Singh (Karnail) v. Minister of Employment and Immigration, (1986) 1 F.T.R. 307 (TD)

• Judge: Rouleau, J.
• Court: Federal Court (Canada)
• Case Date: January 27, 1986
• Jurisdiction: Canada (Federal)
• Citations: (1986), 1 F.T.R. 307 (TD)

Singh v. MEI (1986), 1 F.T.R. 307 (TD)

MLB headnote and full text

Karnail Singh v. Minister of Employment and Immigration, Canada

(T-100-86)

Indexed As: Singh (Karnail) v. Minister of Employment and Immigration

Federal Court of Canada

Trial Division

Rouleau, J.

January 31, 1986.

Summary:

K. Singh was found not to be a Convention refugee by the Minister of Employment and Immigration and then by the Immigration Appeal Board without a hearing. An exclusion order and departure notice were issued. K. Singh applied to have his case referred back to the Immigration Appeal Board for redetermination of his claim for Convention refugee status on the basis that the board did not follow the principles of fundamental justice prescribed by s. 7 of the Charter. He also applied, inter alia, for a writ of prohibition to prevent the Minister of Employment and Immigration from taking any further measures until his claim was referred back to the board for redetermination.

The Federal Court of Canada, Trial Division, held that the decision of the Immigration Appeal Board was only reviewable by the Federal Court of Appeal pursuant to s. 28 of the Federal Court Act and therefore the Trial Division lacked jurisdiction to review the board's decision. The Trial Division also refused to grant the order prohibiting the Minister from proceeding to act on the exclusion order.

Aliens - Topic 1334

Admission - Refugees - Appeals - Scope of review - Decision of Immigration Appeal Board - The Federal Court of Canada, Trial Division, held that a determination by the Immigration Appeal Board under s. 71(1) of the Immigration Act that a person is not a Convention refugee is reviewable only by the Federal Court of Appeal under s. 28 of the Federal Court Act and not reviewable by the Trial Division - See paragraphs 1 to 4.

Aliens - Topic 1703

Exclusion and expulsion - Immigration - Exclusion - Prohibition order pending review of exclusion order - The Immigration Appeal Board affirmed the Minister of Employment and Immigration's decision that K. Singh was not a Convention refugee - An exclusion and departure notice was issued - K. Singh sought to prohibit the Minister from acting on the exclusion notice pending a redetermination of his case by the Immigration Appeal Board - The Federal Court of Canada, Trial Division, refused to grant prohibition stating that "a fortiori such a writ cannot issue after the initial inquiry has been concluded and an exclusion order made" - See paragraph 5.

Courts - Topic 4021

Federal Court of Canada - Jurisdiction - Trial Division - Relief against federal boards - Immigration Appeal Board - K. Singh was found not to be a Convention refugee by the Minister of Employment and Immigration and by the Immigration Appeal Board - He applied to have his case referred back to the Immigration Appeal Board for redetermination of his claim on the basis of alleged Charter infringements - The Federal Court of Canada, Trial Division, held that it did not have jurisdiction to review the board's decision because the decision was reviewable only by the Federal Court of Appeal pursuant to s. 28 of the Federal Court Act - See paragraphs 1 to 4.

Courts - Topic 4101

Federal Court of Canada - Jurisdiction - Federal Court of Appeal - S. 28 appeal - Scope of - Immigration Appeal Board - The Federal Court of Canada, Trial Division, held that a determination by the Immigration Appeal Board under s. 71(1) of the Immigration Act that a person is not a Convention refugee is reviewable only by the Federal Court of Appeal under s. 28 of the Federal Court Act and not by the Trial Division - See paragraphs 1 to 4.

Practice - Topic 5665

Judgments and orders - Declaratory judgments - Application - How made - The Federal Court of Canada, Trial Division, stated that "it has become trite law now that such a remedy [declaratory relief] cannot be obtained by way of a Notice of Motion" - See paragraph 6.

Cases Noticed:

Singh et al. v. M.E.I., [1985] 1 S.C.R. 177; 58 N.R. 1; 17 D.L.R.(4th) 422, refd to. [para. 1].

Kee v. M.E.I., 26 A.C.W.S.(2d) 51, refd to. [para. 5].

Sadique v. M.M.I., [1974] 1 F.C. 719, refd to. [para. 5].

Wilson v. Minister of Justice, 60 N.R. 194, refd to. [para. 6].

Statutes Noticed:

Immigration Act, S.C. 1976, c. 52, sect. 45, sect. 71(1) [para. 3].

Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, sect. 28 [para. 4].

Counsel:

Gerald W. Postelnik, for the petitioner;

Suzanne Marcoux-Paquette, for the respondent.

Solicitors of Record:

G.W. Postelnik & Associates, Montreal, Quebec, for the petitioner;

F. Iacobucci, Q.C., Deputy Attorney General of Canada, for the respondent.

This application was heard at Montreal, Quebec, on January 27, 1986, before Rouleau, J., of the Federal Court of Canada, Trial Division, who delivered the following decision on January 31, 1986: