Prassad v. Canada (Minister of Employment and Immigration)

Prassad v. Canada (Minister of Employment and Immigration)
Collection
Supreme Court Judgments
Date
1989-03-23
Report
[1989] 1 SCR 560
Case number
19608
Judges
Dickson, Robert George Brian; McIntyre, William Rogers; Lamer, Antonio; Wilson, Bertha; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John
On appeal from
Federal Court of Appeal
Subjects
Immigration
Notes
SCC Case Information: 19608
Decision Content
Prassad v. Canada (Minister of Employment and Immigration), [1989] 1 S.C.R. 560
Madhur Lata Prassad Appellant
v.
Minister of Employment and Immigration Respondent
indexed as: prassad v. canada (minister of employment and immigration)
File No.: 19608.
1988: November 28; 1989: March 23.
Present: Dickson C.J. and McIntyre, Lamer, Wilson, La Forest, L'Heureux-Dubé
and Sopinka JJ.
on appeal from the federal court of appeal
Immigration -- Adjournment of inquiry -- Powers of adjudicator ‑‑ Application for a Minister's permit authorizing a person to remain in Canada ‑‑ Whether adjudicator must adjourn immigration inquiry to enable appellant to pursue her application made under s. 37(1) of the Immigration Act, 1976 -- Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 27(3), 37(1), 113(e) -- Immigration Regulations, 1978, SOR/78-172, s. 35(1).
Appellant was deported from Canada on June 6, 1984 and re-entered the country without the written consent of the Minister of Employment and Immigration contrary to s. 57(1) of the Immigration Act, 1976. On November 2, 1984, the immigration inquiry held by an adjudicator pursuant to s. 27(3) of the Act was adjourned to give appellant's counsel time to prepare. Two weeks after the adjournment, appellant sent a letter to the Minister seeking a permit authorizing her to remain in Canada pursuant to s. 37(1)(b) of the Act. When the inquiry reconvened on November 21, 1984, appellant requested an adjournment to permit her application to the Minister to be considered. The adjudicator refused the request and proceeded with the inquiry. At the conclusion of the inquiry, a deportation order was made against the appellant. The Federal Court of Appeal dismissed appellant's application, made under s. 28 of the Federal Court Act , to review and set aside the adjudicator's decision. The Court held that the adjudicator did not err in refusing an adjournment of the inquiry to permit the appellant to pursue an application under s. 37(1) of the Act.
Held (Wilson and L'Heureux-Dubé JJ. dissenting): The appeal should be dismissed.
Per Dickson C.J. and McIntyre, Lamer, La Forest and Sopinka JJ.: An adjudicator, acting pursuant to s. 27(3) of the Immigration Act, 1976, is not required to adjourn an inquiry to enable the subject of that inquiry to pursue an application under s. 37(1) of the Act. The adjudicator is given discretion under s. 35(1) of the Immigration Regulations, 1978, and s. 113(e) of the Act to determine whether an adjournment shall be granted or refused, and such discretion is guided by the general principle that a "full and proper inquiry" be held. In exercising this discretion to adjourn, the adjudicator may consider such factors as the number of adjournments already granted and the length of time for which an adjournment is sought. Where an adjournment is requested in order that an application under s. 37 might be pursued, the adjudicator may also consider the opportunity available to the subject of the inquiry to apply to the Minister prior to the request for an adjournment. Here, the adjudicator properly refused to adjourn the inquiry. Appellant could have applied at any time between the date of her removal from Canada on June 6, 1984, and the recommencement of the inquiry on November 21, 1984. She did not send a letter to the Minister's office until November 16, 1984.
The decision of the Court in Ramawad is distinguishable from the present case. Ramawad involved provisions of the former Immigration Act and Regulations specific to an application for an employment visa. The final determination of the visa application required the decision of the Minister. In the present case, the s. 37(1) application was not an integral part of the proceedings before the adjudicator under s. 27(3) but a remedy that was clearly separate from that proceeding. The mere fact that there was an alternative remedy open to the appellant did not convert it into an automatic concomitant right to have other proceedings adjourned to accommodate the application. Nothing in s. 37 suggests that an application under that section is to be treated any differently than an application for other remedies.
Per Wilson and L'Heureux-Dubé JJ. (dissenting): The adjudicator erred in refusing to adjourn the immigration inquiry. This Court's reasoning in Ramawad applies to an application for a Minister's permit pursuant to s. 37(1) of the Immigration Act, 1976. While a person has no legal right to obtain a permit under s. 37(1), such a person has a right in the sense of a legal entitlement to obtain a decision from the Minister as to whether his case is deserving of special relief. Since the Minister has no power to issue a permit to a person against whom a removal order has been made (s. 37(2)), although such a person might otherwise be deserving of special consideration, the denial of a request to adjourn the immigration inquiry pending disposition of the application for a Minister's permit will generally constitute the denial of the right to obtain a decision from the Minister as well. This result could not have been intended by Parliament. Moreover, the expanding doctrine of administrative fairness strongly militates in favour of ensuring that the inquiry is not held in a way which denies the applicant his entitlement to a decision from the Minister. Therefore, where an application for a permit is made pursuant to s. 37(1), the adjudicator must adjourn the immigration inquiry pending the disposition of the applicant's request by the Minister or someone authorized to exercise the Minister's authority. This will be the case where there has not been a previous refusal to grant such a permit, based on the circumstances existing at the time the application is made. Although the adjudicator has a general discretion to adjourn by virtue of s. 35(1) of the Immigration Regulations, 1978, where an application under s. 37(1) of the Act is made before a determination is reached on the merits of the immigration inquiry, the adjudicator may exercise this discretion and refuse the adjournment only in those cases where doing so will not compromise the applicant's entitlement to a consideration of his case and a decision from the Minister.
Cases Cited
By Sopinka J.
Distinguished: Ramawad v. Minister of Manpower and Immigration, [1978] 2 S.C.R. 375; applied: Minister of Employment and Immigration v. Widmont, [1984] 2 F.C. 274; Louhisdon v. Employment and Immigration Canada, [1978] 2 F.C. 589; Oloko v. Canada Employment and Immigration, [1978] 2 F.C. 593; Murray v. Minister of Employment and Immigration, [1979] 1 F.C. 518; Stalony v. Minister of Employment and Immigration (1980), 36 N.R. 609; considered: Laneau v. Rivard, [1978] 2 F.C. 319; Nesha v. Minister of Employment and Immigration, [1982] 1 F.C. 42; referred to: Re Cedarvale Tree Services Ltd. and Labourers' International Union of North America, Local 183 (1971), 22 D.L.R. (3d) 40; Pierre v. Minister of Manpower and Immigration, [1978] 2 F.C. 849; Tam v. Minister of Employment and Immigration, [1983] 2 F.C. 31; Minister of Manpower and Immigration v. Tsakiris, [1977] 2 F.C. 236; Lodge v. Minister of Employment and Immigration, [1979] 1 F.C. 775; Minister of Employment and Immigration v. Hae Soo Han, [1984] 1 F.C. 976.
By L'Heureux-Dubé J. (dissenting)
Ramawad v. Minister of Manpower and Immigration, [1978] 2 S.C.R. 375; Minister of Employment and Immigration v. Widmont, [1984] 2 F.C. 274; Louhisdon v. Employment and Immigration Canada, [1978] 2 F.C. 589; Oloko v. Canada Employment and Immigration, [1978] 2 F.C. 593; Murray v. Minister of Employment and Immigration, [1979] 1 F.C. 518; Laneau v. Rivard, [1978] 2 F.C. 319; Nesha v. Minister of Employment and Immigration, [1982] 1 F.C. 42; Jiminez-Perez v. Minister of Employment and Immigration, [1983] 1 F.C. 163 (C.A.), aff'd in part on another issue [1984] 2 S.C.R. 565; Beeston v. Minister of Employment and Immigration (1982), 41 N.R. 260.
Statutes and Regulations Cited
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10 [now R.S.C. 1985, c. F-7 ], s. 28 .
Immigration Act, 1976, S.C. 1976-77, c. 52 [now R.S.C. 1985, c. I-2], ss. 27(2)(h), (3), 29(1), (5), 30(1), 31(1), 32(6), 37(1), (2), (4), (6), 43(1), 45(1), 57(1) [rep. & subs. 1984, c. 40, s. 36(4)], 113, 115(2).
Immigration Regulations, 1978, SOR/78-172, s. 35(1).
Authors Cited
Wydrzynski, Christopher James. Canadian Immigration Law and Procedure. Aurora, Ont.: Canada Law Book, 1983.
APPEAL from a judgment of the Federal Court of Appeal, [1985] 1 F.C. D-4, dismissing appellant's application under s. 28 of the Federal Court Act to review and set aside a deportation order. Appeal dismissed, Wilson and L'Heureux‑Dubé JJ. dissenting.
Andrew J. A. McKinley, for the appellant.
H. J. Wruck, for the respondent.
//Sopinka J.//
The judgment of Dickson C.J. and McIntyre, Lamer, La Forest and Sopinka JJ. was delivered by
SOPINKA J. -- The issue in this case is whether the adjudicator of an immigration inquiry must adjourn the inquiry to enable the appellant to pursue an application to the Minister under s. 37(1) of the Immigration Act, 1976, S.C. 1976-77, c. 52 (now R.S.C. 1985, c. I-2), as amended. Here the adjudicator refused to grant the appellant's request for an adjournment. The Federal Court of Appeal dismissed an application under s. 28 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10 (now R.S.C. 1985, c. F-7 ), as amended, to review and set aside the decision of the adjudicator. The appellant appeals to this Court from that dismissal.
The immigration inquiry before the adjudicator arose out of the following circumstances. The appellant, also known as Sandhya Kishun, is a citizen of Fiji. She is neither a permanent resident nor a citizen of Canada. She originally entered Canada as a visitor in 1975 and continued in that status until a deportation order was made against her on September 15, 1982. She was removed from Canada on June 6, 1984, pursuant to that order.
The appellant's stay in Canada between 1975 and 1982 was authorized by a Minister's permit issued under s. 37(1) of the Immigration Act, 1976. This permit was extended a number of times. Following an immigration inquiry, the deportation order of September 15, 1982, was made pursuant to s. 37(6) of the Act. The appellant had been convicted of a number of criminal offences during her stay in Canada.
On August 17, 1984, the appellant re-entered Canada without having first obtained the written consent of the Minister contrary to s. 57(1) of the Act. She then became subject to a report under s. 27(2)(h) of the Act and was arrested.
On November 2, 1984, an inquiry was commenced under s. 27(3) of the Act. At the hearing, the appellant was ordered released upon the posting of a cash bond, and the inquiry was adjourned to November 21, 1984, to permit counsel for the appellant time to prepare.
When the inquiry reconvened, counsel for the appellant delivered to the adjudicator a copy of a letter, dated November 16, 1984, which had been sent to the respondent. In the letter, the appellant applied to the Minister of Employment and Immigration for a Minister's permit authorizing her to remain in Canada pursuant to s. 37(1)(b) of the Act. She also applied to the Governor in Council for exemption from the Regulations pursuant to s. 115(2) and permission to establish permanent residence in Canada. Officials in the Minister's office indicated that they had not received the letter as of the date upon which the inquiry reconvened.
Counsel for the appellant then requested an adjournment of the inquiry to permit her applications to the Minister and to the Governor in Council to be considered. The adjudicator refused the request and proceeded with the inquiry. At the conclusion of the inquiry a deportation order was made against the appellant pursuant to s. 32(6) of the Act.
On March 5, 1985, the Federal Court of Appeal dismissed the appellant's application under s. 28 of the Federal Court Act to review and set aside the decision of the adjudicator. Thurlow C.J., speaking for the Court, considered the court bound by its consistent previous judgments, including the decision in Minister of Employment and Immigration v. Widmont, [1984] 2 F.C. 274 (C.A.) The Court held that the adjudicator did not err in refusing an adjournment of the inquiry to permit the appellant to pursue applications under ss. 37(1) and 115(2) of the Immigration Act, 1976. On July 9, 1985, the Federal Court of Appeal granted the appellant leave to appeal its decision to this Court, [1985] 2 F.C. 81.
The resolution of this appeal requires a careful examination of the applicable provisions of the Immigration Act, 1976, and the relevant procedures.
Legislation and Procedures
The following are the relevant provisions of the Immigration Act, 1976:
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
. . .
(h) came into Canada contrary to section 57,
. . .
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.
(3) Subject to any order or direction of the Minister, the Deputy Minister shall, on receiving a report pursuant to subsection (1) or (2), and where he considers that an inquiry is warranted, forward a copy of that report and a direction that an inquiry be held to a senior immigration officer.
31. (1) An adjudicator shall give his decision as soon as possible after an inquiry has been completed and his decision shall be given in the presence of the person concerned wherever practicable.
32. . . .
(6) Where an adjudicator decides that a person who is the subject of an inquiry is a person described in subsection 27(2), he shall, subject to subsections 45(1) and 47(3), make a deportation order against the person unless, in the case of a person other than a person described in paragraph 19(1)(c), (d), (e), (f), or (g) or 27(2)(c), (h) or (i), he is satisfied that
(a) having regard to all the circumstances of the case, a deportation order ought not to be made against the person, and
(b) the person will leave Canada on or before a date specified by the adjudicator,
in which case he shall issue a departure notice to the person specifying therein the date on or before which the person is required to leave Canada.
37. (1) The Minister may issue a written permit authorizing any person to come into or remain in Canada if that person is
(a) in the case of a person seeking to come into Canada, a member of an inadmissible class, or
(b) in the case of a person in Canada, a person with respect to whom a report has been or may be made under subsection 27(2).
(2) Notwithstanding subsection (1), a permit may not be issued to
(a) a person against whom a removal order has been made who has not been removed from Canada pursuant to such an order or has not otherwise left Canada, unless an appeal from that order has been allowed;
(b) a person to whom a departure notice has been issued who has not left Canada; or
(c) a person in Canada with respect to whom an appeal made pursuant to section 79 has been dismissed.
. . .
(4) The Minister may at any time, in writing, extend or cancel a permit.
57. (1) Subject to section 58, where a deportation order is made against a person, the person shall not, after he is removed from or otherwise leaves Canada, come into Canada without the written consent of the Minister unless an appeal from the order has been allowed.
Section 113 of the Act specifies certain of an adjudicator's powers:
113. An adjudicator has all the powers and authority of a commissioner appointed under Part I of the Inquiries Act and, without restricting the generality of the foregoing, may, for the purposes of an inquiry,
(a) issue a summons to any person requiring him to appear at the time and place mentioned therein to testify with respect to all matters within his knowledge relative to the subject-matter of the inquiry and to bring with him and produce any document, book or paper that he has in his possession or under his control relative to the subject-matter of the inquiry;
(b) administer oaths and examine any person on oath;
(c) issue commissions or requests to take evidence in Canada;
(d) engage the services of such counsel, interpreters, technicians, clerks, stenographers and other persons as he deems necessary for a full and proper inquiry; and
(e) do all other things necessary to provide a full and proper inquiry.
Section 35(1) of the Immigration Regulations, 1978, SOR/78-172, as amended, provides:
35.(1) The adjudicator presiding at an inquiry may adjourn the inquiry at any time for the purpose of ensuring a full and proper inquiry.
The applicable inquiry procedures created by these provisions are as follows. An immigration officer may have information that a person in Canada, other than a Canadian citizen or permanent resident, is a person who falls into any of the categories listed in s. 27(2), including being a person who, having been subject to a deportation order, re-entered Canada without the written consent of the Minister. The immigration officer must forward that information in a report to the Deputy Minister. If the Deputy Minister considers it is warranted, an immigration inquiry shall be held.
The inquiry is held before an adjudicator. The subject of the inquiry is present (s. 29(1)) and is entitled to be represented by legal counsel (s. 30(1)). Upon hearing evidence from both sides, the adjudicator will render a decision. If the adjudicator decides that the subject of the inquiry is a person described in s. 27(2), the adjudicator shall make a deportation order against that person.
Submissions of Counsel
Counsel for the appellant submitted that once an application for adjournment is made to the adjudicator, the adjudicator is obliged to adjourn to enable the applicant to pursue an application to the Minister under s. 37 of the Act. The appellant relies on the decision of this Court in Ramawad v. Minister of Manpower and Immigration, [1978] 2 S.C.R. 375, and on the fact that an order for deportation forecloses any opportunity to obtain the Minister's permit. Although the same argument was made in relation to an application to the Governor in Council under s. 115(2) of the Act in the Federal Court of Appeal, this argument was expressly abandoned by the appellant in this Court.
Counsel for the respondent submitted that by virtue of s. 35(1) of the Regulations, the adjudicator was obliged to refuse a request for an adjournment. He submitted that an application to the Minister under s. 37 is extraneous to the conduct of a full and proper inquiry under s. 27(3) of the Act. In the alternative, counsel for the respondent submitted that the adjudicator has a discretion to refuse the adjournment.
Powers of the Adjudicator
In order to arrive at the correct interpretation of statutory provisions that are susceptible of different meanings, they must be examined in the setting in which they appear. We are dealing here with the powers of an administrative tribunal in relation to its procedures. As a general rule, these tribunals are considered to be masters in their own house. In the absence of specific rules laid down by statute or regulation, they control their own procedures subject to the proviso that they comply with the rules of fairness and, where they exercise judicial or quasi-judicial functions, the rules of natural justice. Adjournment of their proceedings is very much in their discretion.
In Re Cedarvale Tree Services Ltd. and Labourers' International Union of North America, Local 183 (1971), 22 D.L.R. (3d) 40, the Ontario Court of Appeal was asked to hold that the Labour Relations Board was obliged to adjourn when its jurisdiction was attacked by a motion for certiorari in the High Court. Arnup J.A., speaking for the Court, stressed that the Board was "master of its own house" (p. 49) and was not required to adjourn when served with a notice of motion for certiorari. The Board was free to adopt such procedures as appeared to it to be just and convenient in the particular circumstances. Arnup J.A. concluded, at p. 50:
. . . it is for the Board itself to decide how it shall proceed. If procedural guide lines of a mandatory nature are to be laid down, they should come from the Legislature and not from the Court.
Jackett C.J., in Pierre v. Minister of Manpower and Immigration, [1978] 2 F.C. 849, put it this way, at p. 851:
In considering a complaint that a tribunal has refused to grant an adjournment, it must be remembered that, in the absence of some specific rule governing the manner in which the particular tribunal should exercise its discretion to grant an adjournment, the question as to whether an adjournment should be granted is a discretionary matter for the tribunal itself and that a supervisory tribunal has no jurisdiction to review the tribunal's decision to refuse an adjournment unless the refusal results in the decision made by the tribunal at the termination of the hearing being voidable as having been made without complying with the requirements of natural justice.
The power of an adjudicator to adjourn the proceedings is specifically addressed in s. 35(1) of the Regulations and more generally in s. 113(e) of the Act. The effect of these provisions is to confirm a discretion in the adjudicator, the exercise of which is guided by the general principle that a full and proper inquiry be held. I agree with the statement made by Wydrzynski, in Canadian Immigration Law and Procedure (1983), at p. 265:
The adjudicator is given discretion to determine whether an adjournment shall be granted, but, of course, this discretion is guided by the notion of a "full and proper" inquiry. In other words, the discretion must be exercised in accordance with principles of fairness and natural justice.
The appellant does not argue that the inquiry proceedings violated the principles of natural justice. She argues instead that she has a right to apply to the Minister under s. 37 and therefore the adjudicator is required to grant an adjournment to permit her to do so. Such a result can only obtain if s. 37 or some other provision deprives the adjudicator of the discretionary power to adjourn enjoyed by administrative tribunals and confirmed by s. 113(e) of the Act and s. 35 of the Regulations. In light of the usual practice relating to the power to adjourn which I have outlined above, I would expect to find rather explicit language in the statute or regulation if this result were intended.
There is no doubt that the adjudicator has a discretion to adjourn to permit an application under s. 37(1). (See Tam v. Minister of Employment and Immigration, [1983] 2 F.C. 31 (C.A.), and Widmont, supra.) In this regard, I respectfully disagree with the respondent's submission that s. 35(1) of the Regulations obliges the adjudicator to reject an application for an adjournment to permit an application under s. 37(1). The contrary proposition then remains to be addressed: is the adjudicator obliged to grant the application for adjournment in these circumstances?
The cornerstone of the appellant's argument is that once a removal order is made the Minister cannot grant an application under s. 37 and therefore the adjudicator must give the appellant this opportunity. This overstates the consequences of the refusal of an adjournment. The application to the Minister is barred only as long as the removal order remains unexecuted. No doubt removal from the country may make such an application more difficult, but did Parliament intend that this potential difficulty requires that the proceedings before the adjudicator be automatically stayed upon application to the Minister under s. 37?
This relationship between a removal order and a Minister's permit under s. 37(1) was created in the first amendments to the Immigration Act of 1952 (S.C. 1966-67, c. 90, s. 26) and has been continued into the present Act. Parliament amended the Immigration Act of 1952 a number of times prior to repealing it in 1976. Its replacement, the present Immigration Act, 1976, has subsequently been frequently amended. However, in not one of these amendments did Parliament remove the statutory bar which an unexecuted removal order poses to the issuance of a Minister's permit. Neither has Parliament seen fit to require an adjudicator to adjourn an inquiry in this circumstance, nor to empower the Minister to impose a stay of inquiry proceedings upon receipt of an application under s. 37(1).
This may be usefully contrasted with other provisions of the Act which explicitly require an adjournment for specified purposes. The adjudicator shall adjourn the inquiry if: the subject of the inquiry is under eighteen years of age and unrepresented by a parent or guardian (s. 29(5)); the subject of the inquiry who is to be removed from Canada claims, during the inquiry, to be a Canadian citizen (s. 43(1)); or the subject of the inquiry who is to be removed from Canada claims, during the inquiry, to be a Convention refugee (s. 45(1)).
Moreover an adjudicator is not required to adjourn an inquiry to await the outcome of other proceedings taken under the Immigration Act such as an application for sponsorship (see Minister of Manpower and Immigration v. Tsakiris, [1977] 2 F.C. 236 (C.A.)) As well, the Federal Court of Appeal has held that an adjudicator is not required to adjourn the inquiry to enable the subject of the inquiry to pursue an application under the Canadian Human Rights Act, S.C. 1976-77, c. 33 (now R.S.C. 1985, c. H-6 ): Lodge v. Minister of Employment and Immigration, [1979] 1 F.C. 775. Likewise, an adjudicator is not required to adjourn the inquiry to enable the subject of the inquiry to apply for Canadian citizenship under the Citizenship Act , S.C. 1974-75-76, c. 108 (now R.S.C. 1985, c. C-29 ): Minister of Employment and Immigration v. Hae Soo Han, [1984] 1 F.C. 976. In Han, a deportation order issued at the close of the inquiry, before the processing of the citizenship application, would have precluded the granting of citizenship to the applicant (p. 981).
The logic of the appellant's submission would thus require that the adjudicator adjourn the inquiry whenever the result of that inquiry has the potential to inhibit the subject of that inquiry from pursuing an alternative remedy. This would amount to reading into the legislation an automatic stay. Absent clear statutory language, it is untenable to hinder the adjudication process under the Immigration Act, 1976, by laying down such an inflexible rule for the conduct of an inquiry.
The appellant's submission, therefore must be rejected unless, as the appellant contends, such a conclusion is preordained by this Court's decision in Ramawad v. Minister of Manpower and Immigration, supra. I now turn to consider that decision and cases in which it has been applied. The appellant bolsters her reliance on Ramawad by reference to its interpretation by the Trial Division of the Federal Court in Laneau v. Rivard, [1978] 2 F.C. 319, and Nesha v. Minister of Employment and Immigration, [1982] 1 F.C. 42, and by the minority of the Federal Court of Appeal in Louhisdon v. Employment and Immigration Canada, [1978] 2 F.C. 589; Oloko v. Canada Employment and Immigration, [1978] 2 F.C. 593, and Widmont, supra. On the other hand, the respondent relies on the consistent interpretation of Ramawad by the majority in the Federal Court of Appeal (see Louhisdon, supra; Oloko, supra; Widmont, supra; Murray v. Minister of Employment and Immigration, [1979] 1 F.C. 518, and Stalony v. Minister of Employment and Immigration (1980), 36 N.R. 609). Determining which interpretation can be sustained requires a careful examination of what was actually decided in Ramawad.
Ramawad was decided under the former Immigration Act, R.S.C. 1970, c. I-2. The appellant entered Canada as a non-immigrant under s. 7(1)(h) of that Act. Upon his arrival he was granted an employment visa authorizing him to work for one year as a jeweller for Jolyn Jewellery Products. One of the conditions of the visa was that the appellant obtain further authorization from an immigration officer if he altered his conditions of employment. The appellant was subsequently dismissed by his employer, and took work with another jewellery company. The appellant failed to inform immigration officials of his change in employment; they did not become aware of the change until the appellant applied for an extension of his visa at the end of the one-year authorization. Upon being informed that his visa had expired when he breached its condition, the appellant applied for a new employment visa. The appellant was, at that point, deemed to be seeking entry into Canada. Section 3C(1) of the Immigration Regulations, Part I, SOR/73-20, stated:
3C. (1) Subject to section 3F,
(a) no person may enter Canada as a non-immigrant for the purpose of engaging in employment, and
(b) no person other than
(i) a Canadian citizen,
(ii) a permanent resident, or
(iii) a person authorized to enter Canada under a written permit issued by the Minister pursuant to section 8 of the Act that expressly states that the holder thereof is authorized to engage in employment,
shall engage in employment in Canada, unless he is in possession of a valid employment visa.
A Special Inquiry Officer held an inquiry under s. 23(2) of the Immigration Act. Section 3D(2) of the Regulations required that an issuing officer issue an employment visa on application unless "(b) the applicant has violated the conditions of any employment visa issued to him within the preceding two years". The Special Inquiry Officer determined that the appellant had violated his previous visa by changing employers without authorization, thus he could not be issued an employment visa and could not stay in Canada. The appellant was ordered to be detained and deported.
Just prior to the conclusion of the inquiry, counsel for the appellant sought to invoke the benefit of s. 3G(d) of the Regulations. Section 3G read:
3G. Notwithstanding subparagraph 3D(2)(a)(i) and paragraph 3D(2)(b), an employment visa may be issued
. . .
(d) to a person in respect of whom subparagraph 3D(2)(a)(i) and paragraph 3D(2)(b) should not, in the opinion of the Minister, be applied because of the existence of special circumstances.
The Special Inquiry Officer responded at p. 380:
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.
This Court allowed an appeal from a judgment of the Federal Court of Appeal dismissing an application to set aside the deportation order. This Court based its decision on the appellant's first ground of appeal: namely, that the Special Inquiry Officer acted without authority when, in the purported exercise of the Minister's authority, the Special Inquiry Officer decided that the "special circumstances" envisaged in s. 3G(d) did not exist. Pratte J., speaking for the Court, held that the authority of the Minister to consider "special circumstances" under s. 3G(d) had not been implicitly delegated to the Special Inquiry Officer. Usurpation of this authority by the Special Inquiry Officer rendered his decision invalid (p. 382).
The main issue having been decided, Pratte J. then went on to hold that the invalid decision made by the Special Inquiry Officer vitiated the deportation order issued by him. The right of the appellant applying for an employment visa to have the Minister consider "special circumstances" under s. 3G(d) of the Regulations was nullified by the Special Inquiry Officer's improper exercise of the Minister's authority. Pratte J. concluded his discussion of the merits with a broadly-worded final paragraph at p. 384:
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.
Ramawad involved provisions of the Act and Regulations specific to an application for an employment visa. The determination of that issue depended on whether there was a violation of a condition of a prior employment visa and whether the violation would be waived by the Minister by reason of special circumstances. This issue could not be finally determined without obtaining the decision of the Minister. Obviously the appellant was entitled to the Minister's decision before this issue was resolved against him. The Special Inquiry Officer failed to consider whether the adjournment was necessary for a full and proper inquiry; he simply decided that there were no special circumstances. In doing so, he usurped the Minister's authority. In these circumstances the determination of the applicant's right to an employment visa gave him the right to have the Minister's decision because that issue was to be determined in part by the Minister. I therefore agree with Pratte J. in Louhisdon, supra, at p. 591, that:
[a]ll that was decided in that case [Ramawad], in my opinion, is that a person who is seeking an employment visa under sections 3B et seq of the Immigration Regulations, Part I, and who requests that his case be submitted to the Minister so that the latter may exercise the power conferred on him by section 3G(d) of the Regulations, may not be deported on the ground that he has no employment visa until the matter has been put before the Minister.
In the present case the application to the Minister under s. 37(1) is not an integral part of the proceedings before the adjudicator under s. 27(3) but a remedy that is clearly separate from that proceeding. The mere fact that there is an alternative remedy open to the appellant does not convert it into an automatic concomitant right to have other proceedings adjourned to accommodate the application. Nothing in s. 37 suggests that an application under that section is to be treated any differently than an application for other remedies which, as I have discussed, have not been accorded the recognition of an automatic stay.
As I have decided that Ramawad, supra, must be read in the context of its facts and the particular employment visa provisions at issue, I need not discuss at length the decisions which have interpreted that decision. I will, however, make a few comments on those decisions which have interpreted Ramawad, supra, as authority for the broad proposition which the appellant puts forth.
In Laneau v. Rivard, supra, Decary J. of the Federal Court Trial Division, was the first to use the decision in Ramawad, supra, to require that an adjournment be granted in order that the subject of the inquiry might pursue her application for a Minister's permit. In Laneau, the applicant met all the requirements of the former Immigration Act until she was forced to stop work as a domestic due to complications in her pregnancy. The applicant's fiancé, a Canadian citizen, did not show up for their wedding. The applicant feared that a deportation order might make it impossible for her to pursue a paternity suit against her former fiancé. Thus, the applicant applied to the Minister for a permit over five months prior to the commencement of the inquiry. The timeliness of the application by the applicant was clearly of importance to Decary J. (at p. 320):
It is important to note that this application was made before the immigration authorities summoned or even communicated with applicant;
The merits of the applicant's case heavily influenced a number of the decisions in which Ramawad, supra, was interpreted broadly. In Nesha v. Minister of Employment and Immigration, supra, the applicant had worked steadily as a housekeeper for the five years since her illegal entry into Canada. She wrote a letter to the Minister requesting special consideration immediately upon her arrest under the Immigration Act, 1976. In that letter, the applicant outlined the threats made against her by her common-law husband in Guyana and her belief that she would be killed by him upon her return to that country. In finding that the adjudicator was required to adjourn the inquiry, Smith D.J. commented at p. 51:
It does not seem just, in any event, that genuine cases, in which the known facts indicate there is sufficient merit to warrant a reasonable hope of success, should be frustrated in advance by the issuing of a deportation order. It is difficult for me to think that Parliament intended such an outcome.
It is not my function to pass an opinion on the present applicant's case. I will only say that if the allegations in her letter to the Minister of July 29, 1980, should be shown to be correct, it is not impossible to think her application might succeed.
This passage was cited by MacGuigan J., in dissent in Minister of Employment and Immigration v. Widmont, supra, and followed by this comment at p. 298:
The merits of the application of the respondent here for a Minister's permit seem equally apparent.
In Widmont, the respondent entered Canada legally from Poland and was unaware of the expiry date on her visitor's visa due to her inability to speak either French or English. The respondent herself approached immigration authorities to clarify her status due to her upcoming marriage to a Canadian citizen. Whatever the comparative circumstances of the present appellant may be, I do not believe that sympathy for the circumstances in which the subject of the inquiry finds himself or herself, is sufficient to transform an adjudicator's discretion to adjourn into a duty to adjourn. No doubt such circumstances are relevant to the exercise of the adjudicator's discretion and they will, where warranted, result in an adjournment. They are not, however, per se, a proper basis for appellate review of the adjudicator's discretion.
I conclude that an adjudicator acting pursuant to s. 27(3) of the Act is neither bound to accede to a request for an adjournment to enable an application under s. 37 to be brought, nor is he or she required to refuse it. Rather the adjudicator has a discretion. In some circumstances, an adjournment may well be granted to enable such an application; in other circumstances, it may properly be refused. While the adjudicator must be cognizant that a "full and proper inquiry" be held, the adjudicator must also ensure that the statutory duty to hold an inquiry is fulfilled. As Wydrzynski, op. cit., notes at p. 266:
Above all, there is a need to proceed expeditiously, and adjournments should not be viewed as a method to interminably delay the inquiry.
The adjudicator might consider such factors as the number of adjournments already granted and the length of time for which an adjournment is sought in exercising his or her discretion to adjourn. Where an adjournment is requested in order that an application under s. 37 might be pursued, the adjudicator might also consider the opportunity available to the subject of the inquiry to apply to the Minister prior to the request for an adjournment. In the present appeal,