A-614-88
Minister of Employment and Immigration
(Appellant)
v.
Faruk Ali Abdalla Nabiye (Respondent)
INDEXED AS: CANADA (MINISTER OF EMPLOYMENT AND
IMMIGRATION) V. NABIYE (C.A.)
Court of Appeal, Marceau, MacGuigan and Des-
jardins JJ.A.—Montréal, May 15, 1989.
Judicial review — Prerogative writs — Appeal from dismis
sal of application for certiorari and prohibition — Immigra
tion Appeal Board reopening application for redetermination
of refugee status to admit evidence obtained after initial
hearing — Tribunal exercising adjudicative powers may not
re-try matter, unless expressly authorized to do so by enabling
legislation: doctrine of functus officio — Board's power to
review matter continuing only (1) to grant humanitarian
remedy in s. 72 to permanent resident against whom deporta
tion order made, and (2) when initial decision made contrary to
rules of natural justice.
STATUTES AND REGULATIONS JUDICIALLY
CONSI DERED
Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 70, 72 (as
am. by S.C. 1984, c. 21, s. 81).
Immigration Appeal Board Act, S.C. 1966-67, c. 90, ss.
14, 15.
CASES JUDICIALLY CONSIDERED
APPLIED:
Singh v. Canada (Minister of Employment and Immi
gration) (1988), 6 Imm. L.R. (2d) 10 (F.C.A.).
DISTINGUISHED:
Grillas v. Minister of Manpower and Immigration,
[1972] S.C.R. 577; Gill v. Canada (Minister of Employ
ment and Immigration), [1987] 2 F.C. 425 (C.A.).
REVERSED:
Canada (Minister of Employment and Immigration) v.
Nabiye, T-303-88, Denault J., order dated 31/3/88.
COUNSEL:
Serge Frégeau for appellant.
Marie-Josée Houle for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
appellant.
Bélanger, Houle, Daigneault, Montréal, for
respondent.
The following is the English version of the
reasons for judgment of the Court delivered by
MARCEAU J.A.: This appeal from a judgment of
the Trial Division [T-303-88, Denault J., order
dated 31/3/88, without reasons] again raises the
question of whether the Immigration Appeal
Board (hereinafter "the Board") has the power to
review an application for redetermination of
refugee status after already having made a ruling
on this matter.
There is no need to deal with the facts at length
as the parameters of the problem can readily be
stated even in the abstract, but in any case the
issue is briefly as follows.
On December 8, 1986, following a formal proof
and hearing, the Board by a final decision dis
missed the application for redetermination of his
refugee status claim filed by the respondent, a
citizen of Ghana, pursuant to section 70 of the
Immigration Act, 1976 [S.C. 1976-77, c. 52] ("the
Act"). On June 17, 1987 the Board received from
counsel for the respondent an application to reopen
the application for redetermination of his client's
claim, so that he might present "evidence obtained
after the initial hearing". The Board granted this
application. The Minister of Employment and
Immigration, who was convinced that the Board
did not have the power to act as it intended to,
applied to a trial judge for writs of certiorari and
prohibition. The action was dismissed at first
instance and the Minister appealed to this Court.
My opening remarks might suggest that the
problem for solution has arisen many times. That
is not really the case. To my knowledge it is only
the second time that this Court has been directly
and clearly presented with the problem as stated in
the specific form it takes here, the first being the
case giving rise to the judgment in Singh v.
Canada (Minister of Employment and Immigra
tion) (1988), 6 Imm. L.R. (2d) 10 (F.C.A.). The
precise question to be answered, in light of the
facts of the case, is simply whether the Board had
the power to re-hear an application for redetermi-
nation of refugee status solely in order to admit,
and if necessary consider, evidence of new facts. In
Sarwan Singh the Court gave a clear negative
answer to this question. If doubts still exist on the
matter, this undoubtedly is because the Board's
power to review a matter after hearing it may exist
in certain exceptional circumstances, and the deci
sions which have recognized this possibility may
lead to confusion if care is not taken to distinguish
them.
Reference may be made in this regard to the
leading case of Grillas v. Minister of Manpower
and Immigration, [1972] S.C.R. 577, which
affirmed the "continuing power" of the Board to
grant the humanitarian remedy then contained in
section 15 of the Act [Immigration Appeal Board
Act, S.C. 1966-67, c. 90], now section 72, to a
permanent resident against whom a deportation
order has been made. There is also the judgment
of this Court in Gill v. Canada (Minister of.
Employment and Immigration), [1987] 2 F.C. 425
(C.A.), which referred to a power of the Board to
grant an application for redetermination when it
appeared that its initial decision was made con
trary to the rules of natural justice or was other
wise null and void. The distinctions that must be
made have to be seen in light of these two
judgments.
The basic idea, I think, is that a tribunal exer
cising adjudicative powers may not re-try a matter
after it has disposed of that matter in accordance
with the Act, unless it is expressly authorized to do
so by its enabling legislation. This is the well-
known principle of functus officio. However, we
should not forget the conditions for its application.
The principle applies first to the exercise of an
adjudicative power, which explains the Grillas
exception: the remedy of section 15 of the then
existing legislation' was not strictly speaking an
' Subsection 1 of s. 15 of the Immigration Appeal Board
Act, S.C. 1966-67, c. 90, ss. 14 and 15 (which is contained
essentially in s. 72 of the Immigration Act, 1976, S.C.
1976-77, c. 52, as am. by S.C. 1984, c. 21, s. 81), read as
follows:
(Continued on next page)
adjudicative power; and it then implies, at least in
its formulation, that the tribunal rendered a deci
sion in accordance with the Act, which undoubted
ly is the reasoning behind Gill, as the Court
thought that a decision rendered contrary to the
rules of natural justice could be treated by the
tribunal as if it were not a decision.
(Continued from previous page)
15. (1) Where the Board dismisses an appeal against an
order of deportation or makes an order of deportation pursu
ant to paragraph (c) of section 14, it shall direct that the
order be executed as soon as practicable, except that
(a) in the case of a person who was a permanent resident
at the time of the making of the order of deportation,
having regard to all the circumstances of the case, or
(b) in the case of a person who was not a permanent
resident at the time of the making of the order of deporta
tion, having regard to
(i) 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 or will suffer unusual hardship, or
(ii) the existence of compassionate or humanitarian
considerations that in the opinion of the Board warrant
the granting of special relief,
the Board may direct that the execution of the order of
deportation be stayed, or may quash the order or quash the
order and direct the grant of entry or landing to the person
against whom the order was made.
72. (1) Subject to subsection (3), where a removal order
is made againt a permanent resident or against a person
lawfully in possession of a valid returning resident permit
issued to him pursuant to the regulations, that person may
appeal to the Board on either or both of the following
grounds, namely,
(a) on any ground of appeal that involves a question of law
or fact, or mixed law and fact; and
(b) on the ground, that having regard to all the circum
stances of the case, the person should not be removed from
Canada.
(2) Where a removal order is made against a person who
(a) has been determined by the Minister or the Board to
be a Convention refugee but is not a permanent resident,
or
(b) seeks admission and at the time that a report with
respect to him was made by an immigration officer pursu
ant to subsection 20(1) was in possession of a valid visa,
that person may, subject to subsection (3), appeal to the Board
on either or both of the following grounds, namely,
(c) on any ground of appeal that involves a question of law
or fact, or mixed law and fact, and
(Continued on next page)
Accordingly, in the case at bar the Court can
only recognize the validity of the position taken in
Sarwan Singh and repeat that the Board does not
have jurisdiction to reopen an application for rede-
termination of refugee status which it has already
disposed of solely in order to hear evidence of new
facts.
I would therefore allow the appeal, set aside the
order made at first instance and find the decision
of the Board allowing the respondent's application
to reopen to be void.
(Continued from previous page)
(d) on the ground that, having regard to the existence of
compassionate or humanitarian considerations, the person
should not be removed from Canada.
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.