IMM-1273-98
The Minister of Citizenship and Immigration (Applicant)
v.
Christopher Michael Harrison (Respondent)
Indexed as: Canada (Minister of Citizenship and Immigration)v. Harrison (T.D.)
Trial Division, Reed J."Vancouver, September 4 and 23, 1998.
Citizenship and Immigration — Exclusion and removal — Immigration inquiry process — Judicial review of IAD decision to reopen earlier decision dismissing appeal from deportation order — Respondent deported before hearing of motion to reopen — Immigration Act, subsection 70(1) providing for appeals to IAD by permanent residents — Definition of —permanent resident— including person who has not ceased to be permanent resident pursuant to s. 24 — S. 24 conditions under which person ceasing to be permanent resident including when removal order made against that person — Application dismissed — Minister relying on obiter dicta in Grillas v. M.M.I. (S.C.C.) for proposition Board can reopen appeal until deportation order executed — Bizarre interpretation if jurisdiction to reopen existing, but can be terminated by execution of deportation order by party to litigation — S. 75 contemplating return of person who has filed appeal of removal order, but removed from Canada — Incongruous for IAD to have jurisdiction to hear appeal after individual deported, but not to have jurisdiction to decide upon motion to reopen hearing in similar circumstances — S. 24(1) not assisting analysis: if person ceasing to be permanent resident when removal order made, IAD would be without jurisdiction to reopen in every case once removal order made — If IAD having jurisdiction to reopen to hear new evidence when equitable jurisdiction in issue, having jurisdiction to reopen when ground failure of natural justice with respect to making of decision itself.
This was an application for judicial review of a decision of the Immigration and Refugee Board, Appeal Division (IAD), which reopened an earlier IAD decision dismissing an appeal by the respondent from a deportation order. A deportation order had issued against the respondent because he had been convicted of a criminal offence. His appeal against the deportation order was dismissed for want of prosecution, and he was subsequently arrested. He sought leave to have the IAD reopen his appeal, and filed a motion for a stay of the removal order. The latter motion was dismissed, and he was deported. Subsequently the IAD granted the motion to reopen the appeal. On judicial review, that decision was quashed without reasons and the motion remitted to the IAD for "redetermination in accordance with the law". No direction was given as to the law that the IAD was to apply. At the second hearing of the motion, the IAD decided to reopen the appeal. Immigration Act , subsection 70(1) provides for appeals to the IAD by permanent residents either on a question of law or fact, or mixed law and fact, or having regard to all the circumstances. A permanent resident is defined in section 2 as a person who has been granted landing in Canada, has not become a citizen, and has not ceased to be a permanent resident pursuant to section 24 or 25.1. Subsection 24(1) sets out the conditions under which a person ceases to be a permanent resident, which include when a removal order has been made against that person.
The issue was whether the IAD lacked jurisdiction to reopen the appeal because the respondent had ceased to be a permanent resident at the date of the IAD decision granting the reopening.
Held, the application should be dismissed.
The statement of Mr. Justice Abbott in Grillas v. Minister of Manpower and Immigration relied upon by the Minister for the proposition that the Board could reopen an appeal "until a deportation order has actually been executed" was obiter dicta because the individual in that case had not been deported, and the Board's equitable jurisdiction was not in issue.
It would be a bizarre interpretation of the legislation and case law that jurisdiction to reopen exists, but such jurisdiction can be terminated by one of the parties to the litigation, that is, by the applicant Minister executing the deportation order.
In addition, section 75 is predicated on the IAD having jurisdiction to hear an appeal of a deportation order, even after the order has been executed, provided that the appeal was filed before the individual was deported. While there have been no Federal Court decisions on this section, it contemplates that an individual who has filed an appeal of a removal order with the IAD, but who is nevertheless deported from Canada before the appeal is heard, may be permitted to re-enter to appear before the IAD when the appeal is finally heard. Section 55 permits the return of individuals to appear before the IAD and Rule 34 of the Immigration Appeal Division Rules requires that notice be given to the Minister of any request to return and the Minister be given an opportunity to make submissions on the request. It would seem incongruous for the IAD to have jurisdiction to hear an appeal after an individual has been deported, but not to have jurisdiction to decide upon a motion to reopen a hearing in similar circumstances. In both situations the issues that are raised could have bearing on the decision as to whether or not the individual should have been removed from Canada. The Minister's execution of a deportation order does not terminate an appeal that has already been filed, nor should it terminate a motion to reopen a hearing.
The statutory provision respecting the IAD's jurisdiction defining when a person ceases to be a permanent resident did not assist in the analysis. If subsection 24(1) is read literally, a person ceases to be a permanent resident when a removal order has been made, not when it has been executed. Thus in every case, the IAD would be without power to reopen once the removal order was made.
The decision to reopen was based on the fact that there had been a breach of natural justice: inadequate notice to allow the respondent an opportunity to appear at the IAD hearing. If the IAD has jurisdiction to reopen to hear new evidence when its equitable jurisdiction is in issue, surely it has jurisdiction to reopen when the ground is a failure of natural justice with respect to the making of the decision itself.
statutes and regulations judicially considered
Immigration Act, R.S.C., 1985, c. I-2, ss. 2, 24 (as am. by S.C. 1995, c. 15, s. 4), 25.1 (as enacted by S.C. 1992, c. 49, s. 14), 27(1)(d)(i), (ii), 55 (as am. idem, s. 45), 70(1) (as am. by S.C. 1995, c. 15, s. 13), (a) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18), (b) (as am. idem), 75 (as am. idem).
Immigration Appeal Board Act, S.C. 1966-67, c. 90.
Immigration Appeal Division Rules, SOR/93-46, R. 34.
cases judicially considered
distinguished:
Grillas v. Minister of Manpower and Immigration, [1972] S.C.R. 577; (1971), 23 D.L.R. (3d) 1; Ramkissoon v. Minister of Manpower and Immigration, [1978] 2 F.C. 290; (1977), 82 D.L.R. (3d) 406 (C.A.); Canada (Minister of Citizenship and Immigration) v. Binns (1996), 122 F.T.R. 56 (F.C.T.D.).
referred to:
Duckworth v. Canada (Minister of Citizenship & Immigration) (1997), 41 Imm. L.R. (2d) 26 (I.A.D.); Deehan v. Canada (Minister of Citizenship & Immigration) (1992), 16 Imm. L.R. (2d) 233 (I.A.D.).
APPLICATION for judicial review of Immigration and Refugee Board, Appeal Division's decision (Harrison v. Canada (Minister of Citizenship and Immigration), [1998] I.A.D.D. No. 408 (QL)) to reopen an earlier IAD decision (Harrison v. Canada (Minister of Employment and Immigration), [1993] I.A.D.D. No. 198 (QL)) dismissing the respondent's appeal from a deportation order. Application dismissed.
appearances:
Leigh A. Taylor for applicant.
Rod H. G. Holloway for respondent.
solicitors of record:
Deputy Attorney General of Canada for applicant.
Rod Holloway, Vancouver, for respondent.
The following are the reasons for order rendered in English by
Reed J.: This is an appeal by the applicant Minister of Citizenship and Immigration of a decision of the Appeal Division of the Immigration and Refugee Board (IAD) [[1998] I.A.D.D. No. 408 (QL)]. The decision dated February 17, 1998, reopened an earlier IAD decision [[1993] I.A.D.D. No. 198 (QL)] that the IAD had made dismissing an appeal to it by the respondent, Christopher Michael Harrison. The respondent was no longer in the country at the time of the February 17, 1998 decision. He had been deported. The applicant argues that because of that fact the IAD was without jurisdiction to reopen the respondent's appeal.
The history of the respondent's appeal prior to the February 17, 1998 decision is not directly relevant since no argument has been pursued based thereon. I will describe that history, however, in order to provide a more complete picture of the factual context of the present application.
BACKGROUND FACTS
The respondent was born on June 17, 1966 in England. He was landed in Canada as an accompanying dependant of his parents on June 11, 1978. On July 11, 1991 he was ordered deported from Canada because he had been convicted of a criminal offence and was a person described in subparagraphs 27(1)(d)(i) and (ii) of the Immigration Act, R.S.C., 1985, c. I-2. He filed an appeal of that decision with the IAD, and a hearing of his appeal was scheduled for February 3 and 4, 1992. On that date neither he nor any representative on his behalf appeared. An order issued dismissing his appeal for want of prosecution on February 13, 1992.
On March 23, 1992 the respondent was arrested. On March 24, 1992, he sought leave to have the IAD reopen his appeal. He stated that he had not appeared before the IAD on February 4, 1992 because he had received only one day's notice of that hearing and had not been able to get to Calgary in time, or to contact his lawyer, despite efforts to do so. He filed a motion for a stay of the removal order. That motion was dismissed on April 2, 1992, and he was deported to the United Kingdom on April 6, 1992.
On August 3, 1993 the IAD granted the March 24, 1992 motion and reopened the respondent's appeal. The Minister filed a leave application seeking to commence a judicial review proceeding to have the IAD decision to reopen set aside on the ground that the IAD was without jurisdiction because the respondent had ceased to be a permanent resident at the date of the IAD decision granting the reopening. The judicial review application was heard on September 16, 1994. The respondent was not represented at that hearing. The judge who heard the application did not give reasons but signed an order, drafted by counsel for the applicant, quashing the IAD decision of August 3, 1993, and remitting the motion to reopen back to the IAD for "redetermination in accordance with the law". As noted, no direction was given to the IAD as to the law that it was to apply, and the order was phrased as being dependent upon "it appearing that" certain facts and conclusion existed.
The IAD commenced hearing the motion to reopen on referral back on March 15, 1996, and was asked by the Minister to deal first with the preliminary question of whether the IAD had jurisdiction to entertain the motion to reopen. A decision on that preliminary issue was rendered on January 31, 1997. The IAD set out a careful analysis of what it understood to be the relevant law and concluded that jurisdiction existed. The motion to reopen was dealt with on its merits on January 22, 1998 and a decision to reopen was rendered on February 17, 1998. As noted, it is this decision that is the subject of the present proceeding, although the focus of the argument is the jurisdictional issue dealt with by the earlier decision of January 31, 1997.
JURISPRUDENCE/APPLICABLE LAW
I will first set out the relevant statutory framework. Subsection 70(1) [as am. by S.C. 1995, c. 15, s. 13; R.S.C., 1985 (4th Supp.), c. 28, s. 18] of the Immigration Act, R.S.C., 1985, c. I-2, provides for appeals to the IAD by permanent residents:
70. (1) . . . where a removal order or conditional removal order is made against a permanent resident or against a person lawfully in possession of a valid returning resident permit issued to that person pursuant to the regulations, that person may appeal to the Appeal Division on either or both of the following grounds, namely,
(a) on any ground of appeal that involves a question of law or fact, or mixed law and fact; and
(b) on the ground that, having regard to all the circumstances of the case, the person should not be removed from Canada. [Underlining added.]
The jurisdiction conferred by paragraph (a) above is often referred to as the IAD's legal jurisdiction, i.e., jurisdiction to determine whether the removal order or conditional removal order is valid. The jurisdiction conferred by paragraph (b) is often referred to as the IAD's equitable jurisdiction, i.e., jurisdiction to decide whether, despite a valid removal order, that order should be executed.
A permanent resident is defined in section 2 of the Act as a person who has been granted landing in Canada, has not become a citizen, and has not ceased to be a permanent resident pursuant to section 24 [as am. by S.C. 1995, c. 15, s. 4] or 25.1 [as enacted by S.C. 1992, c. 49, s. 14] of the Act. Subsection 24(1) sets out the conditions under which a person ceases to be a permanent resident:
24. (1) A person ceases to be a permanent resident when
(a) that person leaves or remains outside Canada with the intention of abandoning Canada as that person's place of permanent residence; or
(b) a removal order has been made against that person and the order is not quashed or its execution is not stayed pursuant to subsection 73(1). [Underlining added.]
The jurisdiction is not unlike that previously exercised by the Immigration Appeal Board (predecessor to the IAD) pursuant to the Immigration Appeal Board Act, S.C. 1966-67, c. 90.
The decision on which the Minister mainly relies is Grillas v. Minister of Manpower and Immigration, [1972] S.C.R. 577. In that decision the Supreme Court interpreted the provisions of the Immigration Appeal Board Act as allowing the Board to reopen an appeal even though no express authority was granted for it to do so. Mr. Justice Martland, with whom Mr. Justice Laskin [as he then was] concurred, held that the "equitable" jurisdiction of the Board was a continuing jurisdiction, and not one that was exercised once and for all with the making of the initial decision [at page 590]:
In my view, this "equitable" jurisdiction of the Board, under s. 15(1), is a continuing jurisdiction, and not one which must be exercised once and for all. The intention of the Act was to enable the Board, in certain circumstances, to ameliorate the lot of an appellant against whom a deportation order had lawfully been made. It is in accordance with that intent that the Board should have jurisdiction, in cases which it deems proper, to hear further evidence on the issues involved under s. 15(1), even though it has made an order dismissing the appeal. In my opinion, the Board had jurisdiction to reopen the hearing of the appellant's appeal to permit him to present additional evidence.
Mr. Justice Abbott, in expressing his agreement with Mr. Justice Martland, expressed that agreement as follows [at page 582]:
For the reasons given by my brother Martland, I agree that, until a deportation order has actually been executed, the Board is entitled, as it did in this case, to reopen an appeal, hear new evidence and, if it sees fit to do so, to revise its former decision and exercise its discretion under s. 15 to allow an appellant to remain in Canada. With respect, however, I do not share his view that the Board erred in law in reaching the decision which it did on January 24, 1969. [Underlining added.]
Mr. Justice Judson concurred in Mr. Justice Abbott's decision. The Court was composed of five judges. Mr. Justice Pigeon dissented from the other four, stating that in his view, there was no power to reopen. The above underlined portion of Mr. Justice Abbott's opinion subsequently became important.
The jurisdiction of the Board to reopen was considered by the Federal Court of Appeal in Ramkissoon v. Minister of Manpower and Immigration, [1978] 2 F.C. 290. In that case an individual had been ordered deported; an appeal of that decision was filed. The appellant, however, left Canada voluntarily on March 16, 1975 before his appeal was heard. The Board rendered a decision on the appeal on December 8, 1975, dismissing it. The appellant returned to Canada around March 13, 1976, was ordered deported on November 19, 1976 (the second deportation order), and on May 6, 1977 he filed a motion to reopen the earlier appeal that had been the subject of the December 8, 1975 decision. He also filed an appeal of the second deportation order. The Board refused both of these applications and a judicial review of those refusals was commenced. When dealing with the Board's decision refusing to reopen the appeal, Mr. Justice Heald, speaking for the Court, stated that the Board had correctly interpreted its continuing jurisdiction to reopen an appeal as ending once the deportation order was executed. Both the Board and the Court relied on Mr. Justice Abbott's comments in the Grillas case. They also concluded that the appellant's voluntary departure from Canada in March of 1975 was a voluntary execution of the outstanding deportation order, which underlay the IAB's jurisdiction to hear the motion to reopen [at page 294]:
. . . in my view, on the facts here present, "removal" from Canada to Trinidad by this applicant was accomplished on March 16, 1975 and the effect of that "removal" was to "execute" the first deportation order. Accordingly, it seems to me that the legal effect of the applicant's voluntarily leaving Canada was that he was thereby deprived of any status entitling him to appeal against the first deportation order under the equitable section 15 jurisdiction of the Board. I have formed this opinion after a detailed consideration of the powers conferred upon the Board under the various subsections of section 15 . . . Nowhere in section 15 is the Board clothed with jurisdiction to take any action in cases where the deportation order has been executed. All of the powers conferred upon the Board under section 15 relate to possible action before the execution of the deportation order.
This decision was followed in Canada (Minister of Citizenship and Immigration) v. Binns (1996), 122 F.T.R. 56 (F.C.T.D.), when a decision by the IAD to reopen an appeal before it was under review.
ANALYSIS/CONCLUSION
Counsel for the respondent seeks to distinguish these cases on the following basis: (1) the comment by Mr. Justice Abbott in Grillas, that the Board had equitable jurisdiction to reopen "until a deportation order has actually been executed", is dicta since the duration of the Board's equitable jurisdiction was not in issue in that case; (2) if the Minister's reasoning is correct, the Minister, even though being one of the parties to the appeal, can deprive an appellant of an opportunity to have his or her motion to reopen considered, by executing the removal order; (3) the Ramkissoon and Binns decisions, in any event, were both cases in which the appellant filed a motion to reopen after he had left the country. In the present case the motion to reopen was filed before that event occurred.
I find counsel for the respondent's arguments compelling. The comment of Mr. Justice Abbott in the Grillas decision was dicta. The individual in that case had not been deported. He was still in Canada. The request to reopen the hearing was for the purpose of adducing new evidence that would show grounds for believing that the applicant would be punished for activities of a political character or suffer unusual hardship if the deportation order was executed. An order to reopen the hearing for these purposes would only be necessary and effective before the execution of the deportation order. Thus, Mr. Justice Abbott's comment was a description of the factual situation in front of him, not a decision with respect to the duration of the Board's continuing jurisdiction.
Secondly, it would seem a bizarre interpretation of the legislation and jurisprudence that jurisdiction to reopen exists, but such jurisdiction can be terminated by one of the parties to the litigation, that is, by the applicant Minister executing the deportation order. It may well be that when an individual leaves the country voluntarily, without having sought to reopen an IAD decision it can be inferred that the individual is acquiescing in the decision and abandoning any claim to have the appeal reopened. This may also be so when an individual is deported without filing a motion to reopen. But it cannot be the case when a motion to reopen has been filed before the deportation order is executed. The Board's jurisdiction is invoked at the date that the motion to reopen is filed.
In addition, section 75 [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18] of the Immigration Act is predicated on the IAD having jurisdiction to hear an appeal of a deportation order, even after the order has been executed, provided that the appeal was filed before the individual was deported:
75. Where a person against whom a removal order or conditional removal order has been made is removed from or otherwise leaves Canada and informs the Appeal Division in writing of his desire to appear in person before the Appeal Division on the hearing of the appeal against the order, the Appeal Division may, if an appeal has been made, allow the person to return to Canada for that purpose under such terms and conditions as it may determine.
There have been no decisions on this section of the Act, however, it contemplates that an individual who has filed an appeal of a removal order with the IAD, but who is nevertheless deported from Canada before the appeal is heard, may be permitted to re-enter to appear before the IAD when the appeal is finally heard. While there are no Federal Court decisions interpreting that provision, there are reported IAD decisions referring to it: Duckworth v. Canada (Minister of Citizenship & Immigration) (1997), 41 Imm. L.R. (2d) 26, and Deehan v. Canada (Minister of Citizenship & Immigration) (1992), 16 Imm. L.R. (2d) 233. Section 55 [as am. by S.C. 1992, c. 49, s. 45] of the Immigration Act allows for the return of individuals to appear before the IAD and Rule 34 of the Immigration Appeal Division Rules, SOR/93-46, requires that notice be given to the Minister of any request to return and the Minister be given an opportunity to make submissions on the request.
It would seem incongruous for the IAD to have jurisdiction to hear an appeal after an individual has been deported but not to have jurisdiction to decide upon a motion to reopen a hearing in similar circumstances. In both situations the issues that are raised could have bearing on the decision as to whether or not the individual should have been removed from Canada. The Minister's execution of a deportation order does not terminate an appeal that has already been filed, nor should it terminate a motion to reopen a hearing.
Lastly, I am not persuaded that the statutory provision respecting the IAD's jurisdiction defining when a person ceases to be a permanent resident assists in the analysis. If subsection 24(1) is read literally a person ceases to be a permanent resident when a removal order has been made, not when it has been executed. Thus, in every case the IAD would be without power to reopen once the removal order was made.
While the decision to reopen in this case was not based on facts directly pertinent to the equitable jurisdiction of the IAD, it was based on the fact that the IAD found there had been a breach of natural justice: inadequate notice to allow the respondent an opportunity to appear at the IAD hearing. If the IAD has jurisdiction to reopen to hear new evidence when its equitable jurisdiction is in issue, surely it has jurisdiction to reopen when the ground is a failure of natural justice with respect to the making of the decision itself.
In the absence of a Federal Court of Appeal decision dealing with the particular factual situation that exists in this case, I cannot interpret the provisions of the Immigration Act as dictating that jurisdiction is terminated when a deportation order is executed, if the individual has filed a motion to reopen before the execution of the deportation order. If this interpretation is incorrect, it is easy to foresee a situation in which stays of deportation orders could become routine, in cases where individuals seek to reopen on the ground of inadequate notice, in order to preserve the IAD's jurisdiction and thereby prevent irreparable harm to those individuals.
For the reasons given, this application will be dismissed.
As agreed with counsel, the issuing of a final order will be deferred for seven days to allow the applicant an opportunity to make representations on the possible certification of a question.