Sudarshan Lal (Appellant)
v.
Minister of Manpower and Immigration
(Respondent)
Court of Appeal, Jackett C.J., Kerr J. and Shep-
pard D.J.—Vancouver, B.C., October 19, 1972.
Immigration—Judicial review—Deportation order upheld
by Immigration Appeal Board—Appeal from—Jurisdic-
tion—Application for new hearing rejected—Immigration
Appeal Board Act, R.S.C. 1970, c. I-3.
On May 28, 1971, the Immigration Appeal Board dis
missed L's appeal from a deportation order, but the order
evidencing the dismissal signed by an officer of the Board
was not signed until after June 1, 1971. The Federal Court
Act came into force on that date. Subsequently L applied to
the Board for a new hearing on the ground that proper
notice of the hearing of the appeal by the Board had not
been given. The Board dismissed his application. L
appealed to this Court from the dismissal of his appeal and
sought judicial review under section 28 of the Federal Court
Act of that dismissal and also of the dismissal of his
application for a new hearing.
Held, the appeal and the applications for judicial review
must be dismissed.
1. The Court had no jurisdiction with respect to the
dismissal of his appeal. Seaspan International Ltd. v. The
Kostis Prois [1971] F.C. 103; In re Copyright Appeal Board
[1971] F.C. 170, followed.
2. This was not a case in which the Board had power to
re-open its hearing for the purpose of giving further consid
eration to relief under section 15 of the Immigration Appeal
Board Act, R.S.C. 1970, c. I-3, and therefore the Board did
not err when it refused to do so. Grillas v. Minister of
Manpower & Immigration [1972] S.C.R. 577, referred to.
APPEAL from Immigration Appeal Board
and applications for judicial review.
J. A. Drysdale for appellant.
N. Mullins, Q.C. for respondent.
JACKETT C.J. (orally)—We have decided not
to call on you Mr. Mullins.
In this proceeding there is an appeal and a
section 28 application in respect of the dismis
sal by the Immigration Appeal Board of the
appeal from the deportation order and a section
28 application in respect of the refusal of the
Board to order a new hearing.
In so far as the proceedings in respect of the
dismissal of the appeal is concerned, we are
satisfied that this Court has no jurisdiction. We
have considered Mr. Drysdale's submission that
that decision was made after the coming into
force of the Federal Court Act on June 1, 1971.
We are satisfied however that, in the absence of
some statute or regulation to the contrary, the
practice followed by the Immigration Appeal
Board as a court of record of having its deci
sions evidenced by a document signed by an
appropriate official is a proper practice and
should be recognized. We are therefore of opin
ion that the order dismissing the appeal from
the deportation order was made on May 28,
1971, and that, in accordance with previous
decisions of this Court, we have no jurisdiction
to entertain an appeal or a section 28 applica
tion in relation thereto. See Seaspan Interna
tional Ltd. v. The Kostis Prois [1971] F.C. 103,
and In re the Application of the Canadian Asso
ciation of Broadcasters [1971] F.C. 170.
In so far as the decision of July 19, 1972, is
concerned, the basis of the application to the
Immigration Appeal Board for a new hearing
was that proper notice of the hearing of the
appeal by the Board had not been given. In our
view, however, if an appeal from a deportation
order is dismissed, without giving the appellant
a fair hearing, the proper remedy is by way of
an appeal from the order dismissing the appeal,
which appeal in this case should have been to
the Supreme Court of Canada. It is true that the
Board can, in certain cases, re-open its hear
ings, but, as we understand the position, it can
only re-open for the purpose of giving further
consideration to relief under section 15 of the
Immigration Appeal Board Act. See Grillas v.
Minister of Manpower and Immigration (1972)
23 D.L.R. (3d) 1. As the Board had no power to
set aside its order of May 28, 1972, and re-hear
the appeal, it cannot be said to have erred when
it refused to do so.
The appeal and the section 28 applications
must, therefore, all be dismissed.
We should have been unhappy at having to
dispose of this proceeding on these somewhat
technical grounds if we had not reviewed the
substantive attack on the deportation order with
counsel for the appellant without being able to
perceive any possibility of a successful attack
on it even if the matter were properly before
the Court.
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.