A-35-77
Juan Jose Fourment Lugano (Applicant)
v.
Minister of Manpower and Immigration
(Respondent)
Court of Appeal, Jackett C.J., Le Dain J. and
MacKay D.J.—Toronto, April 28, 1977.
Judicial review — Immigration — Immigration Appeal
Board refusing to re-open appeal against deportation order to
hear new evidence — Whether Board may set aside own
decision and re-open proceedings — Immigration Appeal
Board Act, R.S.C. 1970, c. I-3, as amended by S.C. 1973-74,
c. 27, s. 11 — Federal Court Act, s. 28.
Grillas v. M.M.&I. [1972] S.C.R. 577, distinguished.
JUDICIAL review.
COUNSEL:
R. J. Gathercole for applicant.
G. R. Garton for respondent.
SOLICITORS:
Student's Legal Aid Society, Toronto, for
applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
delivered orally in English by
JACKETT C.J.: This is a section 28 application to
set aside a decision of the Immigration Appeal
Board dismissing a motion by the applicant "for a
re-opening of his `original appeal' on the ground
that certain evidence was not before the Board
when it decided `to refuse the appeal', that such
evidence could not have been obtained at that time
and that it was of a nature to furnish `sufficient
grounds for re-consideration of the original
decision' ".
The Board's decision to dismiss the motion was
based on the ground that it had no jurisdiction to
grant it; and the sole question to be decided by this
Court is whether the Board was wrong in deciding
that it had no authority to grant the motion for
"re-opening".
The applicant, along with three children, is the
subject of a deportation order made on October
23, 1975. On October 24, 1975, a notice of appeal
was filed under section 11(1) of the Immigration
Appeal Board Act, as enacted by chapter 27 of
S.C. 1973-74, which reads, in part:
11. (1) Subject to subsections (2) and (3), a person against
whom an order of deportation is made under the Immigration
Act may appeal to the Board on any ground of appeal that
involves a question of law or fact or mixed law and fact, if, at
the time that the order of deportation is made against him, he
is
(c) a person who claims he is a refugee protected by the
Convention; or
The notice of appeal was accompanied by a "dec-
laration" as required by section 11(2), which
reads:
(2) Where an appeal is made to the Board pursuant to
subsection (1) and the right of appeal is based on a claim
described in paragraph (1)(c) or (d), the notice of appeal to the
Board shall contain or be accompanied by a declaration under
oath setting out
(a) the nature of the claim;
(b) a statement in reasonable detail of the facts on which the
claim is based;
(c) a summary in reasonable detail of the information and
evidence intended to be offered in support of the claim upon
the hearing of the appeal; and
(d) such other representations as the appellant deems rele
vant to the claim.
Pursuant to section 11(3), which reads:
(3) Notwithstanding any provision of this Act, where the
Board receives a notice of appeal and the appeal is based on a
claim described in paragraph (l)(c) or (d), a quorum of the
Board shall forthwith consider the declaration referred to in
subsection (2) and, if on the basis of such consideration the
Board is of the opinion that there are reasonable grounds to
believe that the claim could, upon the hearing of the appeal, be
established, it shall allow the appeal to proceed, and in any
other case it shall refuse to allow the appeal to proceed and
shall thereupon direct that the order of deportation be executed
as soon as practicable.
on November 13, 1975, the Immigration Appeal
Board rendered a judgment, the body of which
reads:
The declaration by the appellants dated the 24th day of
October, 1975, filed pursuant to paragraph (2) of section 11 of
the Immigration Appeal Board Act has been considered on the
12th day of November, 1975, and upon reading the submissions
filed;
THIS BOARD DOTH ORDER that the appeals from an order of
deportation made against the appellants on the 23rd day of
October, 1975, be and the same are hereby refused.
AND DOTH FURTHER DIRECT that the order of deportation
be executed as soon as practicable.
This section 28 application has been argued on
the basis that the question is whether, having
rendered such a judgment, the Board has authority
under the statute, express or implied, to set aside
that judgment, to re-open the proceedings to
receive affidavits to supplement the declaration
that was filed under section 11(2) and to deliver a
new decision under section 11(3) on the basis of a
consideration of the original declaration as so
supplemented.
In my view, a reading of section 11(3) estab
lishes that the Board has no such authority. That
provision requires a quorum of the Board to
"forthwith consider the declaration referred to in
subsection (2)" and if "on the basis of such consid
eration", it reaches a certain conclusion, to "allow
the appeal to proceed" and, in any other case, to
"refuse to allow the appeal to proceed" and
"thereupon direct that the order of deportation be
executed as soon as practicable."
As I read section 11(3),
(a) a quorum of the Board is required to act
"forthwith", and
(b) what it is required to do forthwith is
(i) to consider the declaration referred to in
section 11(2) (which is a declaration that was
contained in or accompanied the notice of
appeal), and
(ii) on the basis of that consideration either
(A) allow the appeal to proceed, or
(B) refuse to allow the appeal to proceed
and direct that the deportation order be
executed as soon as practicable.
In the event that the Board refuses to allow the
appeal to proceed, as it has done in this case, in my
view, section 11(3) is so worded as to exclude any
further consideration of the appeal. I am support
ed in this view, in my opinion, by the fact that the
right of appeal is expressly made "Subject to
subsections (2) and (3)" by section 11(1), which
creates it. Reading section 11(1) with section
11(3), in my view, such a decision terminates the
appeal.
In my view, any implied right in the Board to
re-open and supplement the section 11(2) declara
tion during an unlimited time in the future would
be contrary to the apparent purpose of Parliament
when it stipulated, by section 11(2), that the "dec-
laration" be contained in, or accompany, the
notice of appeal, which must be filed within, at the
most, six days of the making of the deportation
order.' Such requirement, together with the provi
sion in section 11(3) for a "forthwith" consider
ation of the matter on the basis of such declaration
and disposition of the question whether the appeal
should thereupon be terminated, is quite inconsist
ent, in my view, ^with the applicant's submission
that the matter may be regarded as a continuing
proceeding in which there may be an application
for a new hearing and new evidence at any future
time.
Once an appeal has been terminated by a sec
tion 11(3) decision, I am of opinion that it remains
terminated until the decision terminating it is set
aside; and, in the absence of express statutory
authority, a tribunal cannot set aside its own deci
sions. As I understand it, what the Supreme Court
of Canada decided in Grillas v. M.M.&I. 2 was
that there was a continuing authority to grant
section 15 relief, which was not terminated by an
earlier refusal.' There was no question of setting
aside an earlier decision of the Board. What was
held, in effect, was that, even though relief was
refused on one body of evidence, there was still
jurisdiction to grant relief on other evidence.
I Compare Immigration Appeal Board Rule 4(2).
2 [1972] S.C.R. 577.
J Compare section 26(3) of the Interpretation Act, R.S.C.
1970, c. I-23, which reads:
(3) Where a power is conferred or a duty imposed the
power may be exercised and the duty shall be performed
from time to time as occasion requires.
While the point raised in this case is not precise
ly the same as the points raised in earlier decisions
of this Court involving section 11 of the Immigra
tion Appeal Board Act, as I read them, my conclu
sion flows logically from the reasoning in those
cases.
With reference to the Canadian Bill of Rights, I
am not persuaded that there is' any inconsistency
between my interpretation of section 11 and the
requirements of that statute. If a person comes to
Canada as a refugee—i.e., a person who "owing to
well-founded fear of being persecuted ... is out
side the country of his nationality and is unable or,
owing to such fear, is unwilling to avail himself of
the protection of that country" 4- or becomes such
a refugee after he comes to this country and before
a deportation order is made against him, it would
seem reasonable to expect him to know the facts
upon which he bases his claim to be a refugee at
the time that the deportation order is made and he
files his notice of appeal. That being so, it cannot
be said, in my view, that the procedure laid down
by section 11 as I read it does not afford to a bona
fide "refugee" an opportunity to put forward his
claim. In effect, Parliament has excluded refugee
claims based on facts that are not known to the
claimant at the time when he first advances his
claim that he is a refugee and this would not seem
to be inconsistent with the nature of the claim.
I am of opinion that the section 28 application
should be dismissed.
*
LE DAIN J. concurred.
* * *
MACKAY D.J. concurred.
° [See Article 1 of United Nations Convention relating to the
Status of Refugees—Ed.]
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.