A-476-86
Palwinder Kaur Gill (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
INDEXED AS: GILL V. CANADA (MINISTER OF EMPLOYMENT
AND IMMIGRATION)
Court of Appeal, Urie, Hugessen and MacGuigan
JJ.—Vancouver, January 22, 1987.
Immigration — Practice — Board's power to reopen
application for redetermination of claim to Convention refugee
status — Lugano case qualified — Immigration Act, 1976,
S.C. 1976-77, c. 52, ss. 71, 72 (as am. by S.C. 1984, c. 21, s.
81) — Immigration Appeal Board Act, R.S.C. 1970, c. I-3
(rep. by S.C. 1976-77, c. 52, s. 128), s. 11(3).
Judicial review — Applications to review — Immigration
— Board fettering own discretion in refusing to reopen
application for redetermination of claim to Convention refugee
status — Refusal based on unwarranted conclusion Court's
decision refusing, without reasons, application for extension of
time decision on merits of application for redetermination —
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28 —
Canadian Bill of Rights, R.S.C. 1970, Appendix III, s. 2(e) —
Canadian Charter of Rights and Freedoms, being Part I of the
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c.
11 (U.K.), s. 7.
In September 1984, the Immigration Appeal Board refused
to allow an application for the redetermination of the appli
cant's claim to Convention refugee status to proceed to an oral
hearing and determined that the applicant was not a Conven
tion refugee. After the period of time in which to apply for a
section 28 review had expired, the applicant, invoking the
intervening Supreme Court of Canada decision in Singh et al.
v. Minister of Employment and Immigration, [1985] 1 S.C.R.
177, applied to this Court seeking an extension of time for leave
to file a section 28 application against the Board's decision.
This Court refused the extension in August 1985, without
reasons. In July 1986, the Board dismissed an application for a
reopening of the initial application for redetermination. This
refusal was based on the assumption that the Court's decision
on the application for an extension of time was a decision on
the merits of the application for redetermination. This is an
application to review the Board's refusal to reopen the
application.
Held, the application should be allowed.
The Board was entirely mistaken in its interpretation of the
Court's refusal to grant an extension of time. The Board
therefore fettered its discretion in considering itself bound by
the Court's decision. In spite of this Court's decision in Lugano
v. Minister of Manpower and Immigration, [1977] 2 F.C. 605,
it is clear that the Board has the power, even if there are no
express statutory provisions to that effect, to reconsider its own
decisions, at least where it subsequently recognizes that it has
failed to meet the requirements of natural justice. And in this
case, in light of the Singh decision, there can be no doubt that
the Board's initial failure to grant an oral hearing constitutes
adequate reason for it to grant a rehearing.
It must be remembered, however, that whether the reopening
is allowed in any given case is a matter for the exercise of the
Board's discretion.
CASES JUDICIALLY CONSIDERED
APPLIED:
Singh et al. v. Minister of Employment and Immigra
tion, [1985] 1 S.C.R. 177; 17 D.L.R. (4th) 422; (1985),
58 N.R. 1; Woldu v. Minister of Manpower and Immi
gration, [1978] 2 F.C. 216 (C.A.); Posluns v. Toronto
Stock Exchange et al., [1968] S.C.R. 330; Plese v.
Minister of Manpower and Immigration, [1977] 2 F.C.
567 (C.A.).
CONSIDERED:
Lugano v. Minister of Manpower and Immigration,
[1977] 2 F.C. 605 (C.A.); Ridge v. Baldwin, [1964] A.C.
40 (H.L.).
COUNSEL:
Guy B. Riecken for applicant.
Gordon Carscadden for respondent.
SOLICITORS:
John Taylor & Associates, Vancouver, for
applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment of
the Court delivered orally in English by
MACGUIGAN J.: This section 28 [Federal Court
Act, R.S.C. 1970 (2nd Supp.), c. 10] application is
brought against a decision of the Immigration
Appeal Board ("the Board") of July 11, 1986, by
which the Board refused to reopen an application
for redetermination of the applicant's claim to
Convention refugee status in Canada.
In its earlier decision of September 24, 1984 on
her claim, the Board had refused to allow the
application to proceed to an oral hearing, and had
found the applicant not to be a refugee. No timely
application for review was made to this Court, but
following the decision of the Supreme Court of
Canada in Singh et al. v. Minister of Employment
and Immigration, [1985] 1 S.C.R. 177; 17 D.L.R.
(4th) 422; (1985), 58 N.R. 1 the applicant then
sought from this Court an extension of time for
leave to file a section 28 application against the
Board's 1984 decision. Her application to do so
(no. 85-A-57) was refused on August 21, 1985,
without reasons.
In its 1986 decision the majority of the Board
held that that decision by this Court preempted
the Board's right to consider reopening the matter.
The majority wrote as follows, Appeal Book, at
pages 62-63: .
[A]s Singh was decided some months before the Federal Court
of Appeal dismissed Mrs. Gill's application for judicial review,
one may infer that the learned judges did not consider that case
of assistance to Mrs. Gill's request for judicial review of the
decision of the Immigration Appeal Board on the matter of
redetermination of her claim to refugee status ... She cannot,
in light of the Federal Court's decision on that point, expect
that by bringing a motion before the Board for a reopening of
that determination that [sic] this Board would ignore an order
from a superior court, by whose decisions it is bound, and grant
such a request.
In a strong and well-reasoned dissent Board
member Anderson stated, Appeal Book, at page
66:
The denial of possible rights should not be based on an
assumption regarding the rationale of a decision for which
reasons were not given.
We are all agreed that the Board majority was
entirely mistaken in drawing the conclusion that
this Court's decision on an application for an
extension of time could be taken simply as a
decision on the merits of an application for rede-
termination. Nor could it bind the Board, which
has its own statutory jurisdiction.
In our view, therefore, the Board fettered its
discretion in considering itself so bound, if this was
otherwise a matter on which the Board possessed a
discretion. The larger question, then, is whether
the Board, as a creature of statute, has the juris
diction under sections 71 and '72 [as am. by S.C.
1984, c. 21, s. 81] of the Immigration Act, 1976
[S.C. 1976-77, c. 52] to reopen an application on
which it has made a final decision.
In deciding that the Board lacked jurisdiction
under the predecessor Immigration Appeal Board
Act [R.S.C. 1970, c. 1-3 (rep. by S.C. 1976-77, c.
52, s. 128)] to grant a motion for reopening an
appeal, this Court held in Lugano y. Minister of
Manpower and Immigration, [1977] 2 F.C. 605
(C.A.) that the Board had neither explicit nor
implicit statutory authority to do so. Jackett C.J.
said for the Court at page 608:
Once an appeal has been terminated by a section 11(3)
decision, I am of opinion that it remains terminated until the
decision terminating it is set aside; and in the absence of
express statutory authority a tribunal cannot set aside its own
decisions. [Subsection 11(3) of the Immigration Appeal Board
Act is the predecessor provisions of subsection 71(1) of the
Immigration Act, 1976.]
However, in Woldu v. Minister of Manpower
and Immigration, [1978] 2 F.C. 216 (C.A.),
decided October 27, 1977, another case under the
previous Act, Le Dain J. who had concurred in the
Lugano decision, suggested this significant qualifi
cation, at page 219:
Notwithstanding the general principle, affirmed in the
Lugano case, that an administrative tribunal does not have the
power, in the absence of express statutory authority, to set aside
its decision, there is judicial opinion to suggest that where a
tribunal recognizes that it has failed to observe the rules of
natural justice it may treat its decision as a nullity and rehear
the case. See Ridge v. Baldwin [1964] A.C. 40 at p. 79; R. v.
Development Appeal Board, Ex parte Canadian Industries
Ltd. (1970) 9 D.L.R. (3d) 727 at pp. 731-732, and compare
Posluns v. Toronto Stock Exchange [1968] S.C.R. 330 at p.
340.
This suggestion, clearly an obiter dictum, was
concurred in by MacKay D.J.
In Ridge v. Baldwin, supra, Lord Reid asserted
at page 79:
Next comes the question whether the respondents' failure to
follow the rules of natural justice on March 7 was made good
by the meeting on March 18. I do not doubt that if an officer or
body realises that it has acted hastily and reconsiders the whole
matter afresh, after affording to the person affected a proper
opportunity to present his case, then its later decision will be
valid.
This dictum was followed by the Supreme Court of
Canada in Posluns v. Toronto Stock Exchange,
supra where the Board of Governors of a stock
exchange granted a rehearing of a disciplinary
action. The Court upheld the mode of procedure as
well as the good faith of the tribunal, and at pages
338 and 340 Ritchie J. set out and adopted Lord
Reid's statement, supra, from Ridge v. Baldwin.
It might be argued that Lord Reid's statement is
an obiter dictum in that on the facts of Ridge v.
Baldwin the tribunal repeated at the second hear
ing its original failure to observe the principles of
natural justice, and the result would therefore have
been the same regardless of which hearing were
taken as determinative. But the same cannot be
said of the Supreme Court decision in the Posluns
case. There, the appellant had both proper notice
and representation by counsel at the second hear
ing, thereby repairing the defects the tribunal
might have committed at its first hearing. The
Court expressly described the second hearing as a
rehearing rather than an appeal, and also expressly
upheld the tribunal's decision on the basis of this
rehearing, without passing judgment on the
adequacy of the initial hearing. There appears to
have been no express statutory power in the tri
bunal to rehear matters disposed of, and in any
event it is evident from the Court's consideration
that such express statutory authority is not ma
terial to its decision. Clearly, a tribunal's power of
rehearing is to be implied in such circumstances. It
accordingly appears to us that the Immigration
Act, 1976 must be interpreted to allow reconsider
ation by the Board of its decisions, at least where it
subsequently recognizes that it has failed in natu
ral justice.
Moreover, in the light of the Supreme Court's
decision in Singh, supra, that the Board's denial of
an oral hearing to refugee claimants is a violation
of a person's "right to a fair hearing in accordance
with the principle of fundamental justice for the
determination of his rights and obligations" under
paragraph 2(e) of the Canadian Bill of Rights
[R.S.C. 1970, Appendix III] and of the right not
to be deprived of "life, liberty and security of the
person ... except in accordance with the principles
of fundamental justice" under section 7 of the
Canadian Charter of Rights and Freedoms [being
Part I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.)], there can
be no doubt that the Board's initial failure to grant
an oral hearing constitutes adequate reason for it
to grant a rehearing.
However, as was said by Urie J. for this Court
in Plese v. Minister of Manpower and Immigra
tion, [1977] 2 F.C. 567, at page 567:
It must be remembered that while the applicant may have the
right to seek to reopen the hearing before the Board, whether
the reopening is allowed in any given case is a matter for the
exercise of the Board's discretion.
We would therefore allow the application, set
aside the decision of the Immigration Appeal
Board, and refer the matter back to the Board to
exercise its unfettered discretion on the application
to reopen the applicant's claim to Convention
refugee status and to have the matter set down for
oral hearing by the Board.
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