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Winston Sylvester Harding (Applicant) v.
Minister of Manpower and Immigration (Respondent)
Court of Appeal, Jackett CJ., Thurlow J. and Sweet D.J.—Toronto, October 27, 1972.
Immigration—Immigration Appeal Board—Deportation order—Dismissal of appeal from—Application to re-open to hear new evidence—Whether humanitarian reason for reversing decision—Judicial review.
JUDICIAL review.
D. H. Kayfetz for applicant.
E. A. Bowie for respondent.
JACKETT CJ. (orally)—This is an application under section 28 of the Federal Court Act to set aside a judgment of the Immigration Appeal Board refusing to re-open the hearing of the applicant's appeal under the Immigration Appeal Board Act, R.S. 1970 1 , c I-3.
The Board had a discretion to re-open that hearing to hear further evidence concerning the exercise of its powers under section 15 of the Act to stay or quash the deportation order on compassionate or humanitarian considerations.
The application to the Board was based on a proposal to adduce evidence which, it was con tended, would show that the diagnosis of mental disease made when the applicant was in a mental hospital in 1969 was made in error.
On my reading of the Board's reasons for dismissing the motion for a new hearing, the Board erred in treating the motion as a motion for a new hearing as to the validity of the deportation order rather than for a new hearing with reference to the exercise of the section 15 powers.
However, notwithstanding this error in their consideration of the matter, it does not seem to me that this is a case for setting aside the Board's decision and ordering a new hearing of the application. Whatever the purpose of the new hearing, in my view, the applicant was not entitled to obtain one unless, in the opinion of the Board, the new evidence to be adduced would probably, if not almost conclusively, establish facts that would change the result of the previous hearing. I cannot find any error in law in the conclusion of the Board that the proposed evidence would do no more than reveal "a degree of conflict of opinion between medical practitioners" concerning the correct ness of the 1969 diagnosis. This is not sufficient to warrant a new hearing.
I express no opinion as to whether the fact that the new evidence was designed to establish would have warranted consideration by the Board of an exercise of their powers under section 15.
I am of the opinion that the application should be dismissed.
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THURLOW J.—I am of the same opinion.
To my mind the reasons of the Board show that the Board was not impressed with the new evidence proposed by the applicant and in par ticular did not regard it as sufficient to show that there was anything wrong with the original diagnosis of the applicant's illness. Such a con clusion was one of fact that was clearly open to the Board and in this situation I do not think it can be said that the Board's disposition of the applicant's motion proceeded from any error of law on their part even though their reasons do not clearly show an appreciation that the motion was to reopen and review their conclu sion with respect to the exercise of discretion under section 15 of the Immigration Appeal Board Act rather than with respect to the validi ty of the deportation order.
I would dismiss the motion.
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SWEET D.J. concurred.
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