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A-403-77
Rawle Ramkissoon (Applicant) v.
Minister of Manpower and Immigration (Respondent)
Court of Appeal, Heald and Urie JJ. and MacKay D.J.—Toronto, November 24; Ottawa, December 13, 1977.
Judicial review — Immigration — Deportation order execu ted by applicant's voluntarily leaving before appeal heard by Immigration Appeal Board — Applicant returned subsequent to appeal's dismissal — Ordered deported a second time — Immigration Appeal Board dismissed motion for leave to file appeal from second deportation order, and motion to allow reopening and rehearing of first appeal — Application for judicial review — Immigration Act, R.S.C. 1970, c. I-2, ss. 2, 18, 35 — Immigration Appeal Board Act, R.S.C. 1970, c. 1-3, s. 15 as amended by S.C. 1973-74, c. 27, s. 6 — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
Applicant, who was subject to a deportation order because of a criminal conviction, voluntarily left Canada before his appeal to the Immigration Appeal Board had been heard and dis missed. Sometime after this decision had been made, applicant returned to Canada, and again was ordered deported because of his being subject to a deportation order. Applicant first filed a motion to the Immigration Appeal Board to allow the filing of an appeal from the second deportation order, and later filed a motion to reopen and rehear the appeal from the first deporta tion order. This application seeks to review and set aside the Board's decision to dismiss both motions.
Held, the application is dismissed. The ordinary dictionary meaning of removal is not so narrow as to preclude a person from "removing" himself from Canada to "the place whence he came to Canada". "Remove" is defined, inter alia, in The Shorter Oxford English Dictionary as "to go away or depart from a place" and "to change one's place of residence". Both definitions are capable of including a positive voluntary act on the part of the person concerned. "Removal" from Canada to Trinidad by this applicant was accomplished when applicant voluntarily returned to Trinidad, and the effect of that "remo- val" was to "execute" the first deportation order. Applicant, therefore, was deprived of any status entitling him to appeal against the first deportation order under the equitable jurisdic tion of the Board, for section 15 confers no jurisdiction where the deportation order has been executed. As far as the second deportation order is concerned, the reasons given in Ali v. Minister of Manpower and Immigration, page 277, (supra), apply.
Grillas v. Minister of Manpower and Immigration [ 1972] S.C.R. 577, applied. Ali v. Minister of Manpower and Immigration [1978] 2 F.C. 277, applied.
APPLICATION for judicial review. COUNSEL:
J. Lockyer for applicant.
K. Braid for respondent.
SOLICITORS:
Charles C. Roach, Toronto, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment rendered in English by
HEALD J.: The applicant, a citizen of Trinidad, was granted landed immigrant status in Canada on January 15, 1973. He was ordered deported on February 14, 1974 (the first deportation order) because he was a person described in section 18(1)(e)(ii) of the Immigration Act, in that he was convicted of an offence under the Criminal Code, and also because he was a person described in section 18(1)(e)(iii) of the Immigration Act, being an inmate of a reformatory. The applicant appealed this first deportation order to the Immi gration Appeal Board and the hearing by the Board was held at Toronto on November 17, 1975, with neither the applicant nor his counsel, Rev erend John Robson present. The applicant had left Canada voluntarily to attend the funeral of a close relative on March 16, 1975 and had not returned. By order dated December 8, 1975, the Immigra tion Appeal Board dismissed the applicant's appeal. The applicant returned to Canada around March 13, 1976 and was subsequently ordered deported on November 19, 1976 (the second deportation order) because he was a person described in section 18(1)(e)(ix) of the Immigra tion Act, in that he had returned to Canada after a deportation order had been made, without either an appeal against such order being allowed or without the consent of the Minister. Thus, in the opinion of the Special Inquiry Officer, the appli cant was subject to deportation in accordance with section 35 of the Immigration Act'.
' 35. Unless an appeal against such order is allowed, a person against whom a deportation order has been made and who is deported or leaves Canada shall not thereafter be admitted to Canada or allowed to remain in Canada without the consent of the Minister.
On March 15, 1977, the applicant made a motion to the Immigration Appeal Board for an order allowing the filing of an appeal against the second deportation order. In support of that application, he tendered affidavit evidence indicat ing that he was unaware and uninformed of his right to appeal. This motion was heard by the Immigration Appeal Board and then adjourned until May 11, 1977. On May 6, 1977, the appli cant filed another motion to the Immigration Appeal Board to reopen and rehear the appeal of November 17, 1975 against the first deportation order. These two motions were heard by the Immi gration Appeal Board on May 11, 1977 and were dismissed by a judgment of the Board pronounced on May 13, 1977. The reasons of the Board for this judgment are dated June 6, 1977.
This section 28 application asks the Court to review and set aside the judgment of the Immigra tion Appeal Board pronounced on May 13, 1977 in respect of both of the motions referred to supra.
Dealing firstly with the second deportation order, I would dismiss the section 28 application in respect of that order for the reasons given by me in the case of Ali v. Minister of Manpower and Immigration 2 . Those reasons apply with equal force, in my opinion, to the facts here present in so far as the second deportation order is concerned.
I turn now to the motion to the Immigration Appeal Board to reopen and rehear the appeal of November 17, 1975 against the first deportation order. The Immigration Appeal Board decided that since the applicant had gone back to Trinidad voluntarily in March of 1975, he had in effect executed his own deportation order and for that reason, the Board was of the view that it had lost jurisdiction to reopen applicant's appeal. The Board expressed the view that while the majority of the Supreme Court of Canada had held in the
2 See page 277 supra.
Grillas case' that the Board had jurisdiction to reopen an appeal on the basis of new evidence relevant to its equitable jurisdiction under section 15 of the Immigration Appeal Board Act, such jurisdiction being a continuing jurisdiction, that such continuing jurisdiction came to an end upon the execution of a deportation order. The Board, in support of that opinion, quoted the reasons of Abbott J. who delivered reasons on behalf of him self and Judson J., where he said at page 582:
For the reasons given by my brother Martland, I agree that, until a deportation order has actually been executed, the Board is entitled, as it did in this case, to reopen an appeal, hear new evidence and, if it sees fit to do so, to revise its former decision and exercise its discretion under s. 15 to allow an appellant to remain in Canada.
In his submissions to this Court, counsel for the applicant submitted that the observations of Abbott J. referred to supra, were not concurred in by the majority of the Supreme Court of Canada in the Grillas case (supra), and were therefore not binding on this Court. Counsel further submitted that even if those comments were binding, they did not apply to the facts of this case because, since this applicant left Canada. voluntarily to attend a funeral, his departure was not an "execution of the deportation order". Counsel submitted that a deportation order can only be "executed" by offi cials of the Immigration Department and in sup port of this view, he referred to the definition of deportation order as contained in section 2 of the Immigration Act. That definition reads as follows:
"deportation" means the removal under this Act of a person from any place in Canada to the place whence he came to Canada or to the country of his nationality or citizenship or to the country of his birth or to such country as may be approved by the Minister under this Act, as the case may be;
Counsel submitted that the word "removal" in the above definition clearly implies removal by the Immigration Department.
' Grillas v. Minister of Manpower and Immigration [1972] S.C.R. 577.
With deference, I am unable to agree that the ordinary dictionary meaning of "removal" is so narrow as to preclude a person from "removing" himself from Canada to "the place whence he came to Canada" which is exactly what transpired in the case at bar. "Remove" is defined, inter alia, in The Shorter Oxford English Dictionary as "to go away or depart from a place" and "to change one's place of residence". Both of these definitions are capable of including a positive voluntary act on the part of the person concerned. Thus, in my view, on the facts here present, "removal" from Canada to Trinidad by this applicant was accom plished on March 16, 1975 and the effect of that "removal" was to "execute" the first deportation order. Accordingly, it seems to me that the legal effect of the applicant's voluntarily leaving Canada was that he was thereby deprived of any status entitling him to appeal against the first deportation order under the equitable section 15 jurisdiction of the Board. I have formed this opin ion after a detailed consideration of the powers conferred upon the Board under the various sub sections of section 15. Subsection (1) confers that equitable jurisdiction after the Board has dis missed an appeal from a deportation order and in certain circumstances empowers the Board to stay execution of the deportation order or to quash the order or to quash the order and direct entry or landing. Subsection (2) also relates to cases where the Board has ordered a stay of execution of the deportation order. Subsection (3) empowers the Board to amend the terms of the stay or to cancel it. Subsection (4) empowers the Board to quash the order staying execution and, in certain cases, to quash the order staying and to direct entry or landing. Nowhere in section 15 is the Board clothed with jurisdiction to take any action in cases where the deportation order has been execu ted. All of the powers conferred upon the Board under section 15 relate to possible action before the execution of the deportation order.
Accordingly, and for the reasons above stated, I agree with the Immigration Appeal Board that the Board had lost its jurisdiction to reopen the hear ing with regard to the first deportation order.
The section 28 application must therefore be dismissed in respect of the motion to reopen and rehear the appeal against the first deportation order as well.
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URIE J. concurred.
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MACKAY D.J. concurred.
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