Digests

Jessani v. Canada (Minister of Citizenship and Immigration)

A-242-00

2001 FCA 127, Malone J.A.

27/4/01

8 pp.

Appeal from order ((2000), 186 F.T.R. 315) allowing respondent's application for judicial review, setting aside decision of Immigration and Refugee Board, Appeal Division (IAD) dismissing, for lack of jurisdiction, respondent's appeal from exclusion order--Motions Judge certified question: whether jurisdiction in IAD to consider appeal under Immigration Act, s. 70 when adjudicator finding person lost permanent residence by application of Immigration Act, s. 24--Respondent becoming permanent resident of Canada in 1991--Left Canada six months later and only returned in 1997--On return, falsely indicated left Canada in August 1996--Subsequently report under Act, s. 20(1)(a) concluding respondent abandoned permanent residence pursuant to s. 24(1)(a)--At inquiry, adjudicator ruled respondent abandoning Canada as place of permanent residence pursuant to s. 24(2), and as respondent not in possession of necessary immigrant visa, issued exclusion order--On appeal, Board finding respondent neither establishing physical residence, nor displaying any intention of doing so until issuance of exclusion order--Also finding respondent not permanent resident, dismissed appeal for lack of jurisdiction pursuant to s. 70(1) (permitting appeal where removal order made against permanent resident)--On judicial review, Motions Judge holding s. 70(1) allowing person who is permanent resident "but for the decision of an adjudicator" to appeal adjudicator's decision--Concluded benefit of appeal conferred by s. 70(1) existed unless excluded by Parliament using express language--Also holding Board erred in finding respondent knew nothing about 183-day rule (time allowed out of country in any 12-month period) established under s. 24(2) based on determination transcript clearly showed respondent knew about rule at least six months after left Canada--Appeal allowed--Motions Judge ignored legal definition of permanent resident in s. 2(1), which expressly excludes person who has ceased to be permanent resident pursuant to s. 24--Also ignored Canada (Minister of Employment and Immigration) v. Restrepo, [1989] 8 Imm. L.R. (2d) 161 (F.C.A.); Minister of Employment and Immigration v. Selby, [1981] 1 F.C. 273 (C.A.) which are still good law--Issue of abandonment under s. 24 issue of fact upon which right to appeal depends--Where issue of abandonment decided against person concerned, Board lacking jurisdiction to grant relief under s. 70(1)(b)--Motions Judge erred in law--Standard of judicial deference to be afforded Board's factual findings in relation to ss. 24, 70(1) one of patent unreasonableness--Factual issue whether respondent knew, when left Canada, Act imposed limit on length of absence--IAD not making factual finding Motions Judge attributing to it--Concluding respondent aware of rules, but chose to ignore them--Motions Judge's conclusion ignored actual findings of fact made by IAD based on evidence--IAD's findings not patently unreasonable--Answer to certified question: when adjudicator finding person losing permanent residence by application of s. 24, Board must, in determining whether has jurisdiction over appeal, determine whether adjudicator correctly decided whether person lost permanent residence; if Board concluding adjudicator correctly decided person losing permanent residence, Board without jurisdiction to consider appeal under s. 70(1)(b)--Immigration Act, R.S.C., 1985, c. I-2, ss. 2(1) "permanent resident" (as am. by S.C. 1992, c. 49, s. 1), 20(1)(a), 24(1)(a), 70(1) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1995, c. 15, s. 13).