miss Gana was not represented by counsel.

After receipt of the report of the immigration officer, a Special Inquiry Officer wrote to Miss Gana his letter of May 15, 1968, in which he recited the report of the immigration officer and continued:

According to the Immigration Act, it is now required that you appear before a Special Inquiry Officer who will examine you in relation to these points. The date and time set for the Inquiry to be held is Wednesday May 29th 1968 at 9:30 a.m. in Room 1031, National Revenue Building, 305 Dorchester Blvd. West, Montreal 1, Que.

Miss Gana appeared before the Special Inquiry Officer as required by the notice and was there

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represented by counsel and her evidence was translated by an interpreter. The Special Inquiry Officer rendered his decision on the same day:

(1) you are not a Canadian citizen;

(2) you are not a person having Canadian domicile, and that;

(3) you are a member of the prohibited class described under paragraph (t) of section 5 of the Immigration Act in that you do not fulfil or comply with the conditions and requirements of the Immigration Regulations by reason of:

(a) you are not in possession of a valid and subsisting immigrant visa as required by subsection (1) of Section 28 of the Immigration Regulations Part I;

(b) you are not in possession of a medical certificate in the form prescribed by the Minister as required by subsection (1) of Section 29 of the Immigration Regulations, Part I, of the Immigration Act;

(c) in the opinion of the Immigration officer you would not have been admitted to Canada for permanent residence if you had been examined outside of Canada as an independent applicant and assessed in accordance with the norms set out in Schedule “A” except with respect to arranged employment as required by paragraph (f) of subsection (3) of Section 34 of the Immigration Regulations, Part I.

I hereby order you to be detained and to be deported.

From that decision, Miss Gana appealed to the Immigration Appeal Board and the Immigration Appeal Board considered such appeal and in its decision dismissed the appeal. An application for leave to appeal from the decision of the Immigration Appeal Board was made to this Court which by its order of October 24, 1968, gave leave to appeal on the following questions:

1. Did the Immigration Appeal Board err in holding that neither that board nor the Special Inquiry Officer, from whose decision an appeal came to the said board, had jurisdiction to consider and vary the units allowed to the applicant by the Immigration Officer under the provisions of regulation 34 of the Immigration Regulations, being SOR/62-36 and particularly Schedule A to the said Regulations?

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2. Did the Immigration Appeal Board err in holding that the Special Inquiry Officer was correct in ordering the deportation of the applicant on the ground that she was not in possession of a medical certificate in the form prescribed by the Minister although the applicant had not been permitted to obtain such medical certificate upon her applying to the Special Inquiry Officer for the right to do so?

Counsel for the Minister now, in his factum, concedes that the Regulations under the Immigration Act were amended on August 16, 1967, so that when a person has been allowed to enter and remain in Canada as a non-immigrant and applies, pursuant to s. 7(3) of the Immigration Act, for permanent residence in Canada before the expiration of the authorized period of temporary stay in Canada then lack of a medical certificate in the form prescribed by the Minister is not ground for deportation if that person applied to an immigration officer for but was not given the opportunity to obtain such certificate. The second ground of appeal need not be considered in these reasons.

I turn, therefore, to the first question of law upon which leave was granted. In opening his submission to this Court, counsel for the Minister asked that the question be considered on the submission in his factum:

21. In any event, it is submitted that neither a Special Inquiry Officer conducting an inquiry under the Immigration Act, nor the Immigration Appeal Board, may review the assessment of an applicant for permanent residence.

Counsel for the Minister gives as his basis for such admission that the procedure whereby the sole assessment of the units to be allowed to an applicant for permanent residence can only be made by an immigration officer and that such a procedure is fundamental to the whole of the immigration legislation. Someone must determine which applicants for permanent residence in Canada are likely to establish themselves in Canada, counsel submits, and that authority has been given to the Minister and those acting under his direction. Counsel cites Masella v. Langlais[1], where Abbott J. said at p. 281:

Immigration to Canada by persons other than Canadian citizens or those having a Canadian domi-

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cile is a privilege determined by statute, regulation or otherwise, and is not a matter of right.

With that statement, I agree, but I point out that the privilege is one determined by statute and regulation and it is necessary to examine the statute, that is, the Immigration Act, R.S.C. 1952, c. 325, and the regulations, and also the Immigration Appeal Board Act, 1966-67 (Can.), c. 90, with some particularity in order to determine the jurisdiction of both the Special Inquiry Officer and the Immigration Appeal Board in reference to the counting of units assessed to an applicant under Schedule A of the Regulations.

The Immigration Act, in s. 5, provides that no person other than a person referred to in subs. (2) of s. 7, (not here applicable) shall be admitted to Canada if he was a member of any of the classes set out thereafter in lettered paragraphs running from (a) to (t). Paragraph (t) reads as follows:

(t) persons who cannot or do not fulfil or comply with any of the conditions or requirements of this Act or the regulations or any orders lawfully made or given under this Act or the regulations.

Section 20 of the Immigration Act provides for examination of persons seeking to come into Canada by an immigration officer at a port of entry. In the present case, Miss Gana was examined at the port of entry and was allowed to enter Canada as a non-immigrant visitor under the provisions of s. 7 of the Immigration Act, but when she later made application for permanent residence her application was then considered by the immigration officer under the provisions of the said s. 20 of the Immigration Act. Subsection (3) of that section provides:

(3) Unless the examining immigration officer is of opinion that it would or may be contrary to a provision of this Act or the regulations to grant admission to or otherwise let a person examined by him come into Canada, he shall, after such examination, immediately grant admission to or let such person come into Canada.

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Should the immigration officer be of the opinion that it would be contrary to the provisions of the Immigration Act or regulations to grant admission to such person then by the provisions of s. 23 he is directed to report to a Special Inquiry Officer. Being of such opinion, the immigration officer in the present case made the report to the Special Inquiry Officer under date April 2, 1968. Section 24 of the Immigration Act provides that the Special Inquiry Officer upon receipt of such a report “shall have such further examination as he may deem necessary and subject to any regulations made in that behalf, admit such person or let him come into Canada or make a deportation order against such person…”.

Section 11 of the Immigration Act in para. (2) provides that a Special Inquiry Officer has authority to inquire into and determine whether any person shall be allowed to come into Canada or remain in Canada or shall be deported.

The Immigration Regulations with which we are concerned are Immigration Regulations, Part I, being P.C. 1962-86 published in the Canada Gazette as S.O.R./62-36 as amended. Section 34 of those regulations deals with the examination of persons who have been allowed to enter Canada as visitors and then seek admission for permanent residence and s. 34(3) of those regulations provides:

(3) Notwithstanding section 28, an applicant in Canada who

* * *

(b) is not in possession of an immigrant visa or letter of pre-examination but, in the opinion of an immigration officer, would on application be issued a visa or letter of pre-examination if outside Canada;

may be admitted to Canada for permanent residence if

* * *

(f) in the opinion of an immigration officer, he would have been admitted to Canada for permanent residence if he had been examined outside Canada as an independent applicant and assessed in accordance with the norms set out in Schedule A, except with respect to arranged employment.

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(I quote the regulation in effect at the time of the examination of Miss Gana by the immigration officer). The immigration officer upon such examination, whether it was after a hearing or merely by perusal of the application form, proceeded to assign to Miss Gana units as follows:

(i)	education and training..............................................................	6 units
(ii)	personal assessment...............................................................	10 units
(iii)	occupational demand...............................................................	4 units
(iv)	occupational skill.......................................................................	3 units
(v)	age.............................................................................................	10 units
(vi)	knowledge of English and French.................................................................................................... h and French	2 units
(vii)	relative........................................................................................	0 units
(viii)	employment opportunities in the area of destination............	2 units
	TOTAL............................................................................	37 units

Paragraph 3 of Schedule “A” provided that in order to be assessed as likely to establish himself successfully in Canada an independent applicant outside Canada must achieve at least 50 units of assessment. Therefore, the immigration officer being of the opinion that Miss Gana had only achieved 37 units reported that she would not have been admitted to Canada for permanent residence if she had been examined outside Canada as an independent applicant and assessed in accordance with the norms set out in Schedule “A” except with regard to arranged employment.

Miss Gana appeared in the Immigration Office in Montreal on March 15, 1968, subsequent to the decision by the immigration officer and stated she wished to file a new application form for permanent admission upon a different basis. She was then accompanied by Mrs. Israel who was ready to offer to Miss Gana employment as a housekeeper. Miss Gana did not complete a new application form and testified that the reason for this was that she was informed she would receive the result of her interview by mail. What she received was the notice of hearing by the Special Inquiry Officer. It was the contention of counsel for Miss Gana both before the Special Inquiry Officer and the Immigration Appeal Board that if there could be a review of the units which the

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immigration officer had assigned to Miss Gana on the basis of her intended occupation as a dressmaker and fitter of frames for suit-cases to reflect her proposed employment as housekeeper then it was highly possible that the number of units which would be assessed to her would be increased to equal or exceed the required 50. For the reasons which I have outlined above, this right of reassessment was refused to Miss Gana in both places.

The jurisdiction of the Immigration Appeal Board is set out in the Immigration Appeal Board Act, 1966-67 (Can.), c. 90, in ss. 11 and 14. Section 11 provides that a person against whom an order of deportation has been made under the provisions of the Immigration Act may appeal to the Board on any ground of appeal that involves a question of law or fact or mixed law and fact, and s. 14(c) provides that the Board may dispose of an appeal under s. 11 or s. 12 by rendering the decision and making the order that the Special Inquiry Officer who presided at the hearing should have rendered and made. The Immigration Appeal Board, therefore, had the right to make whatever order the Special Inquiry Officer could make and as I have pointed out, the Special Inquiry Officer, by virtue of s. 11(2) of the Immigration Act, had authority to inquire into and determine whether any person shall be allowed to come into Canada or remain in Canada or be deported. The determination of whether any person should be allowed to remain in Canada or be deported involves a determination of whether that person was a member of any of the prohibited classes set out in s. 5 of the Immigration Act and, as I have pointed out, para. (t) of the said s. 5 defined one of these classes as being persons who cannot or do not fulfil or comply with any of the conditions or requirements of the Act or regulations. One of the requirements of the regulations was that a person should, in the opinion of the immigration officer, be entitled to be awarded 50 units upon an examination in accordance with Schedule “A” to the regulations. This was, therefore, a matter within the consideration of the Special Inquiry Officer. I cannot understand how the question of whether or not a person should have been allowed 37 units or 50 units or a larger number of units was not as subject to review by a Special

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Inquiry Officer as the question of whether the applicant fulfilled any other of the conditions or requirements of the Act or regulations. Section 5(h), (o) and (p) make specific reference to the Special Inquiry Officer forming his own opinion and imply a power and a duty to review the opinion of the immigration officer.

It is said, on behalf of the Minister, that the review is prohibited by the opening words of regulation 34(3) (f), “in the opinion of an immigration officer”. I am not of the opinion that those words in the regulation preclude a review of that opinion by virtue of a statutory duty put on the Special Inquiry Officer by the various sections of the Immigration Act. In my opinion, the words simply mean that the immigration officer is to carry out an assessing duty not that his opinion becomes final and conclusive protected from any review. Counsel for the Minister cites Calgary Power Ltd. et al. v. Copithorne[2] for the proposition that the decision of the immigration officer was not subject to review but in that case the decision of the Minister of the Crown was held to be an administrative decision and by statute the Minister was given the sole authority to decide with no provision for appeal. The present situation is very different. The statutory duty of the Special Inquiry Officer implies a right to review in an appelate manner the decision of the immigration officer and the duty of such review is given expressly to the Immigration Appeal Board in the provisions which I have cited.

A more applicable decision as to the right to review decisions which would appear to have been given in the exercise of discretion is Swain et al. v. Dennison et al[3]. There, this Court was concerned with the provisions of an order made by a trial judge under the provisions of the Testator’s Family Maintenance Act of the province of British Columbia which, by s. 3 provided that the judge before whom the application had been made might “order such provision as the Court thinks adequate, just and equitable in the

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circumstances”. The statute also provided for an appeal to the Court of Appeal. Martland J., in giving the judgment of this Court, said at pp. 12-13:

In my opinion, in view of the special nature of the provisions of the Act in question and the specific right of appeal which it confers, it is not proper to impose any fetters on the powers of the Court of Appeal in considering appeals under this Act. The entire jurisdiction of the trial judge under this statute is discretionary in character. The relief which may be granted under it is completely dependent on his opinion, first, as to whether adequate provision for proper maintenance and support has been provided for the spouse and children under the will, and second, if adequate provision is not thought to be made, as to what provision should be made. Notwithstanding this, the Act, by s. 14, gives to any party deeming himself to be prejudicially affected, a right to appeal. I construe s. 14 as meaning that any person who considers himself prejudicially affected by the discretion exercised by the trial judge has a right to appeal, and, in consequence, the Act must contemplate a review of that discretion by the Court of Appeal. This being so, that Court has the power and the duty to review the circumstances and reach its own conclusion as to the discretion properly to be exercised.

Applying that decision, the existence of the jurisdiction of the Special Inquiry Officer and the Immigration Appeal Board leads me to conclude that the whole of the decision of the immigration officer is subject to review and revision despite the use of the opening words of s. 34(3) of the regulations. Moreover, it should be noted that s. 11(1) of the Immigration Act provides:

11. (1) Immigration officers in charge are Special Inquiry Officers and the Minister may nominate such other immigration officers as he deems necessary to act as Special Inquiry Officers.

and therefore the Special Inquiry Officer is himself an immigration officer and as such may form his own opinion as an immigration officer under s. 34(3)(f) of the Immigration Regulations whether the applicant would have been admitted ‘ to Canada for permanent residence if he had been examined outside Canada.

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For these reasons, I would answer the first question upon which leave to appeal was granted that the Immigration Appeal Board did err in holding that neither the Board nor the Special Inquiry Officer had jurisdiction to consider and, if necessary, vary the units allowed by the immigration officer and that the Immigration Appeal Board had the power to do whatever the Special Inquiry Officer could and should do. I would, therefore, allow the appeal and direct that the matter be returned to the Immigration Appeal Board so that it could exercise its jurisdiction to consider and, if the Board deemed it proper, vary the number of units allowed to Miss Gana. In accordance with the provisions of s. 23(3) of the Immigration Appeal Board Act, I would make no order as to costs.

ABBOTT J.—The relevant facts, which are not disputed, are set out in the reasons of my brother Spence. For the reasons he has given, I agree that the Immigration Appeal Board erred in law when it held that the decision of an immigration officer refusing to admit appellant to Canada as a landed immigrant, was not subject to review and revision by a Special Inquiry Officer and by the Board. I wish to add only a few brief comments.

The scheme of the Immigration Act is relatively simple. The only persons entitled to enter Canada as of right are Canadian citizens and persons having a Canadian domicile. All others must obtain permission to enter from the Minister of Manpower and Immigration acting, of course, through his departmental officials.

Those coming for a temporary stay are given permission to do so for a limited period as a visitor, a student, a tourist or for some other purpose.

Would-be immigrants however are subject to examination as to their suitability on medical grounds, educational qualifications and the like and, if found satisfactory by the examining

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officer at the port of entry, are granted permission to enter and to remain in Canada as landed immigrants.

The decision, to grant or refuse such status in accordance with the Act and the regulations, is made in the discretion of the immigration officer at the port of entry, and is an administrative decision. It is not subject to review judicial or otherwise by anyone other than the Minister. In many cases, would-be immigrants are examined abroad as to their suitability and, if found to be acceptable, are granted a visa authorizing them to enter Canada as landed immigrants. If permission is refused that is the end of the matter.

Once a person is in Canada, having been granted the status of a landed immigrant, he can only be deprived of that status and ordered to be deported after a hearing before an officer of the Department described in the Act as a Special Inquiry Officer. If deportation is ordered, that order is subject to an appeal to the Immigration Appeal Board.

Prior to 1967, would-be immigrants who applied outside Canada or at border points, and those already in Canada on a temporary basis, were treated on the same basis. But, as a result of amendments to the Immigration Regulations made in 1967, a person who has been allowed to enter Canada as a visitor or on some other temporary basis may now apply to an immigration officer in Canada before the authorized period of his stay has expired, for admission to Canada as a landed immigrant. Such an application was made by appellant and was refused. That decision was confirmed by a Special Inquiry Officer and by the Immigration Appeal Board, in both cases after a hearing at which evidence was taken and appellant represented by counsel. Counsel for the Minister submitted that neither a Special Inquiry Officer nor the Immigration Appeal Board may review the assessment of an applicant for permanent residence but, for the reasons given by my brother Spence, that submission cannot be upheld.

Offhand it is difficult to see why those who enter Canada ostensibly as non-immigrants should be given a special position in relation to

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permanent admission as residents, but that is a matter for determination by Parliament or the Governor in Council not the judiciary.

The Immigration Appeal Board had before it all the material necessary to enable it to consider, and if necessary to vary, the decision refusing appellant entry to Canada as a landed immigrant. In holding, as it appears to have done, that it had no jurisdiction to do so, it erred in law.

I would dispose of the appeal as proposed by my brother Spence.

Appeal allowed.

Solicitors for the appellant: Chait, Aronovitch, Salomon, Gelber, Reis & Bronstein, Montreal.

Solicitor for the respondent: D.S. Maxwell, Ottawa.