A-171-77
Bibi Rahiman Ali (Applicant)
v.
Minister of Manpower and Immigration
(Respondent)
Court of Appeal, Heald and Urie JJ. and MacKay
D.J.—Toronto, November 24; Ottawa, December
13, 1977.
Judicial review Immigration Deportation Refusal
by Immigration Appeal Board for extension of time for filing
appeal — Whether or not extension should be allowed —
Applicant returned to Canada after having been deported —
Applicant informed she had no right of appeal — Applicant
was permanent resident before first deportation order executed
— Whether or not an appeal would lie — Immigration Act,
R.S.C. 1970, c. I-2, ss. 2, 18(1)(e)(ix) — Immigration Appeal
Board Act, R.S.C. 1970, c. I-3, s. 11(1)(a) as amended by S.C.
1973-74, c. 27, s. 5 — Immigration Appeal Board Rules,
SOR/67-559, Rule 4 — Immigration Inquiries Regulations,
SOR/67-621 as amended by SOR/73-470, s. 12(b).
Applicant returned to Canada after the execution of a depor
tation order without either a ministerial permit or the Minis
ter's permission. A Special Inquiry Officer, making a second
deportation order because of applicant's return, informed appli
cant that she had no right of appeal to the Immigration Appeal
Board. Applicant argues that an appeal did lie and the Special
Inquiry Officer accordingly violated section 12(b) of the Immi
gration Inquiries Regulations. The Immigration Appeal Board
dismissed an application for an order extending the time for
filing an appeal from the second deportation order for want of
jurisdiction. That decision forms the subject of this application
for judicial review.
Held, the application is dismissed. The application cannot
succeed because the Immigration Appeal Board does not have
the power to extend the time for filing a notice of appeal
beyond the time set out in Rule 4 of the Immigration Appeal
Board Rules. Moreover, applicant's last admission to Canada
before the second deportation order must have been a lawful
admission in order to qualify applicant as a "permanent resi
dent" on that date. Since that admission was illegal because it
was contrary to section 35 of the Immigration Act, applicant
was not a permanent resident on the date the second deporta
tion order was made. Since she was not a permanent resident
she had no right of appeal under section 11(1)(a). The Special
Inquiry Officer, therefore, did not breach Regulation 12(b).
Woldu v. Minister of Manpower and Immigration [1978]
2 F.C. 216, applied.
APPLICATION for judicial review.
COUNSEL:
M. Philip for applicant.
K. Braid for respondent.
SOLICITORS:
Jemmott & Philip, Toronto, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
HEALD J.: This is a section 28 application to
review and set aside a decision of the Immigration
Appeal Board dated March 10, 1977, wherein that
Board refused to grant the applicant an extension
of time within which to appeal a deportation order
made against the applicant on July 15, 1976 (here-
inafter referred to as the second deportation
order).
The applicant, a native of Guyana, was granted
landed immigrant status in Canada on February
15, 1973. A deportation order was made against
the applicant on March 12, 1975 (hereinafter
referred to as the first deportation order) for the
reason that she was a person described in subpara-
graph 18(1)(e)(ii) of the Immigration Act in that
she had been convicted of an offence under the
Criminal Code of Canada. The applicant appealed
the first deportation order to the Immigration
Appeal Board and that Board dismissed the
appeal. The first deportation order was executed
on February 24, 1976. The applicant returned to
Canada without the permission of the Minister or
a Minister's permit on June 26, 1976.
The second deportation order referred to supra,
was made concerning the applicant on July 15,
1976 on the basis that she was a person described
in subparagraph 18(1)(e)(ix) of the Immigration
Act in that: "You have returned to Canada after a
deportation order was made against you at
Toronto, Ontario on the 12th of March, 1975, and
since no appeal against such order was allowed
and you were deported from Canada, since you do
not have the consent of the Minister, it is contrary
to Sec 35 of the Immigration Act to allow you to
remain in Canada."'
At the special inquiry leading to the making of
the second deportation order, the applicant was
informed by the Special Inquiry Officer that she
did not have a right of appeal to the Immigration
Appeal Board. By motion filed on February 24,
1977, the applicant applied to the Immigration
Appeal Board for an order extending the time
within which to file an appeal to the Board from
the second deportation order. By judgment dated
March 10, 1977, the Board dismissed that applica
tion "for want of jurisdiction". It is that decision
of the Board which forms the subject matter of
this section 28 application.
Quite apart from the other issues raised by the
applicant, it is my opinion that this section 28
application cannot succeed because the Immigra
tion Appeal Board does not have the power to
extend the time for filing a notice of appeal beyond
' Section 18(1)(e)(ix) of the Immigration Act reads as
follows:
18. (1) Where he has knowledge thereof, the clerk or
secretary of a municipality in Canada in which a person
hereinafter described resides or may be, an immigration
officer or a constable or other peace officer shall send a
written report to the Director, with full particulars,
concerning
(e) any person, other than a Canadian citizen or a person
with Canadian domicile, who
(ix) returns to or remains in Canada contrary to this
Act after a deportation order has been made against him
or otherwise, or
Sections 35 and 35.1 of the Immigration Act read as follows:
35. Unless an appeal against such an order is allowed, a
person against whom a deportation order has been made and
who is deported or leaves Canada shall not thereafter be
admitted to Canada or allowed to remain in Canada without
the consent of the Minister.
35.1 Every person against whom a deportation order is
made who
(a) is deported or leaves Canada, and
(b) returns to Canada without the consent of the Minister,
is, unless an appeal against the deportation order is allowed,
guilty of an offence and is liable
(c) on conviction on indictment, to imprisonment for two
years, or
(d) on summary conviction, to a fine of not more than five
hundred dollars or to imprisonment for six months or to
both.
the time set out in Rule 4 of the Immigration
Appeal Board Rules 2 . A decision to that effect
was made in this Court in the case of Woldu v.
Minister of Manpower and Immigration'. While it
is true that the facts in the Woldu case (supra)
related to section 11(1)(c) of the Immigration
Appeal Board Act, (a person claiming refugee
status), thus bringing into operation section 11(2)
and section 11(3) of that Act, whereas the case at
bar relates to section 11(1)(a), (a person claiming
status as a permanent resident of Canada), never
theless, Rule 4 is expressly made applicable by its
terms to all appeals under section 11 of the Act
which would, of course, necessarily include appeals
like the present one under section 11(1)(a). I am
also satisfied that Immigration Appeal Board Rule
4 has been validly enacted by the Board pursuant
to the powers given to it under section 8(1) of the
Immigration Appeal Board Act 4 since, in my view,
Rule 4 is not inconsistent with the scheme of the
Act.
A similar view as to the validity of Immigration
Appeal Board Rule 4 was also expressed by
Gibson J. of the Trial Division of this Court in the
case of Minister of Manpower and Immigration v.
Immigration Appeal Board, in re Jaroslav
Holocek 5 .
2 The applicable portions of Immigration Appeal Board Rule
4 read as follows:
4. (1) An appeal made pursuant to section 11 of the Act
shall be instituted by serving a Notice of Appeal upon the
Special Inquiry Officer who presided at the inquiry or fur
ther examination or upon an immigration officer.
(2) Subject to subsection (3), service of a Notice of
Appeal shall be effected within twenty-four hours of service
of a deportation order or within such longer period not
exceeding five days as the Chairman in his discretion may
allow.
3 See page 216 supra.
4 Said section 8(1) reads as follows:
8. (1) The Board may, subject to the approval of the
Governor in Council, make rules not inconsistent with this
Act governing the activities of the Board and the practice
and procedure in relation to appeals to the Board under this
Act.
5 Court No. T-1960-75, dated June 9, 1975. [No written
reasons Ed.]
However, since applicant's counsel raised
another serious and substantive attack on the
validity of the second deportation order which
issue does not appear to have been dealt with by
the Courts, I propose to consider same and to
express my views thereon. The applicant submitted
that the Special Inquiry Officer did not comply
with the provisions of section 12(b) of the Immi
gration Inquiries Regulations which section
requires a Special Inquiry Officer, when making a
deportation order in cases where the person has a
right of appeal under the Immigration Appeal
Board Act, to inform that person of his right to
appeal and to further inform him of the procedure
to be followed in instituting such an appeal 6 . The
applicant further submits that she has such a right
of appeal as a permanent resident of Canada
because section 11(1)(a) of the Immigration
Appeal Board Act provides a right of appeal from
a deportation order to the Immigration Appeal
Board on a question of law or mixed law and fact,
to a permanent resident [emphasis added]. The
applicant then points to the definition of a "perma-
nent resident" as contained in section 2 of the
Immigration Appeal Board Act and reading as
follows:
"permanent resident" means a person who has been granted
lawful admission to Canada for permanent residence under
the Immigration Act;
and states that she meets this definition because
she was granted landed immigrant's status on Feb-
ruary 15, 1973. In support of this submission, the
applicant also points to the definition of "admis-
sion" as contained in section 2 of the Immigration
Act and reading as follows:
"admission" includes entry into Canada, landing in Canada
and return to Canada of a person who has been previously
landed in Canada and has not acquired Canadian domicile;
6 Section 12(b) of the Immigration Inquiries Regulations
reads as follows:
12. A presiding officer who makes a deportation order in
respect of a person shall forthwith upon making such order
(b) where the person is a person described in paragraph
11(1)(a) or (b) of the Immigration Appeal Board Act,
inform him of his right of appeal under that Act and the
procedure to be followed in instituting such an appeal; and
The respondent, while agreeing that, prior to the
making of the first deportation order, the applicant
was a permanent resident of Canada within the
meaning of section 11(1) (a) of the Immigration
Appeal Board Act, submits that since section
11(1)(a) speaks of a person who is a permanent
resident [emphasis added], it does not include
people who were or have been previously perma
nent residents of Canada and who have been valid
ly deported therefrom. It is the respondent's posi
tion that the "admission" referred to in the
definition of "permanent resident" in the Immi
gration Appeal Board Act should not be construed
to include an admission prior to a deportation
order other than the deportation order sought to be
appealed from and that to do otherwise would be
to render section 35 of the Immigration Act
(supra) meaningless.
I agree with these submissions of respondent's
counsel. Section 35 of the Immigration Act makes
it illegal for this applicant to re-enter Canada and
to remain in Canada without the consent of the
Minister. This applicant did not have that consent
and thus returned to Canada illegally. I cannot
believe that it was the intention of Parliament to
continue to accord to a person in such circum
stances the status of "permanent resident" of
Canada. In this case, it is necessary to consider the
status of the applicant as of the date of the second
deportation order, namely, July 15, 1976. As of
that date, she cannot be said to be a "permanent
resident" of Canada since she was illegally in the
country at that time. It matters not, in my view,
that at some previous point in time, she was a
"permanent resident". The operative date is the
date upon which her right to appeal would arise if
she were a permanent resident and that date is the
date of the deportation order she seeks to appeal
against.
Support for this view is to be found in the
definition of "entry" in section 2 of the Immigra
tion Act. Entry is there defined as meaning "the
lawful admission of a non-immigrant to Canada
for a special or temporary purpose and for a
limited time" [emphasis added]. Accordingly,
when the definition of "permanent resident" in
section 2 of the Immigration Appeal Board Act is
read along with the definitions of "admission" and
"entry" as contained in section 2 of the Immigra
tion Act, it is clear to me that the last admission of
the applicant to Canada prior to July 15, 1976,
must have been a lawful admission in order to
qualify her as a "permanent resident" on that
date. Since that last admission was illegal because
it was contrary to section 35 of the Immigration
Act, the applicant was not a permanent resident on
the date of the making of the second deportation
order against her. Since she was not a permanent
resident, she had no right of appeal under section
11(1) (a) and if she had no right of appeal, then
Regulation 12(b) was not breached by the Special
Inquiry Officer. Accordingly, it is my view that
applicant's submission fails and that the section 28
application should be dismissed upon this addition
al ground.
URIE J. concurred.
MACKAY D.J. concurred.
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.