A-88-74
Rebecca Fogel (Applicant)
v.
Minister of Manpower and Immigration
(Respondent)
Court of Appeal, Thurlow, Pratte and Ryan JJ.—
Ottawa, February 6 and 7, 1975.
Judicial review—Immigration—Deportation—Return to
Canada without permission—Further order for deportation—
Board declining to exercise "equitable jurisdiction"—Declin-
ing re-hearing—No error in law under Federal Court Act, s.
28(1)—Immigration Act, R.S.C. 1970, c. I-2, ss. 15, 18, 35—
Immigration Appeal Board Act, R.S.C. 1970, c. I-3, ss. 11, 15.
The applicant who had been deported from Canada, returned
without the permission of the Minister and her deportation was
again ordered. In dismissing her appeal, the Immigration
Appeal Board declined to exercise its equitable jurisdiction
under section 15 of the Immigration Appeal Board Act. The
applicant then moved before the Board for an order to reopen
the hearing and permitting her to adduce new evidence, rele
vant under section 15. The motion was dismissed. A section 28
application was brought to review this decision.
Held, dismissing the application, there was no error in law
under the Federal Court Act, section 28(1). The fact that a
member of the Board who sat on the appeal was subsequently a
member of the Board dismissing the application for re-hearing
was not in itself contrary to the principle of natural justice,
where the allegation of actual bias was disclaimed. Nor was it
in breach of natural justice that the Board failed to grant a
longer adjournment before hearing the motion. The Board
considered and gave reasons for rejecting the applicant's sub
missions under section 15(1)(b)(i) and (ii) of the Immigration
Appeal Board Act. As to the Board's proceeding under section
15(1)(b)(i) (as re-enacted in S.C. 1973-74, c. 27, section 6) it
was contended before the Court of Appeal that application
should be made of this clause as it read before its re-enactment,
.. the existence of reasonable grounds for believing that if
execution of the order is carried out the person concerned will
be punished for activities of a political character." There was
nothing before the Board at any stage to bring the applicant
within this provision, so it was immaterial that the Board did
not treat the matter on the basis of the previous wording.
Nord-Deutsche Versicherungs Gesellschaft v. The Queen
[1968] 1 Ex.C.R. 443, applied.
JUDICIAL review.
COUNSEL:
W. O'Halloran and A. D. Custance for
applicant.
L. S. Holland for respondent.
SOLICITORS:
W. O'Halloran, Ottawa, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment of
the Court delivered orally in English by
THURLOW J.: This is an application under sec
tion 28 of the Federal Court Act to review and set
aside a decision of the Immigration Appeal Board
dismissing a motion for an order to reopen a
hearing in which an appeal from a deportation
order against the applicant had been dismissed.
The applicant had been deported from Canada
in July 1969 pursuant to an order of deportation
made against her by a Special Inquiry Officer in
April 1969, her appeal against that order having
been dismissed by the Immigration Appeal Board.
The applicant returned to Canada in January 1973
without first having obtained the consent of the
Minister of Manpower and Immigration to be
admitted to Canada. She was arrested and
detained for inquiry pursuant to section 15 of the
Immigration Act, which provides in effect that a
person may be arrested or detained for inquiry and
deportation if upon reasonable grounds he or she is
suspected of being a person, other than a Canadian
citizen or a person with Canadian domicile, who
"... returns to or remains in Canada contrary to
this Act after a deportation order has been made
against him ...." Section 35 of the Act prohibits
admission of such person to Canada without the
consent of the Minister. The inquiry was held on
July 24, 1973 and the Special Inquiry Officer
found that the applicant was a person within sub-
paragraph 18(1)(e)(ix) of the Immigration Act
and ordered her deported.
The applicant then appealed to the Immigration
Appeal Board under section 11 of the Immigration
Appeal Board Act. The appeal was heard on
August 30 and 31, 1973, and was dismissed on
October 2, 1973. On dismissing the appeal, the
Board considered whether to exercise its "equit-
able jurisdiction" under section 15 of the Act, but
declined to do so, and directed that the deportation
order be executed as soon as practicable. On
December 7, 1973, the applicant gave notice that
an application would be made on her behalf to the
Immigration Appeal Board for an order reopening
the hearing of August 30 and 31, 1973, and per
mitting her to submit new and further evidence,
relevant under section 15 of the Immigration
Appeal Board Act, on a number of topics. The
motion was heard on February 18 and 19, 1974,
and was dismissed. It is in respect of this order
dismissing the motion that this section 28 applica
tion was brought.
In an application under section 28, the grounds
on which this Court may set aside an order are
limited. Such an order may be set aside only
... upon the ground that the board, commission or tribunal
(a) failed to observe a principle of natural justice or other
wise acted beyond or refused to exercise its jurisdiction;
(b) erred in law in making its decision or order whether or
not the error appears on the face of the record; or
(c) based its decision or order on an erroneous finding of fact
that it made in a perverse or capricious manner or without
regard for the material before it.
It is important to note that, in this application,
the decision of the Immigration Appeal Board to
deny the appeal from the Special Inquiry Officer's
decision to deport is not in question, nor is its
decision not to grant "equitable" relief. It is only
the decision of the Board not to reopen the hearing
that is challenged.
The applicant submitted that the fact that a
member of the Board who had sat on her appeal in
July, 1969 was also a member of the Board that
dismissed her application for rehearing warranted
setting aside the decision. Essentially the claim
was that, having been involved in the prior decision
to deport, the member could not decide the new
question without at least the appearance of an
adverse predisposition. Thus, it was submitted, his
participation in the hearing in question was con-
trary to a principle of natural justice, the principle
that a person called upon to judge must not only
be, but appear to be, unbiased. When the point
was taken before the Board at the opening of its
hearing, counsel for the applicant expressly dis
claimed any allegation of actual bias.
In our opinion, the principle of natural justice
invoked is not offended simply because, as in this
case, the person adjudicating has participated in a
prior adjudication of another matter involving the
same party. If it were otherwise, a judge, once
having tried and convicted an individual, would
thenceforth be precluded from trying him on
another charge. See Nord-Deutsche Versicherungs
Gesellschaft v. The Queen [1968] 1 Ex.C.R. 443.
Nor do we think there is any basis for the
submission made before us that the Board failed to
observe a principle of natural justice in not grant
ing a longer adjournment before the motion to it
was heard.
The material put before the Board on the
motion consisted of a number of documents tend
ing to establish that since the hearing of her appeal
by the Board the applicant had succeeded in
renouncing her United States citizenship and had
thus become a stateless person, two affidavits by
persons who had been at one time or another
concerned in defending the applicant on certain
charges brought against her in the United States,
an affidavit by an attorney who had acted for her
in connection with a claim for workmen's compen
sation and had succeeded in having her claim
recognized and payment reinstated and a letter
from a physician who had recently examined her
in Ottawa. There was also an affidavit by J. B.
Lanctot who described himself as the Canadian
correspondent at the United Nations High Com
mission for refugees, stating that he had sent to his
headquarters at Geneva certain materials provided
to him by the applicant, "for consultation, com
ment and guidance thereby making available unof
ficially, the good offices of the correspondent."
The Board in its reasons dealt with each of these
items, pointing out their weakness as evidence and
their shortcomings for the purpose of influencing
the Board to change the decision on the applicant's
appeal and grant relief under section 15 of the
Immigration Appeal Board Act. It concluded by
rejecting her claim to refugee status within the
meaning of subparagraph 15(1)(b)(i) of that Act,
as amended with effect from August 15, 1973,
while her appeal was pending, and by rejecting as
well her claim to reopen her appeal for reconsider
ation under subparagraph 15(1)(b)(ii) of the Act
as the evidence other than that of her renunciation
of citizenship was not new and none of it was
"practically conclusive, i.e. 'it would not furnish a
"sufficient reason" for reconsideration of the origi
nal decision on appeal.' "
On the hearing of the application to this Court
counsel took a somewhat different position from
what had been put forward before the Board. He
submitted that the former provision of subpara-
graph 15(1)(b)(i) was applicable and prescribed a
different test, which the Board did not apply, i.e.,
that of "the existence of reasonable grounds for
believing that if execution of the order is carried
out the person concerned will be punished for
activities of a political character." He also con
tended that the Board had applied too stringent a
test in deciding not to grant the application.
With respect to the failure of the Board to
consider the case having regard to the former
provision, we are of the opinion that there was
nothing before the Board at any stage upon which
it might properly have concluded either that the
offences of which the applicant has been convicted
in the United States or the charges presently pend
ing against her in respect of which she may be
subject to punishment on her return to the United
States were offences of a political character or that
there were reasonable grounds for believing that
she would be punished for activities of a political
character if she were returned to the United
States. In our view, therefore, it is immaterial that
the Board did not deal with the matter on the basis
of that being the provision applicable to the appli
cant's case.
Moreover, there was in our view nothing in the
material put before the Board that was likely to
persuade the Board to grant relief under subpara-
graph 15(1) (b) (ii) and it is apparent from the
observations made by the Board on the several
parts of the material that that was the view it took
of them. We think the reasons show that the Board
considered and evaluated the evidence and, finding
it unpersuasive, declined to reopen the hearing of
the appeal.
In these circumstances, while we think that the
discretion of the Board to reopen a hearing is
unfettered and should not be circumscribed by the
adoption of rigid rules for its exercise, we do not
think the Board's refusal of the applicant's motion
for a rehearing can be regarded either as an
unwarranted exercise of its discretion or as being
founded on any error of law.
The application will therefore be dismissed.
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.