Ramawad v. Minister of Manpower and Immigration, [1978] 2 SCR 375

Supreme Court of Canada

Ramawad v. Minister of Manpower and Immigration, [1978] 2 S.C.R. 375

Date: 1977-11-23

Ramnarine Ramawad Appellant;

and

The Minister of Manpower and Immigration Respondent.

1977: October 24; 1977: November 23.

Present: Laskin C.J. and Martland, Ritchie, Spence, Pigeon, Dickson, Beetz and Pratte JJ.

ON APPEAL FROM THE FEDERAL COURT OF APPEAL

Immigration—Non-immigrant—Violation of condition of employment visa—Refusal of employment visa—Deportation order—Special circumstances—Determination of special circumstances ultra vires of Special Inquiry Officer—Delegation of power—Vitiation of deportation order—Immigration Act, R.S.C. 1970, c. I-2, ss. 7(3), 22, 67—Immigration Regulations, paras. 3D(2)(b), 3G(d).

Appellant entered Canada as a non-immigrant under s. 7(1)(h) of the Immigration Act and was granted an employment visa. Upon being informed that he had to leave the country because his visa had ceased to be valid when he had breached one of its conditions, appellant applied for a new employment visa and was considered to be seeking entry into Canada under s. 7(3) of the Act. Appellant was examined under s. 22 and reported to a Special Inquiry Officer who held an inquiry under s. 23(2). The Special Inquiry Officer determined that appellant could not be issued an employment visa because of para. 3D(2)(b) of the Regulations which prohibits the issue of a visa to an applicant who “has violated the conditions of any employment visa issued to him within the preceding two years”. Appellant invoked para. 3G(d) of the Regulations which permits the Minister to waive this prohibition “because of the existence of special circumstances”. The Special Inquiry Officer ruled that no special circumstances existed that could justify a waiver of the prohibition and reached the decision that appellant could not be allowed to stay in Canada. A deportation order was immediately issued. Appellant made application under s. 28 of the Federal Court Act to have that order reviewed and set aside. The application was dismissed without reasons.

Held: The appeal should be allowed.

The authority of the Minister under para. 3G(d) of the Regulations to rule as to the existence of special circumstances that would justify waiving the prohibition contained in para. 3D(2)(b) could not be exercised by

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the Special Inquiry Officer pursuant to an implied delegation of authority from the Minister The decision of the Special Inquiry Officer that no such special circumstances existed was therefore invalid. The invalidity of that decision vitiated the deportation order.

R. v. Harrison, [1977] 1 S.C.R. 238, referred to.

APPEAL from a judgment of the Federal Court of Appeal dismissing without reasons an application, under s. 28 of the Federal Court Act, to review and set aside a deportation order. Appeal allowed.

J. Lockyer, for the appellant.

G.W. Ainslie, Q.C., and D.I. Glen, for the respondent.

The judgment of the Court was delivered by

PRATTE J.—This is an appeal from a unanimous judgment of the Federal Court of Appeal dismissing an application made by the appellant under s. 28 of the Federal Court Act to have reviewed and set aside a deportation order made against the appellant by Special Inquiry Officer, A. Nebesio, on October 8, 1975.

The facts which resulted in the issue of the deportation order are not in dispute; they are essentially as follows:

On July 27, 1974, the appellant entered Canada as a non-immigrant under s. 7(1)(h) of the Immigration Act and was then granted an employment visa which authorized him to work as a jeweller for Jolyn Jewellery Products, of Downsview, Ontario, for a period to terminate on July 26, 1975, subject, however, to the conditions therein set out. One of the conditions which was printed on the reverse side of the visa provided that further authorization had to be obtained from an immigration officer “in order to alter the conditions of employment or otherwise alter the legal status set out in this form”.

In August 1974, as authorized by his visa, the appellant began work for Jolyn Jewellery Products. On or about March 6, 1975, the appellant asked his employer for a pay raise and he was promptly dismissed without notice. On or about

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March 7, 1975, the appellant took employment as a jeweller with another jewellery company, i.e. Charles Jewellers Company of Toronto, without however obtaining the authorization of an immigration officer as required by one of the conditions of his visa.

The immigration authorities were apprised of this change in the “conditions of employment” of the appellant on July 15, 1975, when he applied for an extension of his visa which he thought to be valid until July 26, 1975. The appellant was then told that his employment visa had ceased to be valid upon his starting employment with Charles Jewellers Company without the authorization of an immigration officer and that he had to leave the country. The appellant immediately terminated his employment with Charles Jewellers Company and apparently applied to the immigration officer for a new employment visa; he was considered to be seeking entry into Canada under the deeming provisions of s. 7(3) of the Immigration Act, as a result of which the appellant was examined by an immigration officer under s. 22 of the said Act; the officer, being of the opinion that it would be contrary to the provisions of the Act and the Regulations to grant the appellant admission to Canada, reported him to a Special Inquiry Officer.

The Special Inquiry Officer held an inquiry under s. 23(2) of the Act. At the conclusion of the hearing on October 8, 1975, the Special Inquiry Officer determined that the appellant could not be allowed to stay in Canada; in the course of his decision, he stated that the appellant could not be issued an employment visa because he had violated within the previous two years one of the conditions of the visa issued to him on July 27, 1974, when he had changed employer without the authorization of an immigration officer. Reference should be made here to para. 3D(2)(b) of the Immigration Regulations, Part 1, which reads as follows:

“Where an issuing officer receives an application for an employment visa, he shall issue the employment visa unless

(a)…

(b) the applicant has violated the conditions of any employment visa issued to him within the preceding two years.”

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The Special Inquiry Officer concluded his decision as follows:

“Mr. Ramawad, after considering all the evidence before me, as well as the evidence given by yourself at this inquiry, my decision is as follows:

Mr. Ramnarine Ramawad, on the basis of the evidence adduced at the inquiry held at the Canada Immigration Centre, 8th floor, 480 University Avenue, on August 28, 2 and 8 of October 1975, I have reached the decision that you may not come into or remain in Canada as of right in that:

(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 in paragraph 5(t) of the Immigration Act in that you cannot or do not fulfil or comply with the conditions or requirements of the Immigration Act or the Regulations by reason of:

(d) you are seeking entry to Canada as a non-immigrant for the purposes of engaging in employment and are not in possession of a valid employment visa as required by paragraph 3C(1)(a) of the Immigration Regulations, Part 1, amended.

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

A deportation order was immediately issued on October 8, 1975 and on October 9, an application was made by the appellant under s. 28 of the Federal Court Act to have such order reviewed and set aside. As previously mentioned, this application was dismissed by unanimous judgment rendered on November 23, 1975; no reasons were delivered in support of the Court’s decision. Leave to appeal was granted by order of this Court dated February 5, 1976.

The only question at issue in this appeal is as to the validity of the deportation order that was issued against the appellant in the circumstances described above.

It is the appellant’s submission that said order is invalid and should be set aside, more particularly on three grounds that can be summarized as follows:

(a) The Special Inquiry Officer acted illegally and without authority when, in the purported exercise of the Minister’s authority, he allegedly

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decided that the prohibition against the issue of an employment visa as contained in para. 3D(2)(b) of the Regulations could not be waived as regards the appellant because there did not, in his view, exist the “special circumstances” that were envisaged in para. 3G(d), the relevant portion of which reads as follows:

“3G—Notwithstanding… paragraph 3D(2)(b), an employment visa may be issued… (d) to a person in respect of whom… paragraph 3D(2)(b) should not, in the opinion of the Minister, be applied because of the existence of special circumstances.”

(b) The deeming provision of s. 7(3) of the Immigration Act pursuant to which the immigration officer made his examination and the Special Inquiry Officer held his inquiry was not applicable to the appellant because he had not ceased “to be a non-immigrant or to be in the particular class in which he was admitted as a non-immigrant”;

(c) Paras. 3D to 3G of the Immigration Regulations are “ultra vires” the authority of the Governor in Council under s. 57 of the Immigration Act.

The first ground of attack is essentially to the effect that the deportation order should be quashed because the authority granted to the Minister under para. 3G(d) of the Regulations could not be exercised on his behalf by the Special Inquiry Officer.

Before dealing with the merits of this first ground of attack, it is necessary to examine the contentions of the respondent to the effect that the appellant did not at the appropriate time ask for the waiver provided for in para. 3G(d) of the Regulations and that, in any event, the Special Inquiry Officer did not, in fact, exercise the Minister’s authority.

The record shows that before concluding his decision and issuing the deportation order, the Special Inquiry Officer asked counsel for the appellant whether he had any additional comments to make “at this time”, to which counsel replied as follows:

“Yes, I do. I respectfully submit that section 3G, subsection (d) of the Immigration Regulations as

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amended by SOR/73-20 dated the 27th of December 1972 requires a Special Inquiry Officer to consider whether a violation of paragraph 3D(2)(b) is one which provides the issuance of an employment visa in the light of any special circumstances that may exist in a particular case. I submit that in this case special circumstances exist and that it is incumbent on the Special Inquiry Officer to investigate such and see whether the Minister’s opinion deems such circumstances valid ground for the waiving of the application of section 3D(2).”

While the submission of counsel could undoubtedly have been worded differently, it is nevertheless clear to me that he was then seeking to obtain a waiver of the prohibition against the issue of an employment visa as contained in para. 3D(2)(b) because of the alleged existence of special circumstances as envisaged in para. 3G(d). No other meaning can be attributed to the last sentence of counsel’s submission above quoted.

I am therefore of the view that the appellant, through his counsel, indicated to the Special Inquiry Officer in sufficiently clear language that he was invoking the benefit of para. 3G(d) of the Regulations: I am also of the view that the application of counsel was made at the appropriate time, i.e. before the Special Inquiry Officer proceeded to deliver the operative part of his decision quoted above and before the appellant was ordered to be detained and deported.

The other contention advanced by the respondent, namely, that the Special Inquiry Officer did not exercise the Minister’s authority under para. 3G(d), is equally ill-founded; it is clear to me that the Special Inquiry Officer proceeded in the matter as if he were authorized to act on behalf of the Minister, as is evidenced from his following ruling:

“With full respect to counsel, I have carefully considered all the evidence adduced at this inquiry and, in my opinion, there are no special circumstances in existence at the present time in order to apply paragraph 3G(d) of the Immigration Regulations as requested by counsel.”

It now becomes necessary to determine if the discretion granted to the Minister under para.

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3G(d) could be delegated to and exercised by the Special Inquiry Officer.

In R. v. Harrison[1] my brother Dickson, speaking for the Court said, at p. 245, that “a power to delegate is often implicit in a scheme empowering a Minister to act”. Whether such power exists however or, in other words, whether it may be presumed that the act will be performed not by the Minister but by responsible officers in his Department will depend on the intent of Parliament as it may be derived from, amongst other things, the language used in the statute as well as the subject matter of the discretion entrusted to the Minister.

In the Immigration Act, Parliament has recognized the existence of different levels of authority, namely, the Governor in Council, the Minister, the Director, the Immigration Officer in charge, the Special Inquiry Officer and the Immigration Officer. The authority granted by Parliament to each of such levels is clearly specified in the Act. In some cases, the Act allows for a sharing of authority as between some of these levels. For instance, under s. 12, a peace officer is obligated to carry out any warrant issued under the Act for the arrest, detention or deportation of any person if “so directed by the Minister, Director, Special Inquiry Officer or an Immigration Officer”. Also, s. 36(2) authorizes “the Minister, Director, a Special Inquiry Officer or an Immigration Officer” to give certain instructions with respect to the deportation of a person against whom a deportation order has been made.

Similarly, the regulations issued under the Act make a clear distinction between the authority conferred on the Minister on the one hand and on his officials on the other hand.

Indeed, in the Act and in the Regulations, the most important functions have been reserved for the Minister’s discretion while authority in other areas have been delegated directly to specified officials.

The general framework of the Act and of the Regulations is clear evidence of the intent of Par-

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liament and of the Governor in Council that the discretionary power entrusted to the Minister be exercised by him rather than by his officials acting under the authority of an implied delegation, subject of course to any statutory provision to the contrary. To put it differently, the legislation here in question, because of the way it is framed and also possibly because of its subject matter, makes it impossible to say, as was the situation in Harrison, that the power of the Minister to delegate is implicit; quite the contrary.

I am reinforced in my opinion on this point by s. 67 of the Act which reads as follows:

“The Minister may authorize the Deputy Minister or the Director to perform and exercise any of the duties, powers and functions that may be or are required to be performed or exercised by the Minister under this Act or the regulations and any such duty, power or function performed or exercised by the Deputy Minister or the Director under the authority of the Minister shall be deemed to have been performed or exercised by the Minister.”

The effect of this section is, by necessary implication, to deny the Minister the right to delegate powers vested in him to persons not mentioned therein.

I therefore come to the conclusion that the discretion entrusted to the Minister under para. 3G(d) of the Regulations must be exercised by him or, if properly authorized to do so under s. 67, by one of the persons therein mentioned which do not include the Special Inquiry Officer who issued the deportation order here in question.

It follows that the decision made by the Special Inquiry Officer in this case to the effect that “there are no special circumstances in existence at the present time in order to apply para. 3G(d) of the Immigration Regulations as requested by counsel” is not and cannot be considered as a decision of the Minister; it is therefore invalid.

But is the deportation order vitiated by the invalidity of the decision of the Special Inquiry Officer under para. 3G(d) of the Regulations? I think so.

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Under para. 3G(d), the appellant was entitled to have the Minister rule as to the “existence of special circumstances”; this was a substantive right of the appellant which flowed to him directly from the Regulations and which the Special Inquiry Officer had no authority to abrogate whether directly or indirectly.

In purporting to exercise the Minister’s authority under para. 3G(d) of the Regulations and in proceeding immediately thereafter to issue a deportation order against the appellant, the Special Inquiry Officer effectively denied the appellant his right to have the Minister decide whether the special circumstances envisaged in para. 3G(d) existed. Indeed, once the deportation order had been issued, the Minister was by law precluded from exercising any discretion in the matter because of s. 8 of the Act which reads in part as follows:

“The Minister may issue a written permit authorizing any person to enter Canada or, being in Canada, to remain therein, other than

(a) a person under order of deportation who was not issued such a written permit before the 13th day of November 1967,…”

In other words, when the deportation order had been issued, it was no longer possible for the Minister to prevent the appellant from being deported even if he felt that, “because of the existence of special circumstances”, the application of para. 3D(2)(b) to the appellant should be waived; it must be noted that, had such a waiver been given prior to the deportation order being issued, the appellant would have qualified for an employment visa since the application of para. 3D(2)(b) was the only bar to the issue of such visa. This shows quite clearly that we are dealing here with matters of substance rather than of procedure.

To hold that the invalidity of the decision of the Special Inquiry Officer as to the existence of special circumstances under para. 3G(d) has no effect on the validity of the deportation order would lead one to the untenable conclusion that a Special Inquiry Officer could, through an improper exercise of the Minister’s authority under para. 3G(d), nullify the right of a non‑immigrant under

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said paragraph by preventing the Minister from exercising the discretion with which he was entrusted.

In my view, the making of an application seeking the opinion of the Minister pursuant to para. 3G(d) has the effect of suspending the authority of the Special Inquiry Officer to issue a deportation order, and the only possible course of action for the Special Inquiry Officer under such circumstances is to adjourn making his decision until such time as the Minister has disposed of the application.

Because of my conclusion on this first ground of attack of the appellant against the deportation order, I find it unnecessary to express any opinion one way or the other as to the merits of the other contentions of the appellant.

On the whole, I would therefore allow the appeal, set aside the judgment of the Federal Court of Appeal and quash the deportation order dated October 8, 1975 issued against the appellant by the Special Inquiry Officer, A. Nebesio.

Appeal allowed.

Solicitor for the appellant: Charles Roach, Toronto.

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