Digests

Ye v. Canada (Minister of Citizenship and Immigration)

IMM-7369-03

2004 FC 964, Kelen J.

7/7/04

13 pp.

Judicial review of Immigration and Refugee Board (Appeal Division) (IAD) decision denying applicant's motion to reopen appeal of removal order dismissed by IAD--Applicant citizen of China--On March 25, 1999, applicant granted status of permanent resident as sponsored fiancée of permanent resident--As part of conditions of landing, applicant and fiancé had to marry within 90 days of arrival in Canada--Marriage never took place--Applicant admitted contravention of conditions of landing--Departure order issued against her on March 30, 2001--IAD dismissed appeal therefrom--Judicial review of this decision dismissed--IAD denied motion to reopen appeal based on new evidence relating to family circumstances, finding Immigration and Refugee Protection Act (IRPA), s. 71 allows reopening appeal only when applicant successfully demonstrates breach of principle of natural justice--Whether IAD erred in interpretation and application of Act, s. 71-- Supreme Court of Canada, in Grillas v. Minister of Manpower and Immigration, [1972] S.C.R. 577, held Immigration Appeal Board (as then named) entitled to reopen appeal to hear new evidence if it sees fit to do so and revise former decision because it has continuing jurisdiction to decide if person should be allowed to remain in Canada--Application of four principles of statutory construction--(1) Maxim expressio unius est exclusio alterius means expression of one thing is exclusion of another--When Parliament specifies in law when IAD can reopen appeal, Parliament implicitly expressing intention to exclude all other grounds--(2) In French, IAD can reopen appeal "sur preuve de" (upon proof of) denial of natural justice, meaning such proof condition precedent to reopening--(3) Implied exclusion rule means specifying in s. 71 right to reopen appeal with respect to breach of natural justice means Parliament intended part of common law not expressly mentioned to be excluded --Accordingly right to reopen appeal on equitable grounds implicitly excluded--(4) Legislative history includes explanation of s. 71 presented to Parliament--Explanation "clearly limits reopenings to instances where there has been a breach of the common law principle of natural justice"--States s. 71 to prevent opportunity to reopen appeal from being used as tactic to delay removal--Thus s. 71 limits jurisdiction of IAD to reopen appeals and implicitly excludes common-law jurisdiction to reopen appeals to permit appellant to present additional or new evidence--Applicant came to Canada and stayed illegally while challenging respondent's right to remove illegal immigrant through multiple legal proceedings-- Applicant has been before IAD twice, to Federal Court twice and to B.C. Provincial Court--Also subject of multiple proceedings before different adjudication tribunals, boards and decision makers under immigration legislation--Parliament limited right of Board to reopen appeal to only cases involving breaches of rules of natural justice--Application dismissed-- Question certified: does s. 71 of IRPA extinguish common law continuing "equitable jurisdiction" of IAD to reopen appeal except where IAD failed to observe principle of natural justice?--Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 71.