A-403-77
Rawle Ramkissoon (Applicant)
v.
Minister of Manpower and Immigration
(Respondent)
Court of Appeal, Heald and Urie JJ. and MacKay
D.J.—Toronto, November 24; Ottawa, December
13, 1977.
Judicial review — Immigration — Deportation order execu
ted by applicant's voluntarily leaving before appeal heard by
Immigration Appeal Board — Applicant returned subsequent
to appeal's dismissal — Ordered deported a second time —
Immigration Appeal Board dismissed motion for leave to file
appeal from second deportation order, and motion to allow
reopening and rehearing of first appeal — Application for
judicial review — Immigration Act, R.S.C. 1970, c. I-2, ss. 2,
18, 35 — Immigration Appeal Board Act, R.S.C. 1970, c. 1-3,
s. 15 as amended by S.C. 1973-74, c. 27, s. 6 — Federal Court
Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
Applicant, who was subject to a deportation order because of
a criminal conviction, voluntarily left Canada before his appeal
to the Immigration Appeal Board had been heard and dis
missed. Sometime after this decision had been made, applicant
returned to Canada, and again was ordered deported because of
his being subject to a deportation order. Applicant first filed a
motion to the Immigration Appeal Board to allow the filing of
an appeal from the second deportation order, and later filed a
motion to reopen and rehear the appeal from the first deporta
tion order. This application seeks to review and set aside the
Board's decision to dismiss both motions.
Held, the application is dismissed. The ordinary dictionary
meaning of removal is not so narrow as to preclude a person
from "removing" himself from Canada to "the place whence he
came to Canada". "Remove" is defined, inter alia, in The
Shorter Oxford English Dictionary as "to go away or depart
from a place" and "to change one's place of residence". Both
definitions are capable of including a positive voluntary act on
the part of the person concerned. "Removal" from Canada to
Trinidad by this applicant was accomplished when applicant
voluntarily returned to Trinidad, and the effect of that "remo-
val" was to "execute" the first deportation order. Applicant,
therefore, was deprived of any status entitling him to appeal
against the first deportation order under the equitable jurisdic
tion of the Board, for section 15 confers no jurisdiction where
the deportation order has been executed. As far as the second
deportation order is concerned, the reasons given in Ali v.
Minister of Manpower and Immigration, page 277, (supra),
apply.
Grillas v. Minister of Manpower and Immigration [ 1972]
S.C.R. 577, applied. Ali v. Minister of Manpower and
Immigration [1978] 2 F.C. 277, applied.
APPLICATION for judicial review.
COUNSEL:
J. Lockyer for applicant.
K. Braid for respondent.
SOLICITORS:
Charles C. Roach, Toronto, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
HEALD J.: The applicant, a citizen of Trinidad,
was granted landed immigrant status in Canada
on January 15, 1973. He was ordered deported on
February 14, 1974 (the first deportation order)
because he was a person described in section
18(1)(e)(ii) of the Immigration Act, in that he was
convicted of an offence under the Criminal Code,
and also because he was a person described in
section 18(1)(e)(iii) of the Immigration Act, being
an inmate of a reformatory. The applicant
appealed this first deportation order to the Immi
gration Appeal Board and the hearing by the
Board was held at Toronto on November 17, 1975,
with neither the applicant nor his counsel, Rev
erend John Robson present. The applicant had left
Canada voluntarily to attend the funeral of a close
relative on March 16, 1975 and had not returned.
By order dated December 8, 1975, the Immigra
tion Appeal Board dismissed the applicant's
appeal. The applicant returned to Canada around
March 13, 1976 and was subsequently ordered
deported on November 19, 1976 (the second
deportation order) because he was a person
described in section 18(1)(e)(ix) of the Immigra
tion Act, in that he had returned to Canada after a
deportation order had been made, without either
an appeal against such order being allowed or
without the consent of the Minister. Thus, in the
opinion of the Special Inquiry Officer, the appli
cant was subject to deportation in accordance with
section 35 of the Immigration Act'.
' 35. Unless an appeal against such order is allowed, a person
against whom a deportation order has been made and who is
deported or leaves Canada shall not thereafter be admitted to
Canada or allowed to remain in Canada without the consent of
the Minister.
On March 15, 1977, the applicant made a
motion to the Immigration Appeal Board for an
order allowing the filing of an appeal against the
second deportation order. In support of that
application, he tendered affidavit evidence indicat
ing that he was unaware and uninformed of his
right to appeal. This motion was heard by the
Immigration Appeal Board and then adjourned
until May 11, 1977. On May 6, 1977, the appli
cant filed another motion to the Immigration
Appeal Board to reopen and rehear the appeal of
November 17, 1975 against the first deportation
order. These two motions were heard by the Immi
gration Appeal Board on May 11, 1977 and were
dismissed by a judgment of the Board pronounced
on May 13, 1977. The reasons of the Board for
this judgment are dated June 6, 1977.
This section 28 application asks the Court to
review and set aside the judgment of the Immigra
tion Appeal Board pronounced on May 13, 1977 in
respect of both of the motions referred to supra.
Dealing firstly with the second deportation
order, I would dismiss the section 28 application in
respect of that order for the reasons given by me in
the case of Ali v. Minister of Manpower and
Immigration 2 . Those reasons apply with equal
force, in my opinion, to the facts here present in so
far as the second deportation order is concerned.
I turn now to the motion to the Immigration
Appeal Board to reopen and rehear the appeal of
November 17, 1975 against the first deportation
order. The Immigration Appeal Board decided
that since the applicant had gone back to Trinidad
voluntarily in March of 1975, he had in effect
executed his own deportation order and for that
reason, the Board was of the view that it had lost
jurisdiction to reopen applicant's appeal. The
Board expressed the view that while the majority
of the Supreme Court of Canada had held in the
2 See page 277 supra.
Grillas case' that the Board had jurisdiction to
reopen an appeal on the basis of new evidence
relevant to its equitable jurisdiction under section
15 of the Immigration Appeal Board Act, such
jurisdiction being a continuing jurisdiction, that
such continuing jurisdiction came to an end upon
the execution of a deportation order. The Board, in
support of that opinion, quoted the reasons of
Abbott J. who delivered reasons on behalf of him
self and Judson J., where he said at page 582:
For the reasons given by my brother Martland, I agree that,
until a deportation order has actually been executed, the Board
is entitled, as it did in this case, to reopen an appeal, hear new
evidence and, if it sees fit to do so, to revise its former decision
and exercise its discretion under s. 15 to allow an appellant to
remain in Canada.
In his submissions to this Court, counsel for the
applicant submitted that the observations of
Abbott J. referred to supra, were not concurred in
by the majority of the Supreme Court of Canada
in the Grillas case (supra), and were therefore not
binding on this Court. Counsel further submitted
that even if those comments were binding, they did
not apply to the facts of this case because, since
this applicant left Canada. voluntarily to attend a
funeral, his departure was not an "execution of the
deportation order". Counsel submitted that a
deportation order can only be "executed" by offi
cials of the Immigration Department and in sup
port of this view, he referred to the definition of
deportation order as contained in section 2 of the
Immigration Act. That definition reads as follows:
"deportation" means the removal under this Act of a person
from any place in Canada to the place whence he came to
Canada or to the country of his nationality or citizenship or
to the country of his birth or to such country as may be
approved by the Minister under this Act, as the case may be;
Counsel submitted that the word "removal" in the
above definition clearly implies removal by the
Immigration Department.
' Grillas v. Minister of Manpower and Immigration [1972]
S.C.R. 577.
With deference, I am unable to agree that the
ordinary dictionary meaning of "removal" is so
narrow as to preclude a person from "removing"
himself from Canada to "the place whence he
came to Canada" which is exactly what transpired
in the case at bar. "Remove" is defined, inter alia,
in The Shorter Oxford English Dictionary as "to
go away or depart from a place" and "to change
one's place of residence". Both of these definitions
are capable of including a positive voluntary act on
the part of the person concerned. Thus, in my
view, on the facts here present, "removal" from
Canada to Trinidad by this applicant was accom
plished on March 16, 1975 and the effect of that
"removal" was to "execute" the first deportation
order. Accordingly, it seems to me that the legal
effect of the applicant's voluntarily leaving
Canada was that he was thereby deprived of any
status entitling him to appeal against the first
deportation order under the equitable section 15
jurisdiction of the Board. I have formed this opin
ion after a detailed consideration of the powers
conferred upon the Board under the various sub
sections of section 15. Subsection (1) confers that
equitable jurisdiction after the Board has dis
missed an appeal from a deportation order and in
certain circumstances empowers the Board to stay
execution of the deportation order or to quash the
order or to quash the order and direct entry or
landing. Subsection (2) also relates to cases where
the Board has ordered a stay of execution of the
deportation order. Subsection (3) empowers the
Board to amend the terms of the stay or to cancel
it. Subsection (4) empowers the Board to quash
the order staying execution and, in certain cases,
to quash the order staying and to direct entry or
landing. Nowhere in section 15 is the Board
clothed with jurisdiction to take any action in
cases where the deportation order has been execu
ted. All of the powers conferred upon the Board
under section 15 relate to possible action before
the execution of the deportation order.
Accordingly, and for the reasons above stated, I
agree with the Immigration Appeal Board that the
Board had lost its jurisdiction to reopen the hear
ing with regard to the first deportation order.
The section 28 application must therefore be
dismissed in respect of the motion to reopen and
rehear the appeal against the first deportation
order as well.
* * *
URIE J. concurred.
* * *
MACKAY D.J. concurred.
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