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A-227-79
Osama Abdel Baky (Applicant) v.
Minister of Employment and Immigration (Respondent)
Court of Appeal, Heald and Ryan JJ. and Smith D.J.—Vancouver, October 23 and 25, 1979.
Judicial review Immigration Application to review and set aside Immigration Appeal Board's decision dismissing applicant's motion to reopen his appeal of deportation order made against him At a reopened hearing, applicant pro posed to bring expert witnesses to testify as to the serious situation facing him, because of his failure to meet military obligations in his homeland, if he were to return there Board's statement, that it had never and would not exercise its equitable jurisdiction because of such evidence, was a failure to exercise its jurisdiction amounting to a complete denial of jurisdiction Application granted Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
APPLICATION for judicial review. COUNSEL:
P. Rankin for applicant. H. Wruck for respondent.
SOLICITORS:
Rankin, Stone & McMurray, Vancouver, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment rendered in English by
HEALD J.: This is a section 28 application to review and set aside a decision of the Immigration Appeal Board dated October 26, 1978, dismissing the applicant's motion to reopen his appeal of the deportation order made against him on December 5, 1974. At such a reopened hearing the applicant would propose to bring expert witnesses before the Board to testify with respect to the seriousness of the situation in which the applicant would find himself if he were to return to Egypt, his native country. The affidavit evidence filed in support of the motion to reopen indicates that the applicant
deserted the Egyptian Army in December 1967 in active service while in combat and indicates fur ther that there has been no amnesty for deserters and that the punishment for desertion would be very severe including the possibility of execution. In refusing the motion to reopen, the majority reasons for the Board deal with this proposed new evidence as follows—
Whether because Baky is a deserter or a draft-dodger, he is in difficulty with the authorities in Egypt as a result of his conduct relative to his responsibilities as a citizen of that country. The expert witnesses would give evidence with respect to the degree of that difficulty. This Board has never found that having to face the consequences of failure to meet one's obliga tions as a citizen of one's own country is by itself a basis for admission to Canada and would not so find in this case.
In our view, the Board, on a motion of this kind, is required to consider whether the proposed new evidence, if proven and accepted by the Board, is of sufficient import to persuade the Board to reconsider its original decision. In making that decision, the Board must ask itself the following questions—(1) whether, by present-day Canadian standards, there exists compassionate or humani tarian considerations, and (2) whether such con siderations warrant the granting of special relief under the provisions of section 15 of the Immigra tion Appeal Board Act, R.S.C. 1970, c. 1-3'.
It is our further view that the Board, by virtue of the passage quoted supra, has foreclosed the possibility of such drastic treatment, as is set out in the affidavit material filed herein, ever being sufficient to warrant the Board's exercise of its equitable jurisdiction. In stating flatly that the Board never has and would not, in this case, exercise its equitable jurisdiction because of such evidence, it has, in our view, failed to exercise its jurisdiction under the statute and such failure amounts to a complete denial of the Board's jurisdiction.
' Compare Toan Cong Vu v. Minister of Manpower and Immigration [1973] F.C. 529.
Accordingly, I would allow the section 28 application, set aside the decision of the Immigra tion Appeal Board dated October 26, 1978 and refer the matter back to the Board for reconsidera tion of the applicant's motion to reopen the appeal in a manner not inconsistent with these reasons.
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RYAN J.: I concur.
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SMITH D.J.: I concur.
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