T-914-89
Ahmad Osman Eltassi (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
INDEXED AS: ELTASSI V. CANADA (MINISTER OF EMPLOY
MENT AND IMMIGRATION) (T.D.)
Trial Division, Martin J.—Winnipeg, June 20;
Ottawa, July 25, 1989.
Immigration — Practice — Jurisdiction of Immigration and
Refugee Board, Appeal Division — Immigration Appeal
Board ordering stay of execution of removal order in 1987 —
Prior to oral review of stay, Minister seeking order dismissing
appeal and directing execution of removal order — Matter
adjourned as applicant objecting to composition of Board —
Arguing same Board required to hear Minister's application
and conduct oral review as stayed execution of removal order
— Legislation coming into force January 1, 1989 replacing
Immigration Appeal Board with Immigration and Refugee
Board — S. 49 of amending Act providing where former Board
before, on or after commencement day, staying execution of
removal order, Appeal Division of new Board to review case —
As s. 49 specifically addressed to situation, s. 48, requiring
former Board to dispose of appeals commenced before com
mencement day, not applicable — S. 48 contemplating appeals
under s. 72 and applications for redetermination of Convention
refugee claims pursuant to s. 70 — Immigration Appeal
Division appropriate body to review stay of execution of
removal order.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Act to amend Immigration Act, 1976, S.C. 1988, c. 35,
s. 49.
Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 59 (as
am. by S.C. 1988, c. 35, s. 18), 70, 72(1) (as am. by
S.C. 1984, c. 21, s. 81), 75(1), 76(3) (as am. by S.C.
1988, c. 35, ss. 18, 49).
Immigration Appeal Board Rules (Appellate), 1981,
SOR/81-419, s. 38(1)(a)(ii).
COUNSEL:
David Matas for applicant.
Brian Hay for respondent.
SOLICITORS:
David Matas, Winnipeg, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for order ren
dered in English by
MARTIN J.: The applicant seeks orders for cer-
tiorari and mandamus quashing the decision of
the Immigration Appeal Board to proceed with a
review of an order of the Board pursuant to sub
section 76(3) [as am. by S.C. 1988, c. 35, ss. 18,
49] of the Immigration Act, 1976 [S.C. 1976-77,
c. 52] with a panel of the Board constituted, in
part, of the original panel that heard the appeal of
the applicant and in part of a new member, and
ordering the Board to proceed either with the
original panel that granted the stay of execution of
the removal order or with the two remaining origi
nal members.
The determination of the issues in this matter
have been complicated by the 1988 amendments to
the Immigration Act, 1976 (the former Act) which
were proclaimed in force as of January 1, 1989. By
that amendment, S.C. 1988, c. 35, the former
Immigration Appeal Board was replaced by the
Immigration and Refugee Board consisting of two
divisions, the Convention Refugee Determination
Division and the Immigration Appeal Division. In
this matter I am concerned only with the latter
Division.
This application has its roots in an appeal pursu
ant to subsection 72(1) [as am. by S.C. 1984, c.
21, s. 81] of the former Act against a removal
order made against the applicant. On January 8,
1987 the Immigration Appeal Board, consisting of
L. Goodspeed, G. Vidal and B. Rayburn, ordered a
stay of the execution of the removal order to
January 8, 1990 pursuant to subsection 75(1) of
the former Act. The Board also gave notice that it
would review the stay pursuant to subsection 76(3)
of the former Act on June 8, 1988.
On June 8, 1988 the Board, consisting of the
same three members, reviewed the stay and direct
ed that there be an oral review of the case on a
date to be fixed by the Registrar. The review was
scheduled for September 1, 1988 and on that date
the same Board panel adjourned it to a further
date to be fixed by the Registrar.
On September 8, 1988, before the Registrar
could set a date for the hearing, the Minister of
Employment and Immigration (the Minister), pur
suant to subparagraph 38(1)(a)(ii) of the Immi
gration Appeal Board Rules (Appellate), 1981
[SOR/81-419], applied to the Board for an order
dismissing the applicant's appeal and directing
that the removal order issued against him be exe
cuted as soon as reasonably practicable.
On November 24, 1988 the Registrar gave
notice that the hearing of the Minister's applica
tion would take place on December 15, 1988 and
that the hearing might entail an oral review of the
stayed removal order.
On December 15, 1988 the Board, consisting of
L. Goodspeed, H. M. Arpin and B. Rayburn, met
to consider the Minister's application and, presum
ably, to conduct an oral review of the stayed
removal order. Before the proceedings commenced
counsel for the applicant objected to the change in
the membership of the Board arguing that the
original panel was seized of the matter and that
only the original panel could proceed with a review
of the stayed removal order. After some discussion
the matter was adjourned indefinitely so as to
permit the within application which was brought
on before me at Winnipeg, Manitoba, on June 20,
1989. The grounds of this application are the same
as those given to the Board which adjourned the
hearing on December 15, 1988 i.e. that the appli
cant is entitled, on a review of his case under
subsection 76(3) of the former Act, to the same
Board panel that originally heard his appeal and
ordered that the execution of the removal order be
stayed.
Neither counsel were able to cite any cases on
point. However, on the view which I take of the
matter, none are necessary because Parliament has
provided for the circumstances of this case in
section 49 of S.C. 1988, c. 35 which provides as
follows:
49. Where the former Board, before, on or after the com
mencement day, has disposed of an appeal by directing that
execution of a removal order be stayed, the Appeal Division
shall review the case from time to time as it considers necessary
or advisable and, for that purpose, subsection 76(3) of the said
Act applies, with such modifications as the circumstances
require, with respect to the stay as if the first reference in that
subsection to the "Appeal Division" were a reference to the
"former Board".
In this matter the former Board, the Immigra
tion Appeal Board constituted under the former
Act, consisting of Goodspeed, Vidal and Rayburn,
disposed of the applicant's appeal pursuant to
paragraph 75(1)(c) of the former Act by directing
that the execution of the removal order be stayed.
The right of review of that order which, under
subsection 76(3) of the former Act was given to
the Immigration Appeal Board was, by section 49
of S.C. 1988, c. 35, given to the newly constituted
Immigration Appeal Division of the Immigration
and Refugee Board, constituted by section 59 of
the Immigration Act, 1976 as amended by section
18 of S.C. 1988, c. 35.
It was argued by counsel for the applicant that
section 48 of S.C. 1988, c. 35 applied to the
circumstances of this case on the grounds that the
December 15, 1988 hearing was an appeal to the
former Board deemed to have been commenced
under the former Act on December 15, 1988 which
was the date on which the applicant appeared
before the Board to request an adjournment of the
hearing of the Minister's application and which
was on a day before the commencement day,
January 1, 1989. The relevant provisions of section
48 of S.C. 1988, c. 35 are as follows:
48. (1) Subject to this section, applications for redetermina-
tion of claims and appeals to the former Board commenced
under the former Act before the commencement day and not
disposed of by the former Board before that day shall be dealt
with and disposed of by the former Board in accordance with
the former Act and the rules thereunder.
(2) For the purposes of subsection (I ), an application for
redetermination of a claim or an appeal is deemed to have been
commenced under the former Act on the first day on which
either party appeared before the former Board, whether to
proceed with the application or appeal or to request an adjourn
ment of the hearing of the application or appeal.
(3) Where an application or appeal referred to in subsection
(1) is not disposed of by the former Board within one year after
the commencement day, the proceedings before the former
Board shall be terminated and the application or appeal shall
be reheard by the Refugee Division or the Appeal Division, as
the case may require, in accordance with the said Act.
In my view that section contemplates appeals
pursuant to section 72 of the former Act or
applications for a redetermination of a claim to be
a Convention refugee pursuant to section 70 of the
former Act, and not a subsequent review or
amendment of the stay of execution order contem
plated by subsection 76(3) of the former Act
which is specifically addressed by section 49, S.C.
1988, c. 35, which directs that, in the circum
stances of this case, subsection 76(3) of the former
Act as amended [S.C. 1988, c. 35, s. 18] be
further amended to read as follows:
76....
(3) Where the former Board has disposed of an appeal by
directing that execution of a removal order or conditional
removal order be stayed, the Appeal Division may, at any time,
(a) amend any terms and conditions imposed under subsec
tion (2) or impose new terms and conditions; or
(b) cancel its direction staying the execution of the order
and
(i) dismiss the appeal and direct that the order be execu
ted as soon as reasonably practicable, or
(ii) allow the appeal and take any other action that it
might have taken pursuant to subsection (1).
In the face of that provision I cannot accept the
submission by counsel for the applicant that the
original Board consisting of Goodspeed, Vidal and
Rayburn, that disposed of the applicant's appeal
under the provisions of paragraph 75(1)(c) of the
former Act by directing that the execution of the
removal order be stayed, remains seized of the
matter thereafter to the exclusion of the Appeal
Division of the Immigration and Refugee Board. It
seems clear to me that the appropriate body to
consider any review of the January 8, 1987 order
of the Immigration Appeal Board, including the
Minister's application made under subparagraph
38(1)(a)(ii) of the Rules, is the Immigration
Appeal Division.
The question of whether the panel of the Immi
gration Appeal Board which was convened on
December 15, 1988 to review the stayed order was
properly constituted does not arise because of the
changes in the legislation enacted by S.C. 1988, c.
35 which was proclaimed in force effective
January 1, 1989.
This application will be dismissed and there will
be no order as to costs.
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.