Principles of Administrative Law
| Author | Donald Galloway |
| Pages | 79-105 |
CHAPTER
ADMINISTRATIVE
LAW
A
large percentage
of
immigration
law
cases deal with
the
application
of
well-established, general principles
of
administrative
law to the
defined
and
narrow domain
of
immigration.
The
judicial remedies sought
by the
appli-
cants
in
these cases have evolved
from
the
prerogative writs developed
by
the
common
law
courts
to
control
the
excesses
of
decision makers
in all
branches
and
departments
of
government. Accordingly,
it
makes sense
to
conceive
of
immigration
law as an
area
of
specialization that
falls
within
the
more general compass
of
administrative law. While
the
recent expansion
of
constitutional grounds
to
challenge government action
has
encouraged
immigration lawyers
to
look increasingly
to the
Charter
or
Bill
of
Rights
as
the
primary
sources
of
legal
controls
over government,
the
general
princi-
ples
of
administrative
law
will apply
in
many situations where these docu-
ments have
no
application. Moreover,
if one
accepts Sopinka J.'s view that
"[t]he
principles
of
fundamental
justice
are to be
found
in the
basic tenets
of
our
legal
system,"1
one
will
be
able
to
refer
to and
rely
on
administrative
law
principles when determining
and
concretizing
Charter
values.
The
single legal principle that dominates administrative law,
and
thus,
by
implication, immigration law,
is the
principle
of the
rule
of
law,
which requires three things:
first,
that government
officials
exercise only
those powers granted
to
them
by
law, whether statute law, regulation,
or
common law; second, that
officials
to
whom powers have been allocated
Chiarelli
v.
Canada
(Minister
of
Employment
&>
Immigration),
at
732.
1
79
a
PRINCIPLES
OF
remain within
the
ambit
of
these powers;
and
third, that
officials
on
whom legal duties have been imposed
fulfil
the
terms
of
these
duties.2
Administrative
law
remedies have been tailored
to
cope with
the
various
ways
in
which
these requirements
can be
breached.3
The
principle will
be
contravened most obviously when
officials
engage
in
actions they
have
not
been authorized
to
take,
or
follow
procedures
of
decision mak-
ing
contrary
to
those they
are
required
to
observe.
Although
the
principle
of the
rule
of law
dominates administrative
law
jurisprudence,
it is
tempered
by
judicial recognition that many administra-
tive
agencies have
an
expertise
which
courts
do not
have,
and
that fre-
quently there
is
good reason
for
courts
to
defer
to
agency decision making
by
not
interfering with their operations, except
in
egregious cases. Perhaps
the
most troublesome dilemma
in
administrative
law
today
is
that
of
deter-
mining
when
it is
appropriate
for a
court
to be
strict
in
interpreting
the
legal
limits
of an
agency's decision-making authority, thus restraining
the
agency
to
respect
the
court's conception
of the
substantive
and
procedural
demands
of the
law,
and
when
it is
appropriate
to be lax in an
interpretation
of
these limits, thereby allowing
the
agency
to
exercise
its
greater expertise
in
deciding what ought
to be
done.
In the
immigration
field,
we are
begin-
ning
to
witness judicial awareness
of
this dilemma. Until
the
mid-1990s
there
was
little advertence
to the
wisdom
of
deference,
even
by
judges
who
were
raising
the
question
in
relation
to
other administrative agencies. How-
ever,
within
the
last
two
years some judges
in the
Federal Court have begun
to
raise
the
issue
and to
debate
it.4
Section
18.1
of the
Federal
Court
Act5
specifies
the
types
of
conduct
in
which
an
administrative body
or
official
should
not
engage, conduct
which
is
inconsistent with
the
principle
of the
rule
of law and
which,
therefore,
can
give
rise
to a
successful application
for
judicial review.
Subsection
(4)
states:
The
Trial Division
may
grant relief under subsection
(3) if it is
satisfied
that
the
federal
board, commission
or
other tribunal
(a)
acted
without
jurisdiction,
acted beyond
its
jurisdiction
or
refused
to
exercise
its
jurisdiction;
(b)
failed
to
observe
a
principle
of
natural
justice,
procedural
fairness
or
other procedure that
it was
required
by law to
observe;
(c)
erred
in law in
making
a
decision
or an
order, whether
or not the
error appears
on the
face
of the
record;
See
generally
A.V
Dicey,
Introduction
to
the
Study
of
the Law
of
the
Constitution,
10th
ed.
(London: Macmillan,
1959).
For a
more detailed analysis
of
administrative
law
remedies,
see
chapter
13.
See
below,
at
note
10.
R.S.C.
1985,
c. F-7
[FCA].
80
IMMIGRATION
LAW
2
3
4
5
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