Date: 20010214
Docket: IMM-323-00
Citation: 2001 FCT 67
Ottawa, Ontario, this 14th day of February, 2001
| PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE |
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
DANIEL NYAME
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is an application for leave and for judicial review pursuant to section 82.1 of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") of the decision of the Appeal Division of the Immigration and Refugee Board (the "IAD"), made on December 31, 1999. In its decision, tribunal member S. Buchanan allowed the respondent's appeal pursuant to subsection 70(2) of the Act; quashed the exclusion order issued against the respondent; and directed that the respondent be examined as a person seeking admission at a port of entry pursuant to paragraph 74(1)(b) of the Act.
[2] The applicant seeks an Order setting aside the above decision, an Order directing that the matter be reheard and re-determined before a different panel of the IAD with such directions as the Court deems appropriate; and such further and other relief as the applicant requests pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7.
Background Facts
[3] The respondent, Daniel Nyame is a citizen of Ghana. In 1995, the mother of the respondent sponsored him in an application for permanent residence. She used a birth certificate in the name of another person to facilitate his admission to Canada. At the port of entry, the respondent's mother admitted that she used false identity documents. As a result, an adjudicator issued an exclusion order against him on August 8, 1995. The respondent appealed to the IAD. On January 28, 1997 the exclusion order was held to be valid in law, however, the panel was satisfied that sufficient humanitarian and compassionate ("H & C") considerations existed so that the respondent should not be removed from Canada. The panel ordered that the appeal be allowed; ordered the removal order quashed; and ordered that the respondent be examined as a person seeking admission at a port of entry.
| [4] The respondent again presented himself at a port of entry in April, 1997. An adjudicator determined that he was not in possession of a valid passport, identity or travel document issued by Ghana, or an immigrant visa for Canada issued in the name of Daniel Nyame. On August 26, 1997, the adjudicator issued an exclusion order. The respondent appealed this order to the IAD, whose decision is now the subject of this review. |
| Applicant's Submissions |
| [5] The applicant relies on the issues and arguments presented in the applicant's application record on leave as well as the new issues and arguments raised in the applicant's further memorandum of argument. The applicant submits that the IAD erred in law in the three following ways: |
| 1. By holding that the principle of res judicata applied to the validity of the exclusion order that was issued against the respondent. |
The applicant argues that in focussing on the prior determination made by the IAD in respect of the prior removal order, the IAD failed to appreciate that a removal order may only be issued by an adjudicator on the basis of a present inadmissibility. Thus, the IAD's application of the res judicata principles, in the applicant's submission, erroneously determined that the same question had already been decided on the first appeal. The applicant submits that the first appeal examined whether the 1995 removal order was valid and whether, nonetheless, there existed H & C circumstances that should preclude removal from Canada. The first appeal could not possibly purport to therefore decide for all time, in the applicant's submission, that the respondent would be inadmissible to Canada on those grounds then present, nor could it purport to suggest that regardless of what other circumstances might exist in the future, there would always be a positive determination on H & C grounds.
[1] The applicant submits subsections 70(2) and (3) of the Act clearly provide for an appeal to the IAD when a removal (exclusion) order has been issued against an individual such as the respondent. The first exclusion order triggered the first appeal that quashed it, while the second new exclusion order created a new right of appeal which, in the applicant's submission, is a fresh appeal and a fresh exercise of discretion based on the current circumstances of the respondent. The applicant submits that although the IAD may direct the respondent to be examined at the port of entry, there is no authority in the Act for it to direct (and it in fact it did not direct in the case at bar) the consequences or outcome of such an examination.
[2] The applicant submits the Federal Court of Appeal held in Grewal v. Canada (Minister of Employment and Immigration), [1981] 1 F.C. 12 at paragraph 3, that "the Adjudicator must determine if the person seeking to come to Canada "is", at the time he makes his decision, a member of an inadmissible class." The applicant therefore argues the fact that the IAD upheld the 1995 removal order as valid in law, does not mean that the 1997 removal order is also valid or that the determination in respect of the 1995 removal order would necessarily remain valid for all time. The applicant argues that for example, in the interim, the respondent may have come into possession of a valid passport and thus, a finding in respect of Regulation 14(1) might no longer pertain. The applicant also argues that the existence of H & C considerations at the first appeal in 1997, does not necessarily mean that H & C considerations exist at the new 1999 appeal.
| [3] 2. By holding that the principle of res judicata applied to the |
| "humanitarian and compassionate" aspect of the respondent's IAD appeal pursuant to section 70(3) of the Act. |
Although not entirely applicable (as the case at bar deals with a fresh appeal), the applicant submits the case law regarding the re-opening of IAD appeals may bolster the position that res judicata does not apply to the H & C aspect of this case. The applicant offers the decision of the Supreme Court of Canada in Grillas v. Canada (Minister of Manpower & Immigration), [1972] S.C.R. 577. In Grillas, supra the majority stated that due to the discretionary, equitable nature of the IAD, res judicata does not apply to that tribunal's decisions regarding the H & C aspects of an appeal. The majority noted, in the applicant's submission, that the re-opening of the hearing in essence created a fresh appeal on new evidence upon which the IAD was invited to exercise its jurisdiction. The applicant argues that likewise, the respondent's second hearing was a fresh appeal and also based on evidence which was new and did not exist at the time of the first appeal.
[4] The applicant submits the IAD was correct in stating that the first IAD panel's jurisdiction ended when they quashed the 1995 exclusion order. However, the IAD erred in not realizing that its equitable jurisdiction began again when the second 1997 exclusion order was issued, not because of the continuing jurisdiction explained in Grillas, supra, but because of a new fresh jurisdiction pursuant to section 70 of the Act. The applicant argues that therefore, the IAD retained a new fresh equitable jurisdiction and could, thus, rule upon any new facts presented to it until that exclusion order was executed. As such, res judicata did not apply as, according to the applicant, this fell within the Grillas, supra exception to res judicata; that being the equitable jurisdiction to decide upon H & C grounds until the exclusion order is executed and the individual is removed from Canada (pursuant to paragraph 70 of the Act).
[5] The applicant also submits in support of this argument the following from paragraph 5 of the Federal Court of Appeal decision in Canada (Minister of Employment and Immigration) v. Clancy (1988), 5 Imm. L.R. (2d) 171:
| At the hearing before us, counsel for the respondent confirmed that, in the event the appeal is allowed to be heard by the Board, the respondent will only be asking the Board to invoke its equitable jurisdiction under sub-paragraph 72(1)(b) of the Immigration Act and not its jurisdiction under sub-paragraph 72(1)(a) of the Act. Accordingly, we think that the principles enunciated by Abbott, J. and by Martland, J. in Grillas supra should be applied to the circumstances in this case [See Abbott, J. at Page 5, see also Martland, J. at Page 11.]. We agree that the Board's equitable jurisdiction under sub-paragraph 72(1)(b) is a continuing jurisdiction and not one which must be exercised once and for all. We think also that the Board can exercise that jurisdiction until such time as the removal order has actually been executed. In this case, the Board has jurisdiction to entertain the appeal at the time when the respondent filed his Notice of Appeal. Its equitable jurisdiction continues thereafter, in our view, until his removal from Canada has been effected. |
[6] The applicant submits that basically, the issue in this case is not one of continuing jurisdiction over an exclusion order until it is executed, but one of fresh jurisdiction on a fresh appeal of a fresh exclusion order made pursuant to subsection 70(2) of the Act.
[7] Though the Act permits the IAD to order that the respondent be examined again as a person seeking admission, the applicant submits it does not give the IAD jurisdiction to bind the subsequent examining officer as to any subsequent disposition arising from that examination. This is in contrast to the IAD's jurisdiction in the case of sponsorship appeals where, pursuant to subsection 77(5) of the Act, the IAD's decision allowing an appeal in respect of a sponsorship refusal precludes a subsequent reliance on the same ground of inadmissibility. The IAD explicitly adverted to this in the decision now under review when stating:
| While there is no specific provision in the Act, which would appear to foreclose the issuance of a further removal order based on the same circumstances, I would hope that CIC would not do so again. |
[8] Thus, the applicant argues that despite recognizing that a further removal order is a statutorily permissible possibility from a subsequent examination of an appellant, the decision purports to prevent this through the misapplication of the principles of res judicata. Moreover, the applicant submits that in the reasons, the IAD cautions against the issuance of a subsequent order despite the disposition of the appeal which orders the respondent's re-examination.
[9] The applicant contrasts the authority of subsection 32(3) of the Act (which permits an adjudicator to grant landing to a person seeking it who meets the requirements of the Act and the Immigration Regulations, 1978, S.O.R./78-172) with the limited jurisdiction of the IAD in circumstances such as the case at bar (the Act does not give the IAD authority to direct landing), in order to ascertain Parliament's intention. The applicant draws two inferences with respect to Parliament's intentions: the IAD does not have comparable jurisdiction; and an adjudicator's jurisdiction to land is only to be exercised where the person is admissible and not, as in the present case, where the person is not. The applicant therefore submits that Parliament intended that only admissible persons be landed as a result of the process (however, the processes under subsection 114(2) of the Act are still available).
[10] The applicant argues that the IAD appears to consider that if a new removal order is again issued, then allowing an appeal under subsection 74(1) would be of no force and effect. The decision, according to the applicant, also suggests that there must therefore be a corresponding intention that its first decision be "conclusive with respect to that matter, or binding on CIC."
[11] The applicant rejects the underlying assumptions in the IAD's decision and reiterates that a favourable result for an appellant prevents his or her removal at that point in time, and permits him or her the opportunity to comply with the necessary statutory requirements, or seek their waiver through subsection 114(2) of the Act. The IAD's jurisdiction does not extend to ordering that such an appellant be landed, or to the waiving of statutory requirements, as in effect, the decision under review purports to do.
| [12] 3. By stating that for res judicata not to apply to the respondent's |
| appeal, there must be a fundamental change in circumstances since his last IAD appeal. |
The applicant offers the case of Kaloti v. Canada (Minister of Citizenship and Immigration) (1998), 153 F.T.R. 289 (F.C.T.D.) to support its argument that the exceptions to res judicata require only that the change in the circumstances be relevant, rather than a fundamental change in the evidence as stated in the IAD's decision. The applicant argues that the changes in circumstances were clearly relevant (as the respondent was 19 years old, appeared to be living on welfare, and appeared to be estranged and no longer living with his mother) The applicant also submits Sandhu v. Canada (Minister of Citizenship and Immigration) (1987), 1 Imm. L.R. (2d) 159 in support of its argument that it is open to the IAD to take into account subsequent changes in the respondent's personal developments.
[13] The applicant also submits the case of Castro v. Canada (Minister of Employment and Immigration) (1988), 5 Imm. L.R. (2d) 87 (F.C.A.) where the Court adopted the test that the new evidence should support a conclusion that there is a "reasonable possibility" as opposed to a "reasonable probability" that the IAD should change its original decision when re-opening an appeal. Thus, the applicant argues the IAD utilized too stringent a standard and erred in law when finding that the new facts "did not entirely change the aspect of the case."
[14] The new facts and changes in circumstances introduced at the second hearing, in the applicant's submission, were such that there was a reasonable possibility that the IAD could have come to a different decision than the IAD came to at the first hearing. The applicant argues that based on these new facts, there may no longer exist H & C factors that would allow the respondent to remain in Canada.
[15] The applicant finally submits that given the framework of the Act, if the respondent wishes to be landed in Canada or regularize his status, there is an onus on him to pursue this only through the statutorily available channels (namely an application at a visa post, sponsorship, or by application to waive subsection 9(1) via a H & C application). Failure to take such steps is relevant to the IAD's determination of H & C circumstances according to the applicant.
Respondent's Submissions
[16] The respondent submits that the applicant has neither made an application for leave and judicial review, nor applied to the IAD to reconsider the first order of the IAD. The respondent argues that instead, the applicant has ignored or misunderstood the first order of the IAD. To allow the applicant's argument that the IAD misunderstood its jurisdiction, according to the respondent, would result in no limit for the applicant to re-litigate every decision it does not like.
[17] The respondent submits the decision of Kaloti v. Canada (Minister of Citizenship and Immigration), supra to support its argument that unless there is a relevant change of circumstances, res judicata applies. Where there is a relevant change of circumstances, the applicant can launch a second application, but has failed to do so in the sense contemplated by the Court in Kaloti, supra. Regardless, the respondent submits that the applicant has not pointed to new circumstances in relation to the exclusion order.
[18] The Federal Court of Appeal decision of the above Kaloti case (Kaloti v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 390 (F.C.A.)) is then offered to support the respondent's argument that the decision to invoke substantially the same or identical grounds on which to base the exclusion order is an abuse of process by the applicant in the circumstances of this case. The respondent also submits the case of Moldeveanu v. Canada (Minister of Citizenship and Immigration) (1999), 235 N.R. 192 (F.C.A.) where the Minister's attempt to re-argue a point that was previously decided was found to come too late in the day as the Minister ought to have appealed to the Supreme Court of Canada.
[19] The respondent submits that the 1997 exclusion order is based on virtually the same grounds and same reasons as the first, and that there cannot be much doubt that the IAD's determination that the 1995 exclusion order was valid would be res judicata in that the 1997 exclusion order is valid. Both exclusion orders, in the respondents submissions, were based on three grounds, two of which are the same for each order. The basis of the new ground on the 1997 exclusion order is not new and could have been founded on the 1995 exclusion order according to the respondent. The IAD decided to quash the 1995 exclusion order on the ground that there were H & C considerations.
[20] What is res judicata according to the applicant, is that there are H & C circumstances which prevent the applicant from ordering the respondent excluded. The applicant has not requested a reconsideration of the H & C grounds on new evidence. Rather, the respondent submits that the applicant ordered the respondent excluded for the same reason as before, and left it up to the respondent to argue res judicata at the IAD.
[21] In the 1997 appeal of the 1995 exclusion order, the H & C ground found by the IAD was that the respondent was an innocent victim of his mother's machinations. No new evidence can change this fact according to the respondent. The respondent submits that only evidence which could change the IAD's initial determination is relevant.
[22] The respondent submits the Immigration and Refugee Board of Canada, IAD decision of McLeod v. Canada (Minister of Employment and Immigration) (1994), 24 Imm. L.R. (2d) 187, in support of its argument that the order that the respondent be returned to the port of entry for re-examination, does not mean that the applicant can ignore the IAD's holding. The applicant is required to act on the IAD's order and land the applicant. In McLeod, supra, the IAD stated at page 196:
| The appeal having been allowed and the removal order against each of the appellants having been quashed, the question of course is the effect of an order that each of the appellants be examined as a person seeking admission at a port of entry. As the appeal was allowed on the basis of the existence of compassionate or humanitarian considerations leading to a finding that the appellants should not be removed from Canada when examined at a port of entry, effect should be given to that finding and the visa which they were issued should be given effect to result in landing in Canada. |
[23] The respondent could not have been issued an exclusion order once again on virtually the same grounds as before, as to do so ignores the 1997 IAD decision finding that H & C grounds prohibited such exclusion. The respondent refers to the case of Marques v. Canada (Minister of Citizenship and Immigration) (1996), 35 Imm. L.R. (2d) 81 (F.C.T.D.), where an application under subsection 114(2) of the Act was quashed and a new determination was ordered to be conducted. However, the H & C application was again refused. The Court found that the redetermination was flawed as, among other things, the officer did not comply with the order when he looked at the application from the point of view of whether new circumstances arose since the previous quashed determination (rather, he should have conducted a redetermination).
[24] The respondent submits that the applicant appears to argue that because time has passed since the 1997 IAD decision finding H & C grounds, that decision has lost its force. The delay in processing this case, in the respondent's submission, is entirely due to the applicant and as such, not a factor that can be laid at the door of the respondent. The decisions of Meikle v. Canada (Minister of Citizenship and Immigration) (1997), 137 F.T.R. 304 (F.C.T.D.) and Valdez v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 684, IMM-2793-94 (May 4, 1995) (F.C.T.D.) are in support of this argument. As these two cases deal with IAD decisions, the respondent submits that the jurisprudence referred to therein is equally applicable to this case.
[25] The applicant argues that it should be allowed to ignore the order of the IAD and rely on its delay in processing the case to uphold a second exclusion order (that is identical to the 1995 exclusion order set aside in 1997). However, the applicant ought to be held to the same rules as ordinary litigants and it is abusive to simply re-order persons for the same reasons as before in the face of a prior IAD order not to do so. Thus, the respondent submits that there are special reasons for costs in this case.
[26] The respondent submits in his further memorandum of argument, that the Federal Court of Appeal has held that the Courts owe an unusual degree of deference to the IAD in the manner within which it interprets its authority. The respondent argues the IAD can determine that the applicant erred by not complying with its previous 1997 Order, as long as there is no clear conflict with the Act in doing so. Furthermore, the respondent submits that the IAD can invoke the doctrine of res judicata if this approach was open to it on the evidence. The respondent notes that the Act confers a very broad authority to the IAD to construe its own jurisdiction. Unless there is a clear limitation in the IAD's jurisdiction, the Court ought not to create one. Canada (Solicitor General) v. Kainth (1994), 26 Imm. L.R. (2d) 226 (F.C.A.) is offered in support of these arguments.
[27] Counsel for the respondent also submits that there is a genuine issue as to whether these proceedings are moot as the respondent has not been heard from since these proceedings were initiated. His mother and stepfather have not heard from him and the applicant has not produced any evidence that he has contacted the Department. In these circumstances, the respondent submits there is no further live issue and the applicant's silence on this issue supports the proposition that the respondent has simply moved on with his life and abandoned any interest in this proceeding.
[28] Issues
| 1. Did the Immigration and Refugee Board (Appeal Division) (IAD) err in law in holding that the principle of res judicata applied to the validity of the exclusion order that was issued against the respondent? |
| 2. Did the IAD err in law in holding that the principle of res judicata applied to the "humanitarian and compassionate" aspect of the respondent's IAD appeal pursuant to subsection 70(3) of the Act? |
| 3. Did the IAD err in law by stating that for res judicata not to apply, there must be a fundamental change in circumstances since the last IAD appeal? |
Relevant Statutory Provisions
[1] The relevant sections of the Immigration Act state:
| 69.4 (1) The Appeal Division is a court of record and shall have an official seal, which shall be judicially noticed. (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 an application for landing made by a member of the family class. (3) The Appeal Division has, as regards the attendance, swearing and examination of witnesses, the production and inspection of documents, the enforcement of its orders and other matters necessary or proper for the due exercise of its jurisdiction, all such powers, rights and privileges as are vested in a superior court of record and, without limiting the generality of the foregoing, may (a) issue a summons to any person requiring that person to appear at the time and place mentioned therein to testify with respect to all matters within that person's knowledge relative to a subject-matter before the Division and to bring and produce any document, book or paper that the person has or controls relative to that subject-matter; (b) administer oaths and examine any person on oath; and (c) during a hearing, receive such additional evidence as it may consider credible or trustworthy and necessary for dealing with the subject-matter before it. (4) The Appeal Division shall, in accordance with rules made under subsection 65(1), notify the parties to an appeal made pursuant to section 70 or 71 of its disposition of the appeal. (5) The Appeal Division shall forthwith give written reasons for its disposition of any appeal made pursuant to section 70 or 71 where either of the parties to the appeal has so requested within ten days after having been notified of the disposition of the appeal. |
| 69.4 (1) La section d'appel est une cour d'archives; elle a un sceau officiel dont l'authenticité est admise d'office. (2) 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. (3) La section d'appel a, pour la comparution, la prestation de serment et l'interrogatoire des témoins, ainsi que pour la production et l'examen des pièces, l'exécution de ses ordonnances et toute autre question relevant de sa compétence, les attributions d'une cour supérieure d'archives. Elle peut notamment_: a) par citation adressée aux personnes ayant connaissance de faits se rapportant à l'affaire dont elle est saisie, leur enjoindre de comparaître comme témoins aux date, heure et lieu indiqués et d'apporter et de produire tous documents, livres ou pièces, utiles à l'affaire, dont elles ont la possession ou la responsabilité; b) faire prêter serment et interroger sous serment; c) recevoir, en cours d'audition, les éléments de preuve supplémentaires qu'elle estime utiles, crédibles et dignes de foi. (4) La section d'appel notifie aux parties, conformément aux règles mentionnées au paragraphe 65(1), sa décision sur l'appel présenté en vertu des articles 70 ou 71. (5) La section d'appel n'est tenue de motiver par écrit sa décision sur un appel présenté en vertu des articles 70 ou 71 que si l'une des parties le demande dans les dix jours suivant sa notification, auquel cas la transmission des motifs se fait sans délai. |
| 70. (1) 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. (2) Subject to subsections (3) to (5), an appeal lies to the Appeal Division from a removal order or conditional removal order made against a person who (a) has been determined under this Act or the regulations to be a Convention refugee but is not a permanent resident; or (b) seeks landing or entry and, at the time that a report with respect to the person was made by an immigration officer pursuant to paragraph 20(1)(a), was in possession of a valid immigrant visa, in the case of a person seeking landing, or a valid visitor's visa, in the case of a person seeking entry. (3) An appeal to the Appeal Division under subsection (2) may be based on either or both of the following grounds: (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 the existence of compassionate or humanitarian considerations, the person should not be removed from Canada. (3.1) No appeal may be made to the Appeal Division by a person with respect to whom a certificate has been filed under subsection 40.1(1) where it has been determined, pursuant to paragraph 40.1(4)(d), that the certificate is reasonable. (4) A person described in subsection (1) or paragraph (2)(a) against whom a deportation order or conditional deportation order is made may appeal to the Appeal Division on any ground of appeal that involves a question of law or fact, or mixed law and fact, where the person is (a) a person, other than a person described in subsection (5), with respect to whom a certificate referred to in subsection 40(1) has been issued; or (b) a person, other than a person described in subsection (3.1), who has been determined by an adjudicator to be a member of an inadmissible class described in paragraph 19(1)(e), (f), (g), (j) or (l). (5) No appeal may be made to the Appeal Division by a person described in subsection (1) or paragraph (2)(a) or (b) against whom a deportation order or conditional deportation order is made where the Minister is of the opinion that the person constitutes a danger to the public in Canada and the person has been determined by an adjudicator to be (a) a member of an inadmissible class described in paragraph 19(1)(c), (c.1), (c.2) or (d); (b) a person described in paragraph 27(1)(a.1); or (c) a person described in paragraph 27(1)(d) who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of ten years or more may be imposed. (6) Where the Appeal Division directs that the execution of a deportation order or conditional deportation order be stayed, the direction is of no effect and, notwithstanding subsection 74(2), the Appeal Division may not review the case, where the Minister is of the opinion that the person has breached the terms and conditions set by the Appeal Division and that the person constitutes a danger to the public in Canada and the person has been determined by an adjudicator to be (a) a member of an inadmissible class described in paragraph 19(1)(c), (c.1), (c.2) or (d); (b) a person described in paragraph 27(1)(a.1); or (c) a person described in paragraph 27(1)(d) who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of ten years or more may be imposed. |
| 70. (1) 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. (2) Sous réserve des paragraphes (3) à (5), peuvent faire appel devant la section d'appel d'une mesure de renvoi ou de renvoi conditionnel_: a) les non-résidents permanents qui se sont vu reconnaître le statut de réfugié au sens de la Convention aux termes de la présente loi ou de ses règlements; b) les personnes qui, ayant demandé l'admission, étaient titulaires d'un visa de visiteur ou d'immigrant, selon le cas, en cours de validité lorsqu'elles ont fait l'objet du rapport visé à l'alinéa 20(1)a). (3) Les moyens que peuvent invoquer les appelants visés au paragraphe (2) sont les suivants_: a) question de droit, de fait ou mixte; b) le fait que, pour des raisons d'ordre humanitaire, ils ne devraient pas être renvoyés du Canada. (3.1) Ne peut faire appel devant la section d'appel la personne à l'égard de laquelle il a été décidé, en application de l'alinéa 40.1(4)d), que l'attestation visée au paragraphe 40.1(1) est raisonnable. (4) Les moyens d'appel sont limités aux questions de droit, de fait ou mixtes dans le cas d'appels relatifs à une mesure d'expulsion ou d'expulsion conditionnelle interjetés par les personnes, visées au paragraphe (1) ou aux alinéas (2)a) ou b), qui, selon le cas_: a) ont fait l'objet de l'attestation prévue au paragraphe 40(1), sauf si elles sont visées au paragraphe (5); b) appartiennent, selon la décision d'un arbitre, à l'une des catégories non admissibles visées aux alinéas 19(1)e), f), g), j) ou l), sauf si elles sont visées au paragraphe (3.1). (5) Ne peuvent faire appel devant la section d'appel les personnes, visées au paragraphe (1) ou aux alinéas (2)a) ou b), qui, selon la décision d'un arbitre_: a) appartiennent à l'une des catégories non admissibles visées aux alinéas 19(1)c), c.1), c.2) ou d) et, selon le ministre, constituent un danger pour le public au Canada; b) relèvent du cas visé à l'alinéa 27(1)a.1) et, selon le ministre, constituent un danger pour le public au Canada; c) relèvent, pour toute infraction punissable aux termes d'une loi fédérale d'un emprisonnement maximal égal ou supérieur à dix ans, du cas visé à l'alinéa 27(1)d) et, selon le ministre, constituent un danger pour le public au Canada. (6) Malgré le paragraphe 74(2), la section d'appel ne peut réexaminer le cas -- l'ordonnance de sursis visant la mesure de renvoi ou de renvoi conditionnel cessant alors d'avoir effet -- si, selon le ministre, la personne n'a pas respecté les conditions du sursis et constitue un danger pour le public au Canada et que, selon la décision d'un arbitre, elle_: a) appartient à l'une des catégories non admissibles visées aux alinéas 19(1)c), c.1), c.2) ou d); b) relève du cas visé à l'alinéa 27(1)a.1); c) relève, pour toute infraction punissable aux termes d'une loi fédérale d'un emprisonnement maximal égal ou supérieur à dix ans, du cas visé à l'alinéa 27(1)d). |
| 74. (1) Where the Appeal Division allows an appeal made pursuant to section 70, it shall quash the removal order or conditional removal order that was made against the appellant and may (a) make any other removal order or conditional removal order that should have been made; or (b) in the case of an appellant other than a permanent resident, direct that the appellant be examined as a person seeking admission at a port of entry. (2) Where the Appeal Division disposes of an appeal by directing that execution of a removal order or conditional removal order be stayed, the person concerned shall be allowed to come into or remain in Canada under such terms and conditions as the Appeal Division may determine and the Appeal Division shall review the case from time to time as it considers necessary or advisable. (3) Where the Appeal Division has disposed of an appeal by directing that execution of a removal order or conditional removal order be stayed, the Appeal Division may, at any time, (a) amend any terms and conditions imposed under subsection (2) or impose new terms and conditions; or (b) cancel its direction staying the execution of the order and (i) dismiss the appeal and direct that the order be executed as soon as reasonably practicable, or (ii) allow the appeal and take any other action that it might have taken pursuant to subsection (1). |
| 74. (1) Si elle fait droit à un appel interjeté dans le cadre de l'article 70, la section d'appel annule la mesure de renvoi ou de renvoi conditionnel et peut_: a) soit lui substituer celle qui aurait dû être prise; b) soit ordonner, sauf s'il s'agit d'un résident permanent, que l'appelant fasse l'objet d'un interrogatoire comme s'il demandait l'admission à un point d'entrée. (2) En cas de sursis d'exécution de la mesure de renvoi ou de renvoi conditionnel, l'appelant est autorisé à entrer ou à demeurer au Canada aux éventuelles conditions fixées par la section d'appel. Celle-ci réexamine le cas en tant que de besoin. 3) Dans le cas visé au paragraphe (2), la section d'appel peut, à tout moment_: a) modifier les conditions imposées ou en imposer de nouvelles; b) annuler son ordre de surseoir à l'exécution de la mesure, et parallèlement_: (i) soit rejeter l'appel et ordonner l'exécution dès que les circonstances le permettent, (ii) soit procéder conformément au paragraphe (1). |
| [2] Issue 1 |
| Did the Immigration and Refugee Board (Appeal Division) (IAD) err in law in holding that the principle of res judicata applied to the validity of the exclusion order that was issued against the respondent? |
| This appeal was made by the respondent pursuant to subsection 70(2) of the Act. When the respondent had first appeared at the port of entry in 1995, an exclusion order was issued against him. He appealed this exclusion order to the IAD which found that the exclusion order was valid in law, but quashed the exclusion order on humanitarian and compassionate considerations and ordered that the respondent be examined as a person seeking admission at a port of entry. When the respondent presented himself at the port of entry in April, 1997, it was determined that he was not in possession of a valid passport; identity or travel document issued by Ghana and a second exclusion order was issued by the adjudicator on August 26, 1997. It is this second exclusion order that is the subject of this appeal. |
| [3] On the appeal of the second exclusion order, the IAD held that the respondent's appeal would be allowed on the basis of res judicata. The IAD stated: |
| The appeal is therefore allowed by reason of the application of res judicata. The exclusion order of Adjudicator, F. Douglas, dated August 26, 1997 shall be quashed and I hereby direct that that [sic] the removal order made on the 26th day of August, 1997 be quashed. |
| The Immigration Appeal Division directs, in accordance with ss. 74(1)(b) of the Immigration Act, that Daniel NYAME be examined as a person seeking admission at a port-of-entry. |
| [4] In Grewal, supra the Court stated at page 13: |
| We are all of the view that, in those circumstances, the Adjudicator could not legally make an exclusion order against the applicant on the ground that he was a person described in paragraph 19(1)(i). In our opinion, under subsection 32(5), the Adjudicator must determine if the person seeking to come to Canada "is", at the time he makes his decision, a member of an inadmissible class. |
| [5] In the present case, the adjudicator must make a determination on the facts that exist when the decision is made. In the case of the respondent, that date was August 26, 1997. The respondent was found not to have the proper identity documents and a new exclusion order was issued on August 26, 1997. By virtue of subsection 70(2) of the Act, the respondent was entitled to appeal the issuance of this order and did so. This is a new exclusion order based on the facts found on August 26, 1997. I am of the opinion that res judicata does not apply in this case as the order was based on facts found on August 26, 1997 which facts the adjudicator believed to be somewhat different than the earlier facts. It is the role of the Board to hold a hearing with respect to this new exclusion order. Accordingly, I find that the IAD erred in applying res judicata to allow the appeal. |
| [6] Issue 2 |
| Did the IAD err in law in holding that the principle of res judicata applied to the "humanitarian and compassionate" aspect of the respondent's IAD appeal pursuant to subsection 70(3) of the Act? |
| Since the second order forms the basis for a second and new appeal to the IAD, then I believe that the IAD must entertain representations put to it with respect to the humanitarian and compassionate grounds of appeal which are contained in subsection 70(3) of the Act. I am therefore of the opinion that the IAD erred in finding that the doctrine of res judicata applied in this case to prevent the IAD from hearing the subsection 70(3) humanitarian and compassionate ground. It must be pointed out that it may well be that even though some circumstances have changed, i.e. that the respondent is not living with his mother, it may well be that the humanitarian and compassionate ground relied on in the original IAD decision is still valid and would still justify humanitarian and compassionate ground being the basis to quash any new exclusion order. However, I believe this is a matter to be decided on the appeal of the second exclusion order. |
| [7] Issue 3 |
| Did the IAD err in law by stating that for res judicata not to apply, there must be a fundamental change in circumstances since the last IAD appeal? |
| I do not propose to deal with this issue as my rulings for Issues 1 and 2 dispose of this application. |
| [8] A review of the file and decision lead me to the conclusion rasied by the IAD in its decision that the issuance of a new exclusion order in the face of a finding, based on compassionate and humanitarian grounds, that the respondent should not be removed from Canada could and will amount to an abuse of process of the Board. This, however, was not the basis for the Board's decision nor was it argued before me. |
| [9] I have considered the proposed question for certification pursuant to subsection 83(1) of the Act, but I am not prepared to certify the question as I have sent the matter back to be heard by a different panel of the IAD. |
| [10] I am not prepared to make an order for costs. |
| ORDER |
| [11] IT IS ORDERED that the decision of the IAD dated December 31, 1999 be set aside and the matter reheard and redetermined before a different panel of the IAD. |
| [12] AND IT IS ORDERED that there shall be no order as to costs. |
| "John A. O'Keefe" |
| J.F.C.C. |
| Ottawa, Ontario |
| February 14, 2001 |