A-149-77
Ghebregziabher Woldu (Applicant)
v.
Minister of Manpower and Immigration
(Respondent)
Court of Appeal, Heald and Le Dain JJ. and
MacKay D.J.—Toronto, October 25 and 27, 1977.
Judicial review — Immigration — Sworn declaration
accompanying notice of appeal from deportation indicating
intent to submit amended declaration — No application for
extension beyond time limits — Appeal pursuant to s. 11(3) of
Immigration Appeal Board Act dismissed by Board without
waiting for or considering amended declaration — Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28 — Immigra
tion Appeal Board Act, R.S.C. 1970, c. 1-3, s. 11(2),(3) as
amended by S.C. 1973-74, c. 27, s. 5 — Immigration Appeal
Board Rules 4, 17.
This section 28 application contends that the Immigration
Appeal Board denied applicant natural justice in its consider
ation of his claim to refugee status and that it erred in holding
that it could not rehear the claim. In the sworn declaration
accompanying his notice of appeal against the deportation
order, applicant indicated an intention to submit an amended
declaration within a week. The Board, however, disposed of his
appeal pursuant to section 11(3) of the Immigration Appeal
Board Act without waiting for or considering the amended
declaration.
Held, the application is dismissed.
Per Heald J.: The decision of this Court in Lugano v.
Minister of Manpower and Immigration [1977] 2 F.C. 605
applies with equal force to the facts and circumstances of the
present case. That case clearly held that the Board has no au
thority under section 11(3) to permit the filing of additional
material under section 11(2) necessitating a new decision on
the basis of a consideration of the original declaration as
supplemented by the amended declaration.
Per Le Dain J.: There is judicial opinion suggesting that a
tribunal that recognizes its failure to observe the rules of
natural justice may treat its decision as a nullity and rehear the
case. The applicant, however, has failed to establish any denial
of natural justice in the Board's disposition of the appeal. The
Board does not have authority to permit the completion or
perfection of a notice of appeal beyond a statutorily imposed
maximum period and it has a duty to consider the sworn
affidavit without delay. Since the Board, acting as it did, was
carrying out that duty, it cannot be said that it failed to
consider applicant's declaration or otherwise denied him natu
ral justice. Although it is unlikely that Rule 17 is intended to
have application to a section 11(3) appeal, any right to amend
could not have been intended to permit an effective qualifica-
tion of the requirements set down in Rule 4 and cannot be
permitted to qualify the statutory duty to consider a declaration
forthwith.
Lugano v. Minister of Manpower and Immigration [1977]
2 F.C. 605, applied.
APPLICATION.
COUNSEL:
Laurence Kearley for applicant.
T. James and Mrs. K. Braid for respondent.
SOLICITORS:
Laurence Kearley, c/o Parkdale Community
Legal Services, Toronto, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
delivered orally in English by
HEALS J.: In my opinion, the decision of this
Court in the case of Lugano v. Minister of Man
power and Immigration ([1977] 2 F.C. 605)
applies with equal force to the facts and circum
stances present in the case at bar. In the Lugano
case, the applicant sought a "re-opening" of the
original appeal to the Immigration Appeal Board
to receive affidavits to supplement the declaration
that was filed under section 11(2) of the Immigra
tion Appeal Board Act. In the case at bar, the
application was to "re-hear" applicant's claim to
refugee status and at that hearing, to allow the
filing of an amended declaration under section
11(2).
Whether the new hearing is called a "re-open
ing" as in the Lugano case or a "re-hearing" as in
this case, the practical result would be the same—
namely, to permit the filing of additional material
under section 11(2) necessitating a new decision
on the basis of a consideration of the original
declaration as supplemented by the amended dec
laration. The Lugano decision clearly holds that
under section 11(3) the Board has no such au
thority. At pages 607 and 608 of the judgment, the
Chief Justice states:
This section 28 application has been argued on the basis that
the question is whether, having rendered such a judgment, the
Board has authority under the statute, express or implied, to set
aside that judgment, to re-open the proceedings to receive
affidavits to supplement the declaration that was filed under
section 11(2) and to deliver a new decision under section 11(3)
on the basis of a consideration of the original declaration as so
supplemented.
In my view, a reading of section 11(3) establishes that the
Board has no such authority. That provision requires a quorum
of the Board to "forthwith consider the declaration referred to
in subsection (2)" and if "on the basis of such consideration", it
reaches a certain conclusion, to "allow the appeal to proceed"
and, in any other case, to "refuse to allow the appeal to
proceed" and "thereupon direct that the order of deportation be
executed as soon as practicable."
As I read section 11(3),
(a) a quorum of the Board is required to act "forthwith",
and
(b) what it is required to do forthwith is
(i) to consider the declaration referred to in section 11(2)
(which is a declaration that was contained in or accom
panied the notice of appeal), and
(ii) on the basis of that consideration either
(A) allow the appeal to proceed, or
(B) refuse to allow the appeal to proceed and direct that
the deportation order be executed as soon as practicable.
In the event that the Board refuses to allow the appeal to
proceed, as it has done in this case, in my view, section 11(3) is
so worded as to exclude any further consideration of the appeal.
I am supported in this view, in my opinion, by the fact that the
right of appeal is expressly made "Subject to subsections (2)
and (3)" by section 11(1), which creates it. Reading section
11(1) with section 11(3), in my view, such a decision termi
nates the appeal.
In my view, any implied right in the Board to re-open and
supplement the section 11(2) declaration during an unlimited
time in the future would be contrary to the apparent purpose of
Parliament when it stipulated, by section 11(2), that the "dec-
laration" be contained in, or accompany, the notice of appeal,
which must be filed within, at the most, six days of the making
of the deportation order. (Compare Immigration Appeal Board
Rule 4(2).) Such requirement, together with the provision in
section 11(3) for a "forthwith" consideration of the matter on
the basis of such declaration and disposition of the question
whether the appeal should thereupon be terminated, is quite
inconsistent, in my view, with the applicant's submission that
the matter may be regarded as a continuing proceeding in
which there may be an application for a new hearing and new
evidence at any future time.
Once an appeal has been terminated by a section 11(3)
decision, I am of opinion that it remains terminated until the
decision terminating it is set aside; and, in the absence of
express statutory authority, a tribunal cannot set aside its own
decisions. As I understand it, what the Supreme Court of
Canada decided in Grillas v. M.M.&I. ([1972] S.C.R. 577)
was that there was a continuing authority to grant section 15
relief, which was not terminated by an earlier refusal.* There
was no question of setting aside an earlier decision of the
Board. What was held, in effect, was that, even though relief
was refused on one body of evidence, there was still jurisdiction
to grant relief on other evidence.
* Compare section 26(3) of the Interpretation Act, R.S.C.
1970, c. I-23, which reads:
(3) Where a power is conferred or a duty imposed the
power may be exercised and the duty shall be performed
from time to time as occasion requires.
I adopt the reasoning of the Chief Justice as
above-quoted and would, accordingly, dismiss the
section 28 application.
* * *
The following are the reasons for judgment
delivered orally in English by
LE DAIN J.: I agree that the section 28 applica
tion should be dismissed for the reasons given by
my brother Heald.
The applicant's case, as I understand it, is that
in the sworn declaration accompanying his notice
of appeal against the deportation order he indicat
ed an intention to submit an amended declaration
within a week; that the Board, in disposing of his
appeal pursuant to section 11(3) of the Immigra
tion Appeal Board Act without waiting for or
considering the amended declaration, denied him
natural justice in the consideration of his claim to
refugee status; and that in these circumstances the
Board erred in law in holding that it could not
rehear the claim.
Notwithstanding the general principle, affirmed
in the Lugano case, that an administrative tribunal
does not have the power, in the absence of express
statutory authority, to set aside its decision, there
is judicial opinion to suggest that where a tribunal
recognizes that it has failed to observe the rules of
natural justice it may treat its decision as a nullity
and rehear the case. See Ridge v. Baldwin [1964]
A.C. 40 at p. 79; R. v. Development Appeal
Board, Ex parte Canadian Industries Ltd. (1970)
9 D.L.R. (3d) 727 at pp. 731-732, and compare
Polsuns v. Toronto Stock Exchange [1968] S.C.R.
330 at p. 340. It is perhaps arguable that this
possible qualification to the general principle
should apply even to a decision pursuant to section
11(3) of the Immigration Appeal Board Act
despite the special considerations applicable to
that decision which were emphasized in the
Lugano case. There was no issue of a denial of
natural justice in the Lugano case. But the appli
cant has failed to establish that there was any
denial of natural justice in the manner in which
the Board disposed of his appeal in the present
case.
In his sworn declaration served on the Special
Inquiry Officer on November 23, 1976, the day
the deportation order was made, the applicant
stated: "Full and more detailed reasons for my
claim to refugee status will be set out in an
Affidavit which will be filed with the Immigration
Appeal Board within a week." The Board received
the declaration on November 30. A quorum of the
Board considered it on December 2, as required by
section 11(3) of the Act, and pronounced its deci
sion on December 6, refusing to allow the appeal
to proceed. The amended declaration was appar
ently delivered to the Board on December 6 but it
appears to be clear from the Board's reasons for
decision on the motion to rehear that the quorum
of the Board did not consider the amended
declaration.
By section 11 of the Immigration Appeal Board
Act a notice of appeal based on a claim to refugee
status must contain or be accompanied by a sworn
declaration setting out the claim. By section 19 of
the Act an appellant must give notice of appeal in
such manner and within such time as is prescribed
by the Rules of the Board. Rule 4 of the Immigra
tion Appeal Board Rules provides that a notice of
appeal must be served upon the Special Inquiry
Officer "within twenty-four hours of service of the
deportation order or within such longer period not
exceeding five days as the Chairman in his discre
tion may allow". Rule 17, under the heading
"Hearings of Appeals", provides that the Board
may "allow amendments to be made to any written
submission". Section 11(3) of the Act provides
that upon receipt by the Board of a notice of
appeal based on a claim to refugee status, a
quorum of the Board shall forthwith consider the
declaration. The conclusion to be drawn from
these provisions is that the Board does not have
authority to permit the completion or perfection of
a notice of appeal beyond a maximum period of six
days from the service of the deportation order, and
that it has a statutory duty to consider the sworn
declaration without delay. In acting as it did in the
present case the Board was carrying out that duty.
The statement in the sworn declaration was not an
application for an extension of time for serving a
notice of appeal nor for leave to amend the sworn
declaration, but a statement of what the applicant
intended to do further to his notice of appeal.
There was, therefore, nothing for the Board to rule
on. There is no doubt that the Chairman of the
Board could have permitted an extension of time
for filing a notice of appeal up to a maximum of
five additional days to enable the applicant to file
an amended declaration. But the applicant sought
to file the amended declaration some two weeks
after service of the deportation order. I seriously
question whether Rule 17, which appears with
provisions applicable to the hearing of appeals that
are allowed to proceed, is intended to have any
application to the disposition of an appeal pursu
ant to section 11(3), but in any event I am satis
fied that any right to amend could not have been
intended to permit an effective qualification of the
requirements laid down by Rule 4. Further, it
cannot be permitted to qualify the statutory duty
to consider a declaration forthwith. In considering
the declaration on December 2, two days after it
was received and more than a week after the date
of its service, the quorum of the Board was carry
ing out this duty. It cannot be said, therefore, that
the Board failed to consider the applicant's decla
ration or otherwise denied him natural justice in
the disposition of his appeal pursuant to section
11(3).
* * *
MACKAY D.J.: I agree with the reasons and
conclusions of my brother Heald and also with the
reasons of my brother Le Dain.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.