Date: 19990708
Dockett: IMM-3415-98
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
THE IMMIGRATION AND REFUGEE BOARD - APPEAL DIVISION
and WALTER GONZALES TOLEDO
Respondents
REASONS FOR ORDER
SHARLOW J.:
[1] This case puts in issue the jurisdiction of the Appeal Division of the Immigration and Refugee Board to hear the reopened appeal of a deportation order after it has been lawfully executed.
Facts
[2] The applicant Walter Gonzales Toledo is a citizen of Guatemala. He came to Canada as a permanent resident on October 1, 1990. In January of 1994, he was convicted of a criminal offence, sexual assault of a child. That conviction led to an inquiry under section 27 of the Immigration Act and a determination that Mr. Toledo is a person described in paragraph 27(1)(d). The inquiry in turn led, on June 8, 1994, to the issuance of a deportation order under subsection 32(2).
[3] The record does not indicate whether consideration was given at any time to the issuance of an opinion by the Minister that Mr. Toledo is a danger to the public in Canada. Absent such an opinion, Mr. Toledo had the right to appeal the deportation order to the Appeal Division pursuant to subsection 70(1), and he did so. The filing of the appeal gave rise to a statutory stay of the deportation order pursuant to section 49.
[4] The appeal was denied on October 11, 1996. Mr. Toledo sought leave to commence an application for judicial review of the Appeal Division's decision. Leave was denied on June 20, 1997.
[5] The decision denying leave to commence an application for judicial review put an end to the stay of the deportation order under section 49. At that point the Minister had an obligation under section 48 to execute the deportation order as soon as reasonably practicable. At some time in or before August of 1997, the immigration authorities commenced the work required to execute the deportation order. It was executed on September 29, 1997.
[6] Meanwhile, on August 8, 1997, Mr. Toledo filed a motion with the Appeal Division to reopen his appeal of the deportation order, citing new evidence. It is undisputed that Mr. Toledo had the right, at that time, to file that motion.
[7] By order dated September 30, 1997 and signed October 16, 1997, the Appeal Division allowed Mr. Toledo's motion to reopen the appeal. The Appeal Division did not know when it granted the motion that the deportation order had been executed. The Minister did not seek judicial review of the decision allowing the motion to reopen the appeal.
[8] The hearing of the reopened appeal was scheduled for March 6, 1998. On January 16, 1998, the Appeal Division made an order pursuant to section 75 to permit Mr. Toledo to return to attend the hearing of the reopened appeal.
[9] On February 24, 1998, the Minister filed an application for leave and judicial review, and a motion for an interim order prohibiting the Appeal Division from hearing the reopened appeal. The motion was denied on March 3, 1998 (IMM-802-98). Gibson J. concluded that the application was in substance an application for judicial review of the decision to reopen Mr. Toledo's appeal. He said that he was not prepared to allow the Minister "to do indirectly that which it failed to seek to do directly, within the time provided, or for that matter, outside of the time provided, with a related application for extension of time."
[10] The reopened appeal was heard on March 19, 1998 and April 29, 1998. The decision is dated June 30, 1998 and was signed July 2, 1998. The Appeal Division, while recognizing that the deportation order had been lawfully executed, nevertheless granted a stay of execution of the deportation order, subject to certain conditions.
[11] Counsel for the Minister argued before the Appeal Division that it had no jurisdiction to hear the reopened appeal because the applicant had been deported before the decision to reopen the appeal was made. The Appeal Division rejected that argument.
[12] In this application for judicial review, the Minister seeks an order quashing the decision of the Appeal Division that stayed the deportation order, on the basis that the decision was outside the Appeal Division's jurisdiction.
Preliminary point
[13] Counsel for Mr. Toledo argued at the hearing that the Court should not hear the Minister's application because it is really a challenge to the Appeal Division's decision to grant the motion to reopen the appeal. Borrowing the words of Gibson J. quoted above, he argues that the Court should not allow the Minister "to do indirectly that which it failed to seek to do directly, within the time provided, or for that matter, outside of the time provided, with a related application for extension of time."
[14] This point was not raised in response to the Minister's leave application, or in the written arguments submitted after leave was granted. It was raised for the first time at the hearing, as an afterthought, without notice to counsel for the Minister.
[15] I have concluded that this Court has the jurisdiction to hear this application and should do so. The Appeal Division is a creature of statute. Its jurisdiction cannot be changed by agreement of the parties, or by waiver. Gibson J. declined to exercise his discretion to grant interim relief to the Minister because the Minister had not challenged the decision to grant Mr. Toledo's motion to reopen. But that should not preclude the Minister from challenging the jurisdiction of the Appeal Division to hear the reopened appeal.
Decision of the Appeal Division
[16] The critical fact that led the Appeal Division to decide that it should hear the reopened appeal was that Mr. Toledo filed his motion to reopen at a time when he had the right to do so. The Appeal Division thought it wrong to deprive Mr. Toledo of the right to have his appeal reopened merely because administrative delays within the offices of the Appeal Division prevented his motion from being heard immediately upon filing.
[17] In reaching its conclusion, the Appeal Division followed an earlier decision of the Appeal Division, Harrison v. Minister of Citizenship and Immigration.1 That decision was the subject of an application for judicial review commenced by the Minister. Reed J. upheld the decision of the Appeal Division.2 Her decision is discussed below.
The Minister's argument -- the Grillas principle
[18] The Minister's argument is based on four cases: Grillas v. Minister of Manpower and Immigration, [1972] S.C.R. 577, Minister of Employment and Immigration v. Clancy (1988), 5 Imm. L.R. (2d) 171 (C.A.), Re Ramkissoon and Minister of Manpower and Immigration, [1978] 2 F.C. 290 (C.A.), leave to appeal denied, (1978) 20 N.R. 445n, and Minister of Citizenship and Immigration v. Binns (1996), 122 F.T.R. 56 (T.D.).
[19] None of these cases is on point, but they contain important comments about the jurisdiction of the Appeal Division, and should be reviewed in some detail.
[20] Grillas is the undisputed authority for the proposition that the Appeal Division has a continuing equitable jurisdiction to reopen an appeal of a deportation order to hear new evidence. This was the decision of the majority, in a decision written by Martland J. and concurred in by Laskin, Abbott and Judson JJ. However, in separate concurring reasons Abbott J. (speaking for himself and Judson J.) expressed the view that this jurisdiction terminated upon the execution of the deportation order. The facts of the case, however, involved a deportation order that had not been executed.
[21] Nor was there a deportation in the Clancy case. The Federal Court of Appeal adopted the comments of Abbott J. from the Grillas case but the issue in the case had nothing to do with deportation. The issue was whether the Appeal Division had the jurisdiction to consider an appeal that had been discontinued.
[22] In Ramkissoon the Federal Court of Appeal adopted the statement of Abbott J. in a case where the deportation order had been executed.3 Heald J., speaking for the Court, said this at pages 294-295:
| Nowhere in section 154 is the Board clothed with jurisdiction to take any action in cases where the deportation order has been executed. All of the powers conferred upon the Board under s. 15 relate to possible action before the execution of the deportation order. |
| Accordingly [...] I agree with the Immigration Appeal Board that the Board had lost its jurisdiction to reopen the hearing with respect to the first deportation order. |
[23] However, the Ramkissoon case is unlike the present case. In Ramkissoon the applicant did not file his motion to reopen the appeal until after he had left Canada. Also, it should be noted that this case was heard before the enactment of section 75. It can no longer be said that the Board is not clothed with any jurisdiction in cases where a deportation order has been executed.
[24] In the Binns case, Rouleau J. followed Ramkissoon in a case involving similar facts. He held that the Appeal Division does not have the jurisdiction to consider a motion to reopen an appeal where the motion to reopen is filed after the execution of the deportation order. The Binns case, like Ramkissoon, is distinguishable on its facts from this case.
[25] None of these cases compels the conclusion that the Appeal Division exceeded its jurisdiction in hearing a reopened appeal where the motion to reopen is filed before the execution of the deportation order.
The Harrison case
[26] Harrison (cited above) is the only case dealing with facts like those of this case, and it favours the argument for Mr. Toledo.
[27] Counsel for the Minister argues that Harrison can be distinguished on its facts because in Harrison the person seeking to have the appeal reopened had never had a hearing on the merits, while in this case Mr. Toledo had the benefit of a full hearing before the Appeal Division. In my view that factual distinction cannot justify a conclusion that the Appeal Division has jurisdiction after deportation in some cases but not others.
[28] Reed J. gave four reasons for her decision in Harrison. They are summarized and discussed below.
(1) The comment of Abbott J. in Grillas is not determinative
[29] In Harrison, Reed J. notes that the comment of Abbott J. in Grillas on which the Minister relies is dicta. It was a description of the facts of the case, not a decision with respect to the duration of the Appeal Division's continuing jurisdiction. I agree.
[30] Counsel for the Minister argues that even if that statement of Abbott J. in Grillas is dicta, the later cases of the Federal Court of Appeal, Ramkissoon and Clancy, are decisions binding on this Court that elevate that statement to a rule of law. That may be so, but the rule of law established by those cases does not apply to the facts of this case. Neither Ramkissoon nor Clancy deals with a situation where the deported person had applied, before deportation, to reopen the appeal.
(2) The integrity of the statutory scheme
[31] In Harrison, Reed J. says that the Immigration Act should not be interpreted to give the Appeal Division the jurisdiction to reopen the appeal of a deportation order, while clothing the Minister with the right to terminate that jurisdiction unilaterally by executing the deportation order before the motion is heard. I agree.
[32] I would add that this conclusion casts no doubt on the right and obligation of the Minister to execute a deportation order as soon as reasonably practicable after the disposition of an appeal. If the Appeal Division has the jurisdiction it has claimed in this case, the Minister may have to return a person to Canada if he or she is deported after having filed a motion to reopen an appeal. But that is not a reason for concluding that the Appeal Division has no jurisdiction to hear the reopened appeal. It simply means that the Minister should consider the jurisdiction of the Appeal Division in exercising whatever discretion she may have with respect to the timing of the deportation.
(3) The implications of section 75 of the Immigration Act
[33] In Harrison, Reed J. says that section 75 of the Immigration Act is predicated on the Appeal Division having jurisdiction to hear an appeal of a deportation order after its execution, provided the appeal was filed before then. She says it is incongruous to deny the Appeal Division the jurisdiction to decide upon a motion to reopen in similar circumstances. Again, I agree. Section 75 reads as follows:
| Where a person against whom a removal order5 or conditional removal order has been made is removed from or otherwise leaves Canada and informs the Appeal Division in writing of his desire to appear in person before the Appeal Division on the hearing of the appeal against the order, the Appeal Division may, if an appeal has been made, allow the person to return to Canada for that purpose under such terms and conditions as it may determine. |
[34] Counsel for the Minister argues that in the normal case, a person who appeals a deportation order has the benefit of a statutory stay. Therefore, it can never be the case that a person is deported while an appeal is pending (unless the deportation is a mistake). From this, she concludes that section 75 could not have been intended to expand the jurisdiction of the Appeal Division so that it survives the execution of the deportation order.
[35] I cannot accept that argument. The words of section 75 are clear. They contemplate the Appeal Division having jurisdiction to order the return of any person who has been deported, if there is an appeal pending before the Appeal Division. There is no compelling reason to read down the words of section 75 to exclude from its scope a person whose deportation is not accidental or mistaken.
[36] Section 75 has a broader potential application that counsel for the Minister recognizes. For example, section 75 could apply to a person who is deported within the period in which an appeal of the order may be commenced, and who fails to make a request that results in a statutory stay during that period under paragraph 49(1)(a). Also, in situations to which subsection 49(1.1) applies, there is no statutory stay under subsection 49(1) even if there is an appeal outstanding.
[37] Counsel for the Minister also argues that it makes no sense for the jurisdiction of the Appeal Division to survive the execution of a deportation order, because once that step is taken, there is no order that can be quashed or stayed. The answer to this argument is found in section 75. It was enacted in 1985, fourteen years after the decision of the Supreme Court of Canada in Grillas. Parliament, knowing of that decision, must be taken to have intended that the jurisdiction of the Appeal Division would survive the execution of a deportation order in cases to which section 75 applies. Thus, at least in the case of an appeal that occurs after deportation, the fact of execution must be ignored. It is no great leap to say that the same is true of a reopened appeal that is within the jurisdiction of the Appeal Division.
(4) Meaning of "permanent resident"
[38] In this case and Harrison, counsel for the Minister relied on subsection 24(1) of the Immigration Act as a provision that helps define the jurisdiction of the Appeal Division. The jurisdiction of the Appeal Division in an appeal under subsection 70(1) may be invoked where a removal order or conditional removal order is made against a permanent resident or a person lawfully in possession of a valid returning resident permit. Subsection 24(1) reads as follows:
24(1) A person ceases to be a permanent resident when
| (a) that person leaves or remains outside Canada with the intention of abandoning Canada as that person's place of permanent residence, or |
| (b) a removal order has been made against that person and the order is not quashed or its execution is not stayed pursuant to subsection 73(1). |
24.(1) Résident permanent -
| a) le fait de quitter le Canada ou de demeurer à l"étranger avec l"intention de cesser de résider en permanence au Canada; |
| b) toute mesure de renvoi n"ayant pas été annulée ou n"ayant pas fait l"object d"un sursis d"exécution au titre du paragraphe 73(1). |
[39] Counsel for the Minister argues that a person against whom a deportation order is made ceases to be a permanent resident upon the happening of one of two possible events. If no appeal is filed, the event is the lapse of the time for filing an appeal. If an appeal is filed, the event is a decision of the Appeal Division that does not quash or stay the deportation order. In either case, the appellant ceases to be a permanent resident and can no longer invoke the jurisdiction of the Appeal Division under subsection 70(1).
[40] In Harrison, Reed J. says that subsection 24(1) does not assist in defining the jurisdiction of the Appeal Division. She points out that subsection 24(1), read literally, would cause a person to cease to be a permanent resident when a removal order is made, which would take all jurisdiction away from the Appeal Division.
[41] I agree with the Minister's interpretation of subsection 24(1), but I do not agree that subsection 24(1) says anything about the jurisdiction of the Appeal Division. The principle objection to this argument for the Minister is that it ignores the continuing jurisdiction of the Appeal Division to reopen appeals, as established in Grillas.
Conclusion
[42] I agree with the decision of Reed J. in Harrison, and I conclude that the Appeal Division had the jurisdiction to hear Mr. Toledo's reopened appeal. My reasons may be summarized as follows.
[43] It is undisputed that the Appeal Division has a continuing jurisdiction to reopen appeals from deportation orders (Grillas). It is also undisputed that until Mr. Toledo was removed from Canada, he had the right to make a motion to reopen his appeal. It follows that on the day the motion was filed, the Appeal Division had the jurisdiction to consider the motion.
[44] Nothing in the Immigration Act states that the jurisdiction of the Appeal Division to hear the appeal of a deportation order ceases to exist upon the execution of the deportation order. But there is one provision, section 75, that suggests the contrary. It permits the Appeal Division to quash or stay a deportation order after it has been executed. Therefore, the initial appeal of a deportation order may be heard after the deportation order has been executed.
[45] The question, then, is whether the Appeal Division has the jurisdiction to hear the reopened appeal of a deportation order, if the motion to reopen is made before the deportation order is executed but is not granted until afterward. On this point the Immigration Act is silent, and so the question becomes whether or not the existence of section 75 necessarily implies that the Appeal Division has that jurisdiction.
[46] The Appeal Division is a statutory tribunal and as such has a jurisdiction that is confined to what is expressly conferred on it by Parliament and what is necessarily implied from what is expressly conferred. Implied jurisdiction may be held to exist where to hold otherwise would result in the tribunal's mandate becoming futile: New Brunswick Electric Power Commission v. Maritime Electric Company Limited, [1985] 2 F.C. 13 (C.A.), leave to appeal denied (1985), 64 N.R. 240n. That is the situation here. If the Appeal Division does not have the jurisdiction to hear the reopened appeal in this case, then its undisputed jurisdiction to consider a validly filed motion to reopen has no practical effect.
[47] Therefore, the Appeal Division must have the jurisdiction in this case not only to consider the motion to reopen, but to grant the motion and hear the reopened appeal, despite the execution of the deportation order.
[48] For these reasons, this application for judicial review will be dismissed.
Costs
[49] At the hearing counsel for Mr. Toledo applied for an award of costs and made submissions in support of his application. In my view, there are no special reasons in this case that would justify an award of costs.
Certified question
[50] The issue in this case has arisen only twice in this Court, but it has arisen often in the Appeal Division since 1985.6 Apparently the Minister has consistently taken the position that the Appeal Division has no jurisdiction in such cases, but the Appeal Division has consistently disagreed.
[51] Counsel for the Minister submitted that this is an appropriate case for a certified question and I agree. The question is:
| Where the Appeal Division of the Immigration and Refugee Board has heard and dismissed the appeal of a deportation order, does it have the jurisdiction to reopen the appeal if the deportation order is executed after the motion to reopen is filed but before the Appeal Division grants the motion? |
"Karen R. Sharlow"
Judge
__________________1 Harrison, Michael Christopher v. M.C.I. (V92-01424, January 31, 1997).
2 Minister of Citizenship and Immigration v. Harrison, [1998] 4 F.C. 557 (T.D.)
3 In fact the "execution" of the deportation order was a voluntary departure, but that nuance is not critical to the principle under discussion.
4 The predecessor to section 70.
5 The term "removal order" is defined to include a departure order, an exclusion order or a deportation order (subsection 2(1) of the Immigration Act ).
6 Abraham v. Minister of Employment and Immigration (I.A.B., T84-9702, August 12, 1985), Ramoutar v. Canada (Minister of Employment and Immigration) (I.A.D., W90-00124-W, May 5, 1993), Cruz v. Canada (Minister of Citizenship and Immigration), [1994] I.A.D.D. No. 339 (V93-01009, October 4, 1994), Scarlett v. Canada (Secretary of State), [1994] I.A.D.D. No. 417 (T92-04356, July 15, 1994), Howard v. Canada (Minister of Citizenship and Immigration), [1996] I.A.D.D. 262 (V93-02169, January 10, 1996); Warner v. Minister of Citizenship and Immigration (I.A.D., M95-04031, October 6, 1998).