[2000] 3 F.C. 563
A-456-99
The Minister of Citizenship and Immigration (Appellant) (Applicant)
v.
Walter Gonzales Toledo (Respondent) (Respondent)
Indexed as: Canada (Minister of Citizenship and Immigration) v. Toledo (C.A.)
Court of Appeal, Décary, Rothstein and Malone, JJ.A. —Winnipeg, March 27; Ottawa, April 5, 2000.
Citizenship and Immigration — Exclusion and removal — Removal of permanent residents — Appeal from dismissal of application for judicial review of IRB, Appeal Division’s decision to reopen appeal of deportation order when respondent deported after filing motion to reopen, but before granting of motion by Appeal Division — Ratio decidendi of S.C.C. in Grillas not authority for proposition appeal cannot be reopened if unsuccessful appellant removed from Canada before motion to reopen heard, decided — Current Immigration Act recognizing Appeal Division having continuing jurisdiction to reopen appeal where continuing jurisdiction already engaged when removed from Canada — Filing motion to reopen appeal not preventing Minister from executing deportation order “as soon as reasonably practicable” — Deportation order remaining valid even if stayed — Given modern communications, removed person rarely need return for rehearing.
This appeal was with respect to the following certified question: where the Appeal Division of the Immigration and Refugee Board dismissed the appeal of a deportation order, does it have 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? The Trial Division Judge answered the question in the affirmative.
A deportation order was issued against the respondent who appealed the removal order to the Immigration and Refugee Board, Appeal Division, thus giving rise to a statutory stay of the execution of the removal order. The Appeal Division denied the respondent’s appeal. The respondent then applied for leave to commence a judicial review proceeding, which the Federal Court denied, ending the statutory stay. At that point, Immigration Act, section 48 obliged the Minister to execute the deportation order “as soon as reasonably practicable”. The respondent filed a motion to reopen his appeal of the deportation order, citing new evidence. Before the application could be dealt with the respondent was deported. The application was subsequently allowed and an order was made permitting the respondent to return to Canada to attend the hearing of the reopened appeal. The Appeal Division rejected the argument that it did not have jurisdiction to hear the reopened appeal because the applicant had been deported before the decision to reopen the appeal was made, and ordered a three-year stay of execution of the deportation order. The Minister’s application for judicial review was dismissed.
Held, the appeal should be dismissed and the certified question answered in the affirmative.
The Supreme Court of Canada did not decide in Grillas that an appeal could not be reopened once an unsuccessful appellant had been removed from Canada before his motion to reopen had been heard and decided. Abbott J.’s statement in Grillas v. Minister of Manpower and Immigration that the Appeal Board (now Division) is entitled to reopen an appeal “until a deportation order has actually been executed” could not be relied upon because it was obiter dicta, and imputed words to Martland J. that he never used. Martland J. had only said that the Appeal Board had a continuing equitable jurisdiction, without making any statements on when this jurisdiction ended. Thus the words “until a deportation order has actually been executed” did not reflect the view of the other three members of the five-member panel. Finally, Abbott J. referred only to Immigration Appeal Board Act, section 15. He neither referred to section 16 nor to Immigration Act, section 35 which, when read together with subsection 15(2) (permitting the Appeal Board to allow a person “to come into” Canada once it has directed that the execution of a deportation order be stayed), clearly contemplated the possibility of the Appeal Board exercising its jurisdiction after the execution of a deportation order. Once it is accepted that the Appeal Board has a continuing equitable jurisdiction, there is no reason in principle why the Board, once properly seized with a motion to exercise that continuing jurisdiction, cannot grant the motion to reopen because the unsuccessful appellant was subsequently removed from Canada.
The provisions of the current Immigration Act recognize that the Appeal Division has continuing jurisdiction to reopen an appeal in cases where the continuing jurisdiction has already been engaged at the time an unsuccessful appellant is removed from Canada. Immigration Appeal Board Act, subsection 15(2) and section 16 were retained in Immigration Act, sections 74 and 75 and section 35 was expanded in sections 55 and 56. The finding in Grillas of a continuing equitable jurisdiction need not be reviewed in the light of the new legislation, which still allows the Appeal Division to reopen an appeal upon a motion filed by an unsuccessful appellant prior to his removal from Canada. The filing of a motion to reopen an appeal does not prevent the Minister from executing the deportation order “as soon as reasonably practicable”. The return in no way affects the continued existence and presumed validity of the deportation order. The deportation order remains valid even where it has been stayed. Furthermore, what with modern methods of communication, it will only be in special circumstances that a removed person need to be allowed to return for rehearing of an appeal.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Federal Court Act, R.S.C., 1985, c. F-7.
Immigration Act, R.S.C. 1970, c. I-2, s. 35.
Immigration Act, R.S.C., 1985, c. I-2, ss. 27 (as am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 4; S.C. 1992, c. 47, s. 78; c. 49, ss. 16, 123), 32(2), 48, 49(1)(b) (as am. by S.C. 1992, c. 49, s. 41), (c) (as am. idem), 50, 55(1), 56 (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 33), 70(1) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18), (5) (as am. idem), 74(2) (as am. idem), 75 (as am. idem), 83 (as am. by S.C. 1992, c. 49, s. 73).
Immigration Act, 1976, S.C. 1976-77, c. 52, s. 128.
Immigration Appeal Board Act, S.C. 1966-67, c. 90, ss. 15, 16.
CASES JUDICIALLY CONSIDERED
CONSIDERED:
Grillas v. Minister of Manpower and Immigration, [1972] S.C.R. 577; (1971), 23 D.L.R. (3d) 1.
REFERRED TO:
Canada (Minister of Citizenship and Immigration) v. Harrison, [1998] 4 F.C. 557 (1998), 155 F.T.R. 251; 47 Imm. L.R. (2d) 173 (T.D.); Ramkissoon v. Minister of Manpower and Immigration, [1978] 2 F.C. 290 (1977), 82 D.L.R. (3d) 406; 20 N.R. 361 (C.A.); Canada (Minister of Employment and Immigration) v. Clancy (1988), 5 Imm. L.R. (2d) 171; 86 N.R. 301 (F.C.A.); Canada (Minister of Employment and Immigration) v. Binns (1996), 122 F.T.R. 56 (F.C.T.D.).
APPEAL from dismissal of application for judicial review of Immigration and Refugee Board, Appeal Division’s decision to reopen an appeal of a deportation order after the deportation order was executed (Canada (Minister of Citizenship and Immigration) v. Immigration and Refugee Board (Can.) et al. (1999), 171 F.T.R. 116 (F.C.T.D.)) and certified question as to Board’s jurisdiction to reopen in such circumstances. Appeal dismissed and certified question answered in affirmative.
APPEARANCES:
Sharlene Telles-Langdon for appellant (applicant).
David Matas for respondent (respondent).
SOLICITORS OF RECORD:
Deputy Attorney General of Canada for appellant (applicant).
David Matas, Winnipeg, for respondent (respondent).
The following are the reasons for judgment rendered in English by
[1] Décary J.A.: This appeal is with respect to the following question certified by Sharlow J., then a member of the Trial Division of this Court, pursuant to section 83 [as am. by S.C. 1992, c. 49, s. 73] of the Immigration Act, R.S.C., 1985, c. I-2 (the Act):
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?
[2] In a judgment reported at (1999), 171 F.T.R. 116 (F.C.T.D.), the learned Judge answered the question in the affirmative. She relied for the most part on the decision rendered by Madam Justice Reed in Canada (Minister of Citizenship and Immigration) v. Harrison, [1998] 4 F.C. 557 (T.D.).
[3] The factual background is fairly simple. The respondent (Toledo) came to Canada as a permanent resident in 1990. In January 1994, he was convicted of a criminal offence, which led to an inquiry under section 27 [as am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 4; S.C. 1992, c. 47, s. 78; c. 49, ss. 16, 123] of the Act, and a determination that he was a person described in paragraph 27(1)(d), i.e. someone who has been convicted of an offence for which a term of imprisonment of more than six months has been, or five years or more may be, imposed. The inquiry in turn led, in June 1994, to the issuance of a deportation order pursuant to subsection 32(2) of the Act. Since the Minister did not issue an opinion that Toledo was a danger to the public under subsection 70(5) [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18] of the Act, Toledo had the right to appeal the removal order to the Appeal Division pursuant to subsection 70(1) [as am. idem], and he did so. The filing of that appeal gave rise to a statutory stay of the execution of the removal order in accordance with paragraph 49(1)(b) [as am. by S.C. 1992, c. 49, s. 41] of the Act.
[4] The Appeal Division denied Toledo’s appeal in October 1996. Toledo then filed an application for leave to commence a judicial review proceeding under the Federal Court Act, R.S.C., 1985, c. F-7. The filing of that application allowed the statutory stay to be continued (subparagraph 49(1)(c)(i) [as am. by S.C. 1992, c. 49, s. 41] of the Act).
[5] The Federal Court denied the application for leave to commence a judicial review proceeding in June 1997. That decision put an end to the statutory stay. At that point, section 48 of the Act obliged the Minister to execute the deportation order “as soon as reasonably practicable”.
[6] At some time in or before August, 1997, the immigration authorities commenced the work required to execute the deportation order. In the meantime, on August 8, 1997, Toledo filed a motion with the Appeal Division to reopen his appeal of the deportation order, citing new evidence. It is undisputed by the Minister that Toledo had the right, at that time, to file that motion. Further, it is not alleged by the Minister that Toledo’s motion was an eleventh-hour proceeding filed for the purpose of delaying his deportation.
[7] Toledo was informed, on September 22, 1997, that he would be removed from Canada on September 26, 1997. Toledo alleges that he faxed the Appeal Division a letter dated September 22, 1997, asking for disposition of the application to reopen before the date of removal, but with no result. On September 29, 1997, Toledo was deported to Guatemala.
[8] By order dated September 30, 1997, and signed October 16, 1997, the Appeal Division allowed Toledo’s motion to reopen the appeal. It did not know then that the deportation order had been executed.
[9] The hearing of the reopened appeal was scheduled for March 1998, and in January 1998, the Appeal Division made an order pursuant to section 75 [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18] of the Act to permit Toledo to return to Canada to attend the hearing of the reopened appeal.
[10] The reopened appeal was heard in March and April 1998. Toledo was present at the re-hearing. Counsel for the Minister argued before the Appeal Division that it had no jurisdiction to hear the reopened appeal because the appellant had been deported before the decision to reopen the appeal was made. The Appeal Division rejected that argument. In its decision, dated June 30, 1998, and signed July 2, 1998, the Appeal Division found in favour of the appellant and ordered a stay of execution of the deportation order for a term of three years, subject to certain conditions.
[11] The Minister applied to the Trial Division for judicial review on the basis that the Appeal Division’s decision was outside its jurisdiction. Sharlow J. dismissed the application, upheld the decision of the Appeal Division and certified the question set out in paragraph one of these reasons.
[12] The Court is concerned in this appeal with the jurisdiction of the Appeal Division to reopen an appeal when the unsuccessful appellant was removed from Canada after the filing of a motion to reopen but prior to the granting of that motion by the Appeal Division. It is not concerned with the jurisdiction of the Appeal Division to reopen an appeal when the unsuccessful appellant was removed prior to the filing of a motion to reopen, i.e. prior to the continuing jurisdiction of the Appeal Division being engaged.
[13] Nor is the Court concerned with the legality of the removal. The removal was made according to law. The Minister has a statutory duty to remove an unsuccessful appellant “as soon as reasonably practicable” (section 48 of the Act) unless a statutory stay of execution of the removal order is in force pursuant to sections 49 and 50 of the Act, and Parliament did not provide for a statutory stay at the application to reopen an appeal stage of the proceedings before the Appeal Division.
[14] The Court has also been informed that it is the policy of the Minister not to execute a removal order once the Appeal Division has granted a motion to reopen. It appears to be the view of the Minister that the effective reopening of an appeal is tantamount to an appeal for statutory stay purposes. That view is predicated on the recognition, by the Minister, of the ongoing equitable jurisdiction of the Appeal Division to reopen an appeal as set out by the Supreme Court of Canada in Grillas v. Minister of Manpower and Immigration, [1972] S.C.R. 577.
[15] The Minister relies heavily on the statement made by Abbott J. in Grillas (supra, at page 582) that the Appeal Board (now the Appeal Division) is entitled to reopen an appeal “until a deportation order has actually been executed.” That statement was subsequently referred to by this Court in Ramkissoon v. Minister of Manpower and Immigration, [1978] 2 F.C. 290 (C.A.) and in Canada (Minister of Employment and Immigration) v. Clancy (1988), 5 Imm. L.R. (2d) 171 (F.C.A.), and by Rouleau J. in Canada (Minister of Citizenship and Immigration) v. Binns (1996), 122 F.T.R. 56 (F.C.T.D.). The full text of the statement is as follows:
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. [My emphasis.]
[16] In my respectful view, the comments of Mr. Justice Abbott cannot be relied upon for the following reasons.
[17] First, the comments were, at best, obiter dicta since Mr. Grillas had never been removed from Canada.
[18] Second, the comments impute to Mr. Justice Martland words he never used. He had only said that the Appeal Board had a continuing equitable jurisdiction, without making any statements on when this jurisdiction ended. His exact words, at page 590, were: “this ‘equitable’ jurisdiction of the Board is a continuing jurisdiction, and not one which must be exercised once and for all”. As a result, the words “until a deportation order has actually been executed” reflect the view only of Mr. Justice Abbott and of Mr. Justice Judson who concurred with him; they do not reflect the view of the three other members of the five-member panel.
[19] There is a third, compelling reason why these comments should not be endorsed. Mr. Justice Abbott only referred to section 15 of the Immigration Appeal Board Act, S.C. 1966-67, c. 90, which read:
15. (1) Where the Board dismisses an appeal against an order of deportation or makes an order of deportation pursuant to paragraph (c) of section 14, it shall direct that the order be executed as soon as practicable, except that
(a) in the case of a person who was a permanent resident at the time of the making of the order of deportation, having regard to all the circumstances of the case, or
…
the Board may direct that the execution of the order of deportation be stayed, or may quash the order or quash the order and direct the grant of entry or landing to the person against whom the order was made.
(2) Where, pursuant to subsection (1), the Board directs that execution of an order of deportation be stayed, it shall allow the person concerned to come into or remain in Canada under such terms and conditions as it may prescribe and shall review the case from time to time as it considers necessary or advisable.
(3) The Board may at any time
(a) amend the terms and conditions prescribed under subsection (2) or impose new terms and conditions; or
He failed, however, to refer to section 16 of the Immigration Appeal Board Act which read:
16. Where a person who has been ordered deported and who has been returned to the place whence he came to Canada in accordance with the requirements of subsection (1) of section 24 of the Immigration Act, advises the Board in writing of his desire to appear in person before the Board on the hearing of his appeal against the order of deportation, the Board may allow such person to return to Canada for that purpose under such terms and conditions as it may prescribe.
and failed to refer to section 35 of the Immigration Act, R.S.C. 1970, c. I-2 which read:
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.
[20] These two sections, when read together with subsection 15(2) of the Immigration Appeal Board Act which gave the Appeal Board the power to allow a person “to come into” Canada once it has directed that the execution of a deportation order be stayed, clearly contemplate the possibility of the Appeal Board exercising its jurisdiction after the execution of a deportation order. Once it is accepted that the Appeal Board has a continuing equitable jurisdiction, there is no reason in principle to say that the Appeal Board, once properly seized with a motion to exercise that continuing jurisdiction, cannot grant the motion to reopen because the unsuccessful appellant was subsequently removed from Canada.
[21] The Immigration Appeal Board Act was repealed by section 128 of the Immigration Act, 1976, S.C. 1976-77, c. 52. The functions previously performed by the Immigration Appeal Board have been modified by subsequent legislation. They are now performed by the Immigration Appeal Division, whose jurisdiction and powers are defined in sections 69.4 to 80 of the Immigration Act, R.S.C., 1985, c. I-2, as amended.
[22] It has not been suggested by the Minister that the finding in Grillas of a continuing equitable jurisdiction should be reviewed in the light of the new legislation. As to whether the new legislation still allows the Appeal Division to reopen an appeal upon a motion filed by an unsuccessful appellant prior to his removal from Canada, the answer, clearly, is in the affirmative.
[23] Section 16 of the Immigration Appeal Board Act has been retained in a slightly different form in section 75 of the Act, which reads:
75. Where a person against whom a removal order 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.
[24] Subsection 15(2) of the Immigration Appeal Board Act has also been retained, in subsection 74(2) [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18] of the Act, which reads:
74. …
(2) Where the Appeal Division disposes of an appeal by directing that execution of a removal order or conditional removal order be stayed, the person concerned shall be allowed to come into or remain in Canada under such terms and conditions as the Appeal Division may determine and the Appeal Division shall review the case from time to time as it considers necessary or advisable.
[25] Subsection 55(1) and section 56 of the Act have expanded on former section 35 as follows:
55. (1) Subject to section 56, where a deportation order is made against a person, the person shall not, after he is removed from or otherwise leaves Canada, come into Canada without the written consent of the Minister unless an appeal from the order has been allowed.
…
56. (1) Where, pursuant to section 75, the Appeal Division allows a person to return to Canada for the hearing of his appeal against a removal order, the person may come into Canada for that purpose without the consent of the Minister.
(2) Where, pursuant to subsection 73(1), the Appeal Division directs that the execution of a removal order be stayed, the person against whom the order was made does not require the consent of the Minister to come into Canada at any time during the period for which that execution is stayed.
[26] I therefore conclude that the Supreme Court of Canada did not decide, in Grillas, supra, that an appeal could not be reopened once an unsuccessful appellant had been removed from Canada before his motion to reopen had been heard and decided. The provisions of the current Immigration Act recognize that the Appeal Division has continuing jurisdiction to reopen an appeal in cases where the continuing jurisdiction has already been engaged at the time an unsuccessful appellant is removed from Canada.
[27] It is not suggested, and I would most certainly not be prepared to rule, that the filing of a motion to reopen an appeal prevents the Minister from executing the deportation order “as soon as reasonably practicable”, as mandated by section 48 of the Act. That filing is not an event that triggers the application of the statutory stay provisions found in sections 49 and 50 and the Minister can in no way, at that stage, be prevented from executing the deportation order. The return, I hasten to add, can only be allowed for the “purpose” of the rehearing and it may be subject to “such terms and conditions” as the Appeal Division may determine. Properly speaking, the appellant cannot be said to have the right to return; he or she only has the right to seek leave to return, and even that return, where it is allowed, is for the very limited purpose of the rehearing. The return in no way affects the continued existence and presumed validity of the deportation order.
[28] It is of interest to note that counsel for the Minister, at the hearing, abandoned her argument to the effect that the execution of a removal order could not be stayed after the order had been executed. In an ordinary context, an argument to the effect that what has actually been done (in this case, the removal from Canada) can no longer be prevented, would make perfect sense. In the context of the Immigration Act, however, as we have previously seen, provisions are made for the return to Canada, with the Minister’s consent or with the Appeal Division’s approval, of a person who has been removed and these provisions necessarily imply that the Appeal Division may grant a stay even where a deportation order has been executed. What is important to remember, however, is that the deportation order remains valid even where it has been stayed. In the case at bar, for example, the Appeal Division, after the rehearing, did not quash the deportation order but ordered that its execution be stayed for three years.
[29] Finally, I cannot assume that in exercising its discretion under section 75 of the Act to allow the return to Canada of an appellant for the purpose of the reopening of an appeal, the Appeal Division will systematically thwart the exercise by the Minister of her statutory duty to remove unsuccessful appellants from Canada “as soon as reasonably practicable”. The Court was informed at the hearing that it is unusual for the Appeal Division to allow the return of a person removed from Canada for the purpose of the rehearing of the appeal. Modern methods of communications are such that the physical presence of an appellant at the rehearing of an appeal will only be needed in special circumstances.
[30] For these reasons, I would dismiss the appeal with costs to the respondent and answer the certified question in the affirmative.
Rothstein J.A.: I concur.
Malone J.A.: I concur.