A-788-76
Ivica Plese (Applicant)
v.
Minister of Manpower and Immigration
(Respondent)
Court of Appeal, Urie J., MacKay and Kelly
D.JJ.—Toronto, March 28, 1977.
Judicial review — Immigration — Practice — Application
for judicial review of refusal by Immigration Appeal Board to
reopen hearing — Application for extension of time to apply
for leave to appeal — Previous application for leave to appeal
refused — Usefulness of new evidence — Whether arguable on
application for leave to appeal or when Board asked to reopen
hearing — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10,
s. 28.
APPLICATIONS.
COUNSEL:
J. L. Pinkofsky for applicant.
A. Pennington for respondent.
SOLICITORS:
J. L. Pinkofsky, Toronto, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment of
the Court delivered orally in English by
URIE J.: We are all of the opinion that the
section 28 application and the application for an
extension of time within which to apply for leave
to appeal from the order of the Immigration
Appeal Board refusing to reopen a Board hearing
should be dismissed. It must be remembered that
while the applicant may have the right to seek to
reopen the hearing before the Board, whether the
reopening is allowed in any given case is a matter
for the exercise of the Board's discretion. It should
also be observed that the applicant had applied
previously to this Court both for an extension of
time within which to apply for leave to appeal and
for leave to appeal, both of which applications
were previously refused. In each instance, all of
the points which counsel argued here in support of
his view that the Court should direct the Board to
reopen, with the exception of one, were either
raised by him or available to him for argument on
those applications.
The one new argument was that there was addi
tional evidence, not available before, which he
wished to adduce. The Board properly held, in our
view, that this evidence being third and fourth-
hand hearsay, was insufficient (as a matter of
weight) to establish even a prima fade case. More
over, it was at best merely corroborative of evi
dence already adduced.
If there had been a failure to interpret all the
evidence at the hearing, which was not proved, it
was evidence adduced through witnesses called by
the applicant himself, of which evidence he must
be presumed to have had knowledge. It could not
be said that he was not aware of its nature and the
failure to translate it, if, in fact, it was not, did not,
therefore, adversely affect the applicant as it
might have, had evidence of witnesses called by
the Minister not been translated.
In any event, it was a matter for argument on
the application for leave to appeal and not a
matter, in our view, which would properly be
arguable before the Board when asking that it
exercise its discretion to reopen the previous
hearing.
None of the other grounds, in our view, estab
lishes that the Board failed properly to exercise its
discretion.
Both the section 28 application to set aside the
order requesting the Board to reopen, and the
application for an extension of time for leave to
appeal should be dismissed.
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.