Peiroo v. Minister of Employment and Immigration, (1989) 34 O.A.C. 43 (CA)

• Judge: Zuber, Tarnopolsky and Catzman, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: May 29, 1989
• Jurisdiction: Ontario
• Citations: (1989), 34 O.A.C. 43 (CA)

Peiroo v. MEI (1989), 34 O.A.C. 43 (CA)

MLB headnote and full text

Nasrin Peiroo (appellant) v. Minister of Employment and Immigration (respondent)

(117/89)

Indexed As: Peiroo v. Minister of Employment and Immigration

Ontario Court of Appeal

Zuber, Tarnopolsky and Catzman, JJ.A.

May 29, 1989.

Summary:

An Iranian citizen claimed Convention refugee status upon arrival in Canada pursuant to s. 19(2)(d) of the Immigration Act. A report was made alleging her to be inadmissible to Canada, in that she failed to obtain a visa prior to arrival in Canada and possessed no valid and subsisting passport, identity or travel document. She was then the subject of an immigration inquiry. An adjudicator also found her inadmissible to Canada for the same reasons. Accordingly, the adjudicator issued an exclusion order requiring her to leave Canada. The alien applied for habeas corpus with certiorari in aid. The trial judge dismissed the application. The alien appealed and obtained a stay of execution of the removal order pending the hearing of her appeal.

The Ontario Court of Appeal dismissed the appeal.

Aliens - Topic 1326

Admission - Refugees - Procedure - The Ontario Court of Appeal set out the procedure to be followed where a person who is the subject of an inquiry claims to be a Convention refugee, given the amendments to the Immigration Act effective January 1, 1989 - The court categorized the procedure as falling into two stages - See paragraphs 2 to 3.

Habeas Corpus - Topic 1505

Bars to issue of writ - Existence of alternate remedy - The Ontario Court of Appeal stated that the writ of habeas corpus is an extraordinary remedy and, generally speaking, does not lie where there is an alternative remedy available, such as an appeal - See paragraph 8.

Habeas Corpus - Topic 1505

Bars to issue of writ - Existence of alternate remedy - An adjudicator issued an exclusion order requiring a claimant for refugee status to leave Canada, ruling that her claim was without basis - The claimant sought habeas corpus with certiorari in aid - The Immigration Act expressly provided for review and appeal to the Federal Court, with leave - The Ontario Court of Appeal accepted arguments that habeas corpus should be refused because there was an alternative remedy available - The court held that the ambit of the review and appeal provisions was as broad or broader than the traditional scope of review by habeas corpus and certiorari - See paragraphs 5 to 22.

Cases Noticed:

R. v. Governor of Pentonville Prison, ex parte Azam, [1973] 2 All E.R. 741 (C.A.), refd to. [para. 12].

Toth v. Minister of Employment and Immigration (1988), 86 N.R. 302 (F.C.A.), refd to. [para. 15].

Pereira and Minister of Manpower and Immigration, Re (1977), 33 C.C.C.(2d) 435, affd. (1978), 43 C.C.C.(2d) 390 (Ont. C.A.), refd to. [para. 20].

Pringle v. Fraser, [1972] S.C.R. 821, refd to. [para. 22].

Bhadauria v. Seneca College, [1981] 2 S.C.R. 181; 37 N.R. 455, refd to. [para. 22].

Statutes Noticed:

Federal Court Act, R.S.C. 1985, c. F-7, sect. 28 [paras. 10, 13].

Habeas Corpus Act, R.S.O. 1980, c. 193, sect. 1(1) [para. 13].

Immigration Amendment Act, S.C. 1988, c. 35, sect. 32(5), sect. 32.1(3), sect. 32.1(5), sect. 45(3), sect. 48(1)(a), sect. 48(1)(b), sect. 48(1)(c), sect. 48.01(6), sect. 48.02(1), sect. 48.02(2) [para. 2]; sect. 51(1)(b) [para. 14]; sect. 83.1 [para. 10]; sect. 83.1(1) [para. 13]; sect. 83.3 [para. 11].

Authors and Works Noticed:

Harvey, The Law of Habeas Corpus in Canada (1974), p. 13 [para. 8].

Salhany, Canadian Criminal Procedure (4th Ed. 1984), p. 521 [para. 8].

Counsel:

Clayton Ruby and Barbara L. Jackman, for the appellant;

J.E. Thompson and Michael W. Duffy, for the respondent.

This appeal was heard before Zuber, Tarnopolsky and Catzman, JJ.A., of the Ontario Court of Appeal on February 22-24, 1989. The decision of the Court of Appeal was delivered by Catzman, J.A., and released on May 29, 1989.