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A-492-77
Marleny de Fatima Cardona Alvarez (Applicant) v.
Minister of Manpower and Immigration (Re- spondent)
Court of Appeal, Heald and Le Dain JJ. and MacKay D.J.—Toronto, May 18; Ottawa, June 8, 1978.
Immigration — Deportation — Written request for reasons of Immigration Appeal Board denied because request not made within 30 days of disposition of appeal as prescribed by Rule 19 of Immigration Appeal Board Rules — Whether or not Rule 19 is ultra vires the Immigration Appeal Board Act — Whether or not refusal to give reasons invalidates the decision — Whether or not Board failed to exercise its equita ble jurisdiction under s. 15 of the Act — Immigration Appeal Board Act, R.S.C. 1970, c. I-3, ss. 7(3), 8(1), 15(1) — Immi gration Appeal Board Rules, SOR/67-559, Rule 19.
This is an appeal from a decision of the Immigration Appeal Board dismissing an appeal from a deportation order made against appellant. Appellant requested the Board by letter to give reasons for its decision, but the Board refused to do so on the ground that the request was not made within 30 days of the date of the disposition of the appeal, as required by section 19 of the Immigration Appeal Board Rules. The grounds for appeal are that section 19 of the Rules is ultra vires the Immigration Appeal Board Act and the refusal to give reasons for the decision invalidates the decision, and the Board failed to exercise its equitable jurisdiction under section 15 of the Act.
Held, the appeal is dismissed. Rule 19 is inconsistent with section 7(3) in so far as it limits the time within which a request for reasons may be made and as such is ultra vires. It abridges the right which is conferred in unqualified terms by section 7(3). Had Parliament intended that there be a time limit within which a request for reasons may be made it would presumably have expressly authorized the Board to fix such a limit. The duty to give reasons is not a condition precedent to the exercise of the power of decision or a part of the decision. It is a duty that arises upon request after the disposition of the appeal. Failure to give reasons in such circumstances cannot affect the jurisdiction of the Board to make the decision or otherwise be an error of law in making the decision. The remedy in such case must be by way of mandamus under section 18 of the Federal Court Act. No inference that the Board did not consider equitable relief may be drawn from a refusal to give reasons upon the ground that the request was not made within the time fixed by the Rules. There is no basis for concluding here that failure to give reasons was because the Board had not considered the equitable relief provided by section 15.
APPEAL. COUNSEL:
Gale Rubenstein for applicant. Brian Segal for respondent.
SOLICITORS:
Atlin, Goldenberg, Cohen & Armel, Toronto, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment rendered in English by
LE DAIN J.: This is an appeal from a decision of the Immigration Appeal Board on March 3, 1977 dismissing an appeal from a deportation order made against the appellant on April 30, 1976. The appellant requested the Board by letter dated April 13, 1977 to give reasons for its decision, but the Board refused to do so on the ground that the request was not made within thirty days of the date of the disposition of the appeal as required by Rule 19 of the Immigration Appeal Board Rules, SOR/67-559, which reads as follows:
19. Where either of the parties to an appeal requests the Board to give reasons for its disposition of the appeal, pursuant to subsection (3) of section 7 of the Act, such request shall be made in writing, signed by the party making it or his counsel and filed with the Registrar within thirty days of the date of the disposition of the appeal.
The grounds of appeal are the following:
1. Rule 19 of the Rules is ultra vires the Immi gration Appeal Board Act, R.S.C. 1970, c. I-3, and the refusal to give reasons for the decision invalidates the decision; and
2. The Board failed to exercise its equitable jurisdiction under section 15 of the Act.
The provision of the Act which requires the Board to give reasons for its decision is section 7(3), which reads as follows:
7. ...
(3) The Board may, and at the request of either of the parties to the appeal shall, give reasons for its disposition of the appeal.
Section 8(1) of the Act empowers the Board to make rules as follows:
8. (1) The Board may, subject to the approval of the Gover nor in Council, make rules not inconsistent with this Act governing the activities of the Board and the practice and procedure in relation to appeals to the Board under this Act.
Rule 19, quoted above, purports to have been made in the exercise of this authority. It must be conceded that the Rule is broadly speaking one "governing the activities of the Board and the practice and procedure in relation to appeals", but in my opinion it is one that is inconsistent with section 7(3) in so far as it limits the time within which a request for reasons may be made, and as such is ultra vires. It abridges the right which is conferred in unqualified terms by section 7(3). Rule 19 suggests that a request for reasons may be made only after the disposition of an appeal. This in itself is clearly inconsistent with section 7(3), which implies no such limitation. Had Parliament intended that there be a time limit within which a request for reasons may be made it would presum ably have expressly authorized the Board to fix such a limit as it did in section 19 of the Act with respect to notice of appeal. It may well be desir able, from a practical point of view, that there be such a time limit, but the power to fix one cannot in my opinion be found in the terms of section 8(1).
The next question is whether a refusal to give reasons, pursuant to a request for reasons follow ing the disposition of an appeal, vitiates or invali dates the decision of the Board. I do not see how it can do so. The duty to give reasons in such a case is not a condition precedent to the exercise of the power of decision or a part of the decision. It is a duty that arises upon request after the disposition of the appeal. I cannot see how the failure to give reasons in such circumstances can affect the juris diction of the Board to make the decision or otherwise be an error of law in making the deci sion. The remedy in such case must be by way of mandamus under section 18 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10. Where the duty to give reasons arises before the decision is made there is authority to support the view that the failure to give reasons, or sufficient reasons, may be a ground for setting the decision aside. But in the present case the Board did not, at the time it
rendered its decision, have a duty to give reasons. That duty only arose upon the request for reasons.
The appellant also contended that the Board failed to exercise its equitable or humanitarian jurisdiction under section 15(1) of the Immigra tion Appeal Board Act, and that this may be inferred not only from the transcript of the hearing but also from the failure to give reasons. The appellant was not represented by counsel at the hearing. She was informed of her right to counsel, but she expressed the wish to proceed without counsel. The appellant does not base any argument on the lack of counsel as such, although she may suggest that there was a particular duty on the Board in such circumstances to make sure that everything that could have a bearing on the ques tion of equitable relief was elicited in the course of the appellant's testimony. The words "having regard to all the circumstances" in section 15(1) may well imply not only that the Board must consider all the evidence that is put before it by a party of his own initiative but must satisfy itself by its own inquiry that it has ascertained and con sidered all the pertinent circumstances of a case. In my opinion the transcript of the hearing does indicate that the Board made an effort to elicit testimony as to all such circumstances and that in fact the case that could be made for equitable relief was put before it. Counsel for the appellant in this Court conceded that the essential facts were before the Board.
At one point in the hearing the Board put the following question to the appellant:
Now, you've told us why you would like to stay in Canada and answered the questions; is there anything else particularly you would like to tell us before Mr. Bhabba tells us the position of—what the position of the Minister is?
At the conclusion of the hearing counsel for the Minister said:
I would further respectfully submit that with the circumstances that have been brought out in this case, grounds do not exist for the granting of relief and we urge that the Board direct the deportation of Miss Cardona.
In my opinion both of these statements clearly refer to the equitable relief provided by section 15 of the Act and preclude any possible inference from the record that the Board did not consider such relief. Further, I cannot see how any such inference may be drawn from a refusal to give reasons upon the ground that the request was not made within the time fixed by the Rules. The cases show that an inference may be drawn from insuffi cient reasons in certain circumstances that a tri bunal has misdirected itself as to the law, but that is quite a different matter. There is no basis for concluding here that the failure to give reasons was because the Board had not considered the equitable relief provided by section 15.
For the foregoing reasons I would dismiss the appeal.
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HEALD J.: I concur.
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MACKAY D.J.: I concur.
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