T-4882-80
Jose Augustin Vega Chacana (Applicant)
v.
Immigration Appeal Board and A. B. Weselak, B.
M. Suppa and W. Hlady as members of the said
Board (Respondents)
Trial Division, Jerome A.C.J.—Toronto, Novem-
ber 17; Ottawa, November 21, 1980.
Practice — Application for writ of mandamus ordering
respondents to consider an application for a redetermination of
status, and for writ of certiorari to quash Board's order
refusing application for redetermination — Board's refusal
was based on lack of jurisdiction because application was not
filed within stipulated time limits — Whether Board made a
decision within the meaning of s. 28 of the Federal Court Act
so that the matter was subject to review by Court of Appeal, or
whether the matter was properly before Trial Judge pursuant
to s. 18 — Application dismissed as Board's action was a
decision within meaning of s. 28 — Immigration Act, 1976,
S.C. 1976-77, c. 52, s. 71(1) — Federal Court Act, R.S.C.
1970 (2nd Supp.), c. 10, ss. 18, 28.
Attorney General of Canada v. Cylien [1973] F.C. 1166,
distinguished.
APPLICATION for judicial review.
COUNSEL:
G. W. Bell for applicant.
G. R. Garton for respondents.
SOLICITORS:
Parkdale Community Legal Services,
Toronto, for applicant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for order ren
dered in English by
JEROME A.C.J.: This is an application for a writ
of mandamus ordering the respondents to consider
an application for a redetermination pursuant to
section 71(1) of the Immigration Act, 1976, S.C.
1976-77, c. 52 and for a writ of certiorari in aid to
quash the order of the Immigration Appeal Board
made the 22nd day of September 1980, refusing
the said application for a redetermination.
The decision of the Immigration Appeal Board
is brief and reads as follows:
This is an application for a redetermination of a claim to be a
Convention refugee filed by Jose Agustin [sic] Vega CHACANA
pursuant to Section 70 of the Immigration Act, 1976.
By letter dated 22nd May, 1980 the Minister advised the
applicant, pursuant to subsection 45(1) of the Immigration Act,
1976, that he was not a Convention refugee as defined in
subsection 2(1) of the said Act. An Affidavit of Service evi
dences that this letter was sent to the applicant on 16th June,
1980 by registered mail. The record also evidences that the
applicant filed his application for a redetermination of a claim
to be a Convention refugee on 24th June, 1980.
Subsection 40(1) of the Immigration Regulations, 1978, as it
read in the month of June, 1980, provided that an application
for a redetermination from the refusal by the Minister is
required to be filed within seven days after the applicant was so
informed.
Subsection 70(1) of the Immigration Act, 1976 provides as
follows:
"70(1) A person who claims to be a Convention refugee and
has been informed in writing by the Minister pursuant to
subsection 45(5) that he is not a Convention refugee may,
within such period of time as is prescribed, make an applica
tion to the Board for a redetermination of his claim that he is
a Convention refugee."
Section 81 of the Immigration Act, 1976 also provides:
"81 A person who proposes to appeal to the Board shall give
notice of the appeal in such manner and within such time as
is prescribed by the rules of the Board."
Rule 5 of the Immigration Appeal Board Rules, 1978 reads,
as follows:
"5. Where service is effected by registered mail, the effective
date of such service shall be the date of mailing."
Subsection 25(6) of the Interpretation Act, 1967-68, c. 7, s.
1, defines "within a time" as being:
"(6) Where anything is to be done within a time after, from,
of or before a specified day, the time does not include that
day."
In this case, the time expired on 23rd June, 1980 which was a
Monday and not a holiday.
The Board therefore finds that the application was not filed
within the seven days and orders that the application for
redetermination be and the same is refused for want of
jurisdiction.
Counsel are agreed that the Board was in error
in requiring the application to be filed within 7
days of mailing and should have allowed the appli
cant 7 days from actual receipt of the Minister's
decision. Wherefore, the only question to be deter
mined is whether within the meaning of section 28
of the Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, the Board has made a "decision" so
that the matter is properly subject to review by the
Court of Appeal, or whether the matter is properly
before me pursuant to section 18. The applicant's
submission was based on the reasoning of the then
Chief Justice Jackett in The Attorney General of
Canada v. Cylien'. The following excerpt from the
headnote is helpful:
On August 30, 1973 the respondent appealed from a deporta
tion order and on September 5, 1973 made a declaration
explaining why he was claiming status as a "refugee". A panel
of three members of the Board made an order directing that the
"record" of the inquiry leading up to the deportation order be
transmitted to the Board under Regulation 4(4)(a). The Attor
ney General of Canada applied for judicial review under section
28 of the Federal Court Act submitting that the Board was
required to decide whether the appeal was to proceed upon a
consideration of the "declaration" alone and not upon a review
of the "record".
Held, the application is dismissed. The Board's conclusion as
to the nature of its statutory duty under section 11(3) is not a
decision made by it in the exercise of its "jurisdiction or
powers" to make decisions and is not, therefore, a "decision"
that this Court has jurisdiction to set aside under section 28(1)
of the Federal Court Act.
and from the decision at page 1173:
In National Indian Brotherhood v. Juneau [1971] F.C. 66 at
pages 77 et seq. I discussed, without deciding, some of the
problems that may arise in determining the ambit of the words
"decision or order" in section 28(1). The portion of the reasons
in the case to which I refer reads, in part, as follows:
Probably the most important question that has to be
decided concerning the application of s. 28(1) is the question
as to the meaning of the words "decision or order". Clearly,
those words apply to the decision or order that emanates
from a tribunal in response to an application that has been
made to it for an exercise of its powers after it has taken such
steps as it decides to take for the purpose of reaching a
conclusion as to what it ought to do in response to the
application. I should have thought, however, that there is
some doubt as to whether those words—i.e., decision or
order—apply to the myriad of decisions or orders that the
tribunal must make in the course of the decision-making
process. I have in mind decisions such as
(a) decisions as to dates of hearings,
(b) decisions on requests for adjournments,
(c) decisions concerning the order in which parties will be
heard,
(d) decisions concerning admissibility of evidence,
(e) decisions on objections to questions to witnesses, and
(/) decisions on whether it will permit written or oral
arguments.
' [1973] F.C. 1166.
Any of such decisions may well be a part of the picture in an
attack made on the ultimate decision of the tribunal on the
ground that there was not a fair hearing. If, however, an
interested party has a right to come to this Court under s. 28
on the occasion of every such decision, it would seem that an
instrument for delay and frustration has been put in the
hands of parties who are reluctant to have a tribunal exercise
its jurisdiction, which is quite inconsistent with the spirit of s.
28(5).
I also have doubts as to whether a refusal by a tribunal to
entertain an application or its decision to embark on an
inquiry is a decision that falls within s. 28(1). It may well be
that, in respect of such matters, the dividing line falls
between decisions of a tribunal before it embarks, and com
pletes, its processing of a matter, where a party must proceed
by one of the old Crown writ proceedings and build a case
upon which the Court may decide whether he is entitled to
relief, and decisions based on a case which has been made
before the tribunal, where the Court of Appeal may base its
decision on what was or was not done before the tribunal.
I do not pretend to have formulated any view as to what
the words "decision or order" mean in the context of s. 28(1),
but it does seem to me that what is meant is the ultimate
decision or order taken or made by the tribunal under its
statute and not the myriad of incidental orders or decisions
that must be made in the process of getting to the ultimate
disposition of a matter.
and finally at page 1176:
What we are concerned with here is something different. The
Board has "jurisdiction or powers" under section 11(3) to
decide at a preliminary stage whether the respondent's appeal is
to be allowed to proceed or not. It has not, however, made that
decision as yet. The problem that has arisen, and in respect of
which the Board has taken a position, is whether section 11,
properly interpreted, requires the Board to make its section
11(3) decision after considering the section 11(2) declaration,
and nothing else, or whether the statute requires or permits the
Board to consider other material before it makes that decision.
This is a question of law that the Board has no "jurisdiction or
powers" to decide. It must, of course, form an opinion on that
question but that opinion has no statutory effect.
Obviously, there are elements of both kinds of
decisions in the matter before us, since on the one
hand, we are dealing not with the merits of the
dispute but only with the question of compliance
with the time limits laid down in the Regulations.
On the other hand, the Board is not deciding a
matter incidental to the progress of the application
but is making a determination that the application
must be refused. In my opinion, it is this latter
aspect that creates a clear distinction from the
Cylien case.
I am also of the view that the reference in the
Board's decision to jurisdiction is somewhat mis
leading because, again, unlike the Cylien case,
there is no attempt here by the Board to define its
own jurisdiction in the substantive sense, but
rather a conclusion that the Board is without
jurisdiction only because the applicant failed to
comply with the time limits specified in the Regu
lations, SOR/78-172, under the Immigration Act,
1976.
The Board here, has received and considered an
application, has made certain findings of fact and
has interpreted the relevant provisions of the
Immigration Act, 1976 in respect to those facts
and as a result has determined that the application
cannot proceed. Furthermore, it appears to me
that the effect of the latter portion of section 71(1)
of the Immigration Act, 1976 which I have under
lined in the following quotation is that an automat
ic determination of the status of the applicant
follows from the action of the Board in refusing to
permit the application to proceed:
71. (1) Where the Board receives an application referred to
in subsection 70(2), it shall forthwith consider the application
and if, on the basis of such consideration, it is of the opinion
that there are reasonable grounds to believe that a claim could,
upon the hearing of the application, be established, it shall
allow the application to proceed, and in any other case it shall
refuse to allow the application to proceed and shall thereupon
determine that the person is not a Convention refugee.
For these reasons, I am of the opinion that the
action of the Board is a decision within the mean
ing of section 28 of the Federal Court Act and that
this matter ought to be brought before the Court
of Appeal in accordance with the provisions of that
section and I therefore dismiss this application.
ORDER
For the reasons stated above, this application is
dismissed.
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