Date: 2000803
Docket: IMM-5340-99
BETWEEN:
DARREL WAYNE JACKSON
Applicant
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROULEAU, J.
[1] This is an application for judicial review of the decision of a member of the Immigration Appeal Division of the Immigration and Refugee Board, dated October 18, 1999, in which an application to reopen a section 70 appeal was denied on the basis that the Appeal Division lacked jurisdiction to entertain the motion.
[2] The applicant, a citizen of the United States of America, entered Canada as a permanent resident and became a landed immigrant on February 13, 1974.
[3] On April 14, 1998, Mr. Jackson appeared before an Adjudicator accompanied by his counsel. A determination was made that the applicant was a person described in paragraph 27(1)(d) of the Immigration Act, having been convicted on March 17, 1986 at Prince George, B.C. of the offence of break and enter of a commercial building and committing theft therein, contrary to section 306 of the Criminal Code. This was not contested and a removal order issued.
[4] Following the determination, the applicant was instructed that he had a right of appeal. The requisite forms were made available and, with the assistance of his counsel, such an application was forthwith filed.
[5] On June 9, 1998, the applicant and his counsel were served with a notice to appear advising that the appeal pursuant to section 70 of the Immigration Act would be heard at Vancouver, November 9, 1998, at 9:00 in the forenoon.
[6] On November 9, 1998, the hearing was convened. Counsel appeared but Mr. Jackson failed to attend. Counsel indicated that he had not seen or heard from his client since July, 1998, and, in their reasons, the Appeal Division of the Immigration and Refugee Board made a finding. The Presiding Member indicated as follows:
| The appellant filed notice of appeal on the 14th of April, 1998. A notice to appear was served on this appellant and his counsel in accordance with the Immigration Appeal Division rules to appear today. The appellant is not present. Accordingly, the Appeal Division declares the appeal abandoned. |
[7] The decision, dated November 12, 1998, was forwarded to the last known address of Mr. Jackson but it was returned. He was subsequently removed to the United States on January 26, 1999.
[8] On April 20, 1999, the Board received by facsimile and written letter a request from Mr. Jackson"s spouse seeking to reopen the appeal. In her letter she explained that her spouse had been incarcerated at the time of his appeal hearing and had been since early October, 1998. This request was followed by a further letter dated June 7, 1999 from the applicant seeking to have his appeal reopened. By letter dated July 2, 1999 addressed to the applicant via his spouse in Prince George, the Board acknowledged receipt of the letters and indicated that they would treat this correspondence as an application to reopen the appeal. On October 18, 1999, the Board rendered the following decision in this matter:
| I find that the Appeal Division does not have jurisdiction to hear a motion to reopen a section 70 appeal filed after the applicant"s removal from Canada pursuant to a removal order made against him at Prince George, B.C., on March 17, 1986. The motion of Darrel Wayne JACKSON to reopen his section 70 appeal is dismissed for lack of jurisdiction. |
[9] In their reasons for decision the Appeal Division relies on three decisions to support their determination: Grillas v. M.M.I., (1971), 23 D.L.R. (3d) 1 (S.C.C.) 5, Canada (M.C.I.) v. Harrison [1998] 4 F.C. 557, and Canada (M.C.I.) v. Toledo [2000] F.C.J. No. 438.
[10] Counsel for the applicant submits that the Board erred in law in determining that it lacked jurisdiction to hear the motion to reopen the appeal under section 70 of the Immigration Act. He submits that the Board"s jurisdiction to determine whether or not a person should be removed from Canada is a continuing jurisdiction; that it has the authority to reopen the hearing to consider evidence which arose subsequently to the Board"s decision to dismiss the appeal. He further submits that the Board had an implied authority to reconsider, particularly, it should acknowledge its failure in natural justice. He relies on the Harrisson, supra, case in support of this contention. He adds that for a Board to declare an appeal abandoned is a breach of natural justice and that the subsequent removal of the person from Canada is void and should be set aside.
[11] The respondent submits that there is no breach of the rules of natural justice in the circumstances of this case and, as such, there is no basis on which the Appeal Division has jurisdiction to hear the applicant"s motion to reopen a section 70 appeal. The respondent relies on section 76 of the Immigration Act which provides as follows:
| 76. Appeal Declared Abandoned - Where a person against whom a removal order or conditional removal order has been made files an appeal against that order with the Appeal Division but fails to communicate with the Appeal Division upon being requested to do so or fails to inform the Appeal Division of the person"s most recent address, the Appeal Division may declare the appeal to be abandoned. |
76. Désistement - Faute pour l"appelant d"entrer en communication avec elle, sur son order, ou de lui faire connaître sa dernière addresse, la section d"appel peut, dans le cas d"un appel relatif à une mesure de renvoi ou de renvoi conditionnel, conclure au désistement de l"appel. |
[12] The applicant, in support of his submission that the Appeal Division of the Immigration and Refugee Board cannot declare itself functus officio and that it has an equitable and continuing jurisdiction, relies on the case of Chandler v. Alberta Association of Architects [1989] 2 S.C.R. 848. There is no doubt that in this particular decision the Supreme Court of Canada determined that the tribunal could not declare itself to be functus officio because the decision it had rendered was ultra vires. At page 860 of the decision, Sopinka J. is quite clear:
| The general rule that a final decision of a court cannot be reopened derives from the decision of the English Court of Appeal in In re St. Nazaire Co. (1879), 12 Ch. D. 88. The basis for it was that the power to rehear was transferred by the Judicature Acts to the appellate division. The rule applied only after the formal judgment had been drawn up, issued and entered, and was subject to two exceptions: |
| 1. where there had been a slip in drawing it up, and, |
| 2. where there was an error in expressing the manifest intention of the court. See Paper Machinery Ltd. v. J.O. Ross Engineering Corp., [1934] S.C.R. 186. |
[13] At page 861, Sopinka J. further wrote:
| I do understand Martland J. to go so far as to hold that functus officio has no application to administrative tribunals. Apart from the English practise which is based on a reluctance to amend or reopen formal judgments, there is a sound policy reason for recognizing the finality of proceedings before administrative tribunals. As a general rule, once such a tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances. It can only do so if authorized by statute or if there has been a slip or error within the exceptions enunciated in Paper Machinery Ltd. v. J.O. Ross Engineering Corp., supra. |
[14] In the case before me, there is no doubt that Mr. Jackson was notified of the date of the hearing before the Appeal Division. His counsel attended but the applicant made no attempt either through his wife or his counsel to seek an adjournment or advise that he was incarcerated. The Appeal Division rendered a final decision. It determined that the appeal had been abandoned.
[15] As Mr. Justice Sopinka wrote at page 862 of Chandler, supra:
| Justice may require the reopening of administrative proceedings in order to provide relief which would otherwise be available on appeal. |
[16] There is no evidence before this Court to suggest that the removal order would have been set aside nor are there any grounds advanced that would question the validity of the removal order. As the Supreme Court of Canada wrote, there must be finality to the proceedings. There is "no slip" or "error in expressing the manifest interpretation of the court" (Sopinka J., supra).
[17] I am satisfied that there is no statutory power for the tribunal to rehear a matter it has disposed of. I am quite satisfied that no principle of natural justice has been offended. The jurisprudence is quite clear. Once a deportation order has been executed, the Board is not entitled to reopen the appeal.
[18] Counsel for the applicant suggests that there is a question of general importance that should be submitted to the Federal Court of Appeal and he words it as follows:
| Does the Immigration Appeal Division lack jurisdiction by reason of the doctrine of functus officio, to hear an application to reconsider a decision to declare an appeal abandoned pursuant to section 76 of the Immigration Act on grounds that the decision was made in breach of natural justice, when the application to reconsider the decision was filed with the Division after the applicant was removed from Canada? |
[19] In reply, counsel for the respondent submits the more proper question should read as follows:
| Where the Appeal Division of the Immigration and Refugee Board has dismissed the Appeal of a deportation order, does it have jurisdiction to reopen the Appeal if the deportation order is executed prior to the filing of the Motion to reopen? |
[20] There is no doubt that the Federal Court of Appeal in the recent decision of Canada (M.C.I.) v. Toledo, supra, held that an Appeal Division has equitable and continuing jurisdiction once a notice of appeal has been filed and, should there be a subsequent removal before the matter is entertained by the Appeal Division, an appellant should be heard. One can analogize from this jurisprudence that once a decision has been rendered by the Appeal Division and the appellant is subsequently removed, the Appeal Division of the Immigration and Refugee Board is functus officio. I see no reason to submit the question to the Federal Court of Appeal. The proposed question is vague and I am satisfied that there has been no breach of natural justice.
[21] This application for judicial review is dismissed.
JUDGE
OTTAWA, Ontario
August 3, 2000