Date: 19980806
Docket: IMM-1726-97
BETWEEN:
HOWARD BEVERLY HALL
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LUTFY J.:
Background
[1] On December 14, 1993, an adjudicator acting under the Immigration Act1 issued a deportation order against the applicant on the ground that he remained a visitor in Canada beyond the authorized date.2
[2] The applicant challenged the adjudicator"s decision on two fronts.
[3] His application for judicial review of the adjudicator"s decision was dismissed by MacKay J. on February 27, 1996.3
[4] The applicant also filed an appeal from the adjudicator"s decision before the Immigration and Refugee Board (Appeal Division) pursuant to subsection 70(1) of the Act.4 This proceeding was kept in abeyance pending the outcome of the application for judicial review. Subsequently, the respondent filed a motion for the dismissal of the appeal on the ground of lack of jurisdiction. The Appeal Division granted the respondent"s motion and dismissed the appeal on April 17, 1997. In response to the applicant"s request pursuant to subsection 69.4(5), the Appeal Division issued written reasons for its disposition of the appeal on September 2, 1997. It is from this decision of the Appeal Division that the applicant now seeks judicial review.
The issues
[5] In the applicant"s view, the Appeal Division erred: (a) in not affording a full hearing in considering the issue of its jurisdiction; and (b) by not properly setting out its reasons for determining that the applicant was not a permanent resident.
Analysis
[6] The respondent"s motion for dismissal on the ground of lack of jurisdiction required the Appeal Division to determine whether the applicant was a permanent resident or, in other words, a person who could appeal the adjudicator"s decision to the Appeal Division pursuant to subsection 70(1). The respondent concedes that this determination is to be made on the basis of a de novo hearing before the Appeal Division which may substitute its decision for that of the adjudicator concerning the applicant"s status in Canada.5
| [7] In urging the Appeal Division to conclude that the applicant was not a permanent resident and to dismiss the appeal for lack of jurisdiction, the only submission of the respondent"s representative was to note the dismissal of the application for judicial review of the adjudicator"s decision. This is how the respondent"s representative stated the issue in relying on the decision of MacKay J.:And finally, and this is the important part [of Justice MacKay"s findings] in terms of our motion before the Board: |
| Finally, in my opinion, the adjudicator did not err in finding she was not satisfied that the Applicant was a Canadian citizen or permanent resident. Thus, the grounds urged for finding a decision to issue an exclusion order was made in error are not established. The application for judicial review is dismissed. |
There isn"t anything more that the Applicant, the Minister, the Department can say than it is our opinion that Mr. Hall doesn"t have any right of appeal under section 70 of the Act, and therefore, the Board lacks the jurisdiction to hear the appeal and the matter ought to be dismissed. Thank you.6
The respondent"s representative called no witnesses. He asked no questions of two of the applicant"s witnesses7 and only two very short questions of his third witness.8 Apart from objecting from time to time to the applicant"s evidence in the de novo hearing before the Appeal Division as being irrelevant in view of the dismissal of the application for judicial review by MacKay J., the respondent"s only other substantive intervention was the representative"s short closing and reply argument:
| Sir, my submissions will be very brief. Before you today we have a motion. The motion, again, is that the appeal be dismissed because of a lack of jurisdiction by the Board. It"s our contention that Mr. Hall is not a permanent resident of Canada. This contention is supported by the decision of Mr. Justice MacKay, and we rest on his decision, and it"s the basis for us forming our opinion. We are of the opinion that no evidence has been brought to suggest that that was not a proper finding by the adjudicator. That decision was reviewed by the Federal Court, and the adjudicator"s decision was upheld by the Federal Court. And it remains our position that Mr. Hall, not being a permanent resident, doesn"t have a right of appeal under section 70, and as such, his appeal ought to be dismissed for lack of jurisdiction.9 |
| ... |
I don"t think that the Panel needs to hear anything further from me, sir. I think that all of the substantive issues were before the Federal Court, and I rest on the Federal Court"s decision.10
[8] It was open to the respondent to rely solely on the applicant"s evidence before the Appeal Division without any substantive cross-examination and without introducing other evidence. It was wrong in law, however, to suggest that the outcome in the Appeal Division was to be dictated by the decision in the application for judicial review. Subsection 69.4(2) invests the Appeal Division, and not the Federal Court of Canada, with "the sole and exclusive jurisdiction to hear and determine all ... questions of jurisdiction".11
[9] During the hearing, the Appeal Division seemed able to resist, at least initially, the narrow view that the judicial review decision of MacKay J. was determinative of the appeal.12 However, when its decision was rendered, the reasons of the Appeal Division disclose otherwise. After a summary analysis of the evidence and with little or no reference to the oral submissions of the applicant"s counsel, the Appeal Division concluded as follows:
| Mr. Justice MacKay, during the judicial review application, dealt with precisely the same issues which counsel for Mr. Hall is asking the Appeal Division to adjudicate upon. As indicated earlier, the evidence provided at the judicial review is essentially the same as was adduced at the hearing before the Appeal Division. Counsel for Mr. Hall is putting forward precisely the same arguments which he made during the judicial review. Mr. Justice MacKay explicitly dealt with these arguments and rejected them. |
| The panel has analyzed the new evidence presented at the hearing and finds that Mr. Hall is not a permanent resident. |
| The Minister"s motion is granted. The appeal brought pursuant to section 70 is dismissed for lack of jurisdiction. |
No other reasons are stated by the Appeal Division for concluding that the applicant was not a permanent resident. The panel did not address one of the applicant"s principal arguments: whether he was an "immigrant" or "landed" upon his arrival in 1949 within the meaning of the then existing provisions of the Immigration Act,13 particularly in light of his adoption in 1953 by a Canadian citizen in accordance with the applicable legislation of British Columbia. The applicant has a statutory right to the reasons of the Appeal Division in this regard.
[10] In the end, the decision made by the Appeal Division appears to have been based on the dismissal by the Federal Court of Canada of the application for judicial review. The panel wrongly referred to "evidence provided at the judicial review", thereby suggesting that it did not make a distinction between its own de novo hearing and the judicial review proceeding, one based on the record before the adjudicator, undertaken by the Federal Court. Even if the Appeal Division made its own determination as to whether the applicant is a permanent resident, and I have serious doubts in this regard, it failed to disclose in writing its own reasons for such a determination. This falls short of the statutory requirement in subsection 69.4(5) and constitutes an error in law. In view of this finding, I need not determine whether the applicant was afforded a full hearing by the Appeal Division.
[11] Accordingly, the respondent"s motion for lack of jurisdiction shall be referred for redetermination before a differently constituted panel of the Appeal Division. That panel should understand its "sole and exclusive jurisdiction to hear and determine all ... questions of jurisdiction" pursuant to subsection 69.4(2) and to state its reasons for its determination pursuant to subsection 69.4(5), if so requested. The panel, "to hear and determine all ... questions of jurisdiction", must receive all relevant evidence even if that evidence had been adduced before the adjudicator or in any other related proceeding. Finally, I adopt the statement of Noël J., as he then was, in Minister of Citizenship and Immigration v. Seneca:14In all logic, the status of a person seeking to appeal an adjudicator"s removal order cannot be invoked to deny the appeal right conferred by paragraph 70(1)(a ) where any conclusion drawn with respect to the appellant"s status is necessarily a consequence of a finding of fact or law made by the adjudicator. The suggestion that the person concerned has no status because he or she was not "lawfully" admitted in the first place cannot take away the right of appeal on that very question.
[12] The applicant"s legal status in Canada has yet to be resolved definitively, some fifty years subsequent to his first arrival here at the age of three months. His Canadian conviction in 1969, for which he has since been pardoned, and his fine of "100 upon his 1985 guilty plea in England for possession of cannabis have likely contributed to this uncertainty. Today"s decision will further delay the determination of his status and require further litigation. The respondent may wish to use this opportunity to reconsider the applicant"s case with the view of resolving the matter without further protracted litigation.
[13] Neither party suggested the certification of a serious question in the event the application was dismissed for the reasons set out herein.
Judge
Ottawa, Ontario
August 6, 1998
__________________2 The adjudicator"s decision was made pursuant to paragraph 27(2)(e ) and subsection 32(7) of the Immigration Act.
3 It is unclear whether the issue of an adequate alternative remedy was raised before MacKay J. In any event, he had the discretion to undertake judicial review: Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3 at pp. 28-32.
| Subject to subsections (4) and (5), 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. |
Sous réserve des paragraphes (4) et (5), les résidents permanents et les titulaires de permis de retour en cours de validité et conformes aux règlements peuvent faire appel devant la section d"appel d"une mesure de renvoi ou de renvoi conditionnel en invoquant les moyens suivants : a) question de droit, de fait ou mixte :b) le fait que, eu égard aux circonstances particulières de l"espèce, ils ne devraient pas être renvoyés du Canada. |
5 The Appeal Division"s "sole and exclusive jurisdiction" to hear and determine all questions of jurisdiction is set out in subsection 69.4(2):
| The Appeal Division has, in respect of appeals made pursuant to sections 70, 71 and 77, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction, that may arise in relation to the making of a removal order or the refusal to approve and application for landing made by a member of the family class. | La section d"appel a compétence exclusive, dans le cas des appels visés aux articles 70, 71 et 77, pour entendre et juger sur des questions de droit et de fait - y compris en matière de compétence - relatives à la prise d"une mesure de renvoi ou au rejet d"une demande de droit d"établissement présentée par un parent. |
12 The panel allowed the applicant to call three witnesses although it made one or two references that this had to be "new evidence" not previously before the adjudicator or the Federal Court: see Tribunal Record at pp. 31 and 71.